Abstract
It is no secret that public defenders across the country struggle with arguably excessive caseloads that limit the effectiveness of the representation they can provide. Excessive caseloads force public defenders to triage cases, a practice which is regarded as unethical because it creates a conflict of interest among a lawyer’s existing clients. In order to avoid excessive caseloads, public defenders are ethically obligated to refuse cases, something which rarely occurs.
This Essay calls into question how the Model Rules of Professional Responsibility should be applied to public defenders. It argues that the dynamics of the traditional attorney-client relationship that the Model Rules assume exist in a free legal marketplace fail to accurately reflect the attorney client relationship in assigned-counsel systems. It discusses how the threat of professional discipline for lawyers with excessive caseloads is inappropriate and counterproductive. The Essay also discusses how a variety of factors, like systemic underfunding, altruistic motives, and the inherent difficulty of estimating workloads, create a triage trap for public defenders. Lastly, the Essay concludes that the proper response to the excessive-caseloads problem is not case refusal but caseload transparency: Public defenders should be ethically required to disclose their existing caseloads to both their clients and the court. Doing so would motivate defendants to refuse the representation being offered by public defenders and create a pro se crisis in our courts, which has the potential to finally stop assembly-line justice.
