Pleading the Sixth: As if excessive caseloads, a lack of independence, inadequate funding, and low compensation were not enough of a problem for those charged with providing right to counsel services in Missouri, public defenders are now being forced into a Hobson’s choice: either provide ineffective representation and lose one’s law license, or refuse assignments and be held in contempt of court. The 6AC unpacks the “Perfect Storm” that is currently raging in Missouri and may soon be coming to a jurisdiction near you.
The Missouri Rules of Professional Conduct, enforced by the Office of Disciplinary Counsel and the Missouri Supreme Court, state that a lawyer has a duty to provide effective representation to each and every one of his clients and to decline cases if he is not able to effectively represent one more client.1 Violating these rules may result in an attorney losing his license to practice law. On September 12, 2017, this exact scenario played out when the Missouri Supreme Court disciplined a 21-year veteran public defender by putting his law license on probation because he failed to both diligently represent his clients and to keep his clients reasonably informed about the status of their cases.
As KCUR recently reported, the punishment of this one lawyer has public defense attorneys throughout the state in a panic, because the Missouri legislature requires public defense attorneys to take every case appointed to them by a judge, without regard to whether they believe they have too many cases or can effectively handle one more.2 If an attorney declines an appointment, he can be held in contempt by the appointing judge. This is all “leading to a growing standoff between judges and public defender attorneys,” as KCRU wrote, because public defense attorneys are caught between the Supreme Court threatening their law licenses for providing unethical representation and the local courts threatening them with contempt for refusing cases.
Many factors have coalesced over the past several decades in Missouri to form the “perfect storm” now threatening the ability of the state to uphold its duties under the Fourteenth Amendment to provide effective Sixth Amendment right to counsel services and bringing the indigent defense system to the brink of collapse. Since these same factors negatively affect many right to counsel systems across the country, public defenders in other states may soon be facing similar ethical quandaries. Let us explain.
The ABC’s of Missouri’s right to counsel services
The Missouri Public Defender Commission (MPDC) is a seven-member body appointed by the Governor with the advice and consent of the Senate.3 It oversees the state-funded Office of State Public Defender4 (MSPD), which provides services through three divisions:
- The Capital Litigation Division represents defendants facing the death penalty at all levels of their case from trial through the United States Supreme Court;5
- The Appellate/Post-Conviction Relief Division handles appeals and post-conviction proceedings after a person is convicted of a non-capital felony;6 and,
- The Trial Division provides representation in all non-capital cases at the trial court level through 33 trial-level public defender offices serving adult and juvenile clients in 45 judicial circuits covering the state’s 115 counties.7
Unlike many other state public defender systems that have a separate system for conflict representation, the Missouri public defender system assigns a neighboring public defender office to provide representation in most multiple defendant and other conflict cases.8 Such a practice violates the national standards explained in ABA Principle 2, requiring that where the “caseload is sufficiently high,” a “public defense delivery system consists of both a defender office and the active participation of the private bar.” Missouri uses private attorneys in less than 5% of all cases.9
Over-reliance on public defenders in this manner contributes to a vicious cycle in which historical underfunding of MSPD keeps attorney compensation low, making it difficult to retain lawyers in the face of excessive caseloads. When public defenders resign, their cases are reassigned to the remaining staff – rather than the private bar – exacerbating the workload issues that contribute to attorneys leaving the system in the first place.
Perfect Storm Factor #1: Inadequate Funding
For the fiscal year beginning July 1, 2014, lawmakers appropriated an additional $3.4 million to MSPD to contract with more private attorneys, but the then-Governor vetoed the spending. When the legislature overrode the veto, he simply withheld the funds. Again for the fiscal year beginning July 1, 2016, the legislature added $4.5 million to MSPD’s appropriation, and the then-Governor cut it down to only $1 million.
MSPD and the Commission sued the Governor for withholding funds the legislature had appropriated. In frustration, MSPD chief public defender Michael Barrett appointed the Governor to represent an indigent defendant. All of this led to national attention from the St. Louis Post-Dispatch, the ABA Journal, The Atlantic, the New York Times, and National Public Radio, just to name a few. The 6AC took time to explain the long-standing constitutional crisis in providing counsel for the poor, noting that throwing money at the problem is not the only available solution.
In March 2017, the ACLU and others filed a class action lawsuit on behalf of all indigent adults and juveniles who are charged with any offense that carries the potential for incarceration as a penalty and who are eligible to be represented by the MSPD. The complaint alleges that “[f]or more than two decades, [the State of Missouri has] failed to provide the resources required to adequately represent poor people accused of crime in Missouri, leading to the actual and constructive denial of counsel for, and ineffective representation of, indigent defendant across the State.”
Specifically, the plaintiffs say the budget for indigent defense is “shockingly inadequate,” leading to attorneys handling too many cases and devoting too few hours to each case. And this leads to many poor people needlessly sitting in jail for prolonged periods until their public defender has time to work on their case, while they have little to no communication with their appointed attorney. The complaint alleges many ways in which the state is actually or constructively denying the right to counsel at critical stages of cases, including: absence of attorneys at arraignments and hearings to set bond; attorneys appearing unprepared to effectively advocate for a client; attorneys failing to meet and talk with clients, preventing indigent defendants from meaningfully participating in their own defense; failure to investigate; and failure to obtain and review discovery. “The lack of funding for MSPD has created an environment in which no public defender in [Missouri] can provide constitutionally adequate representation for all of their clients,” states the complaint. The lawsuit asks the court to declare that Missouri’s public defense system is unconstitutional and to order the defendants to take the steps “necessary to bring the system into compliance with federal and state law.” The case was removed to federal court on April 7, 2017, where it is now pending.
Meanwhile, the number of staff and contract attorneys that MSPD can provide to handle the current caseload is limited by the number of positions and amount of funding the legislature allows.
(As 6AC has previously written, a lack of independence from undue political interference is also a hallmark of the Missouri system that exacerbates the inadequate funding of the right to counsel.)
Perfect Storm Factor #2: Low retention of attorneys due to inadequate compensation
To attract and retain lawyers to work as full-time staff attorneys, an indigent defense system needs to pay public defenders a living wage; after all, if a person can make more money teaching school or selling washing machines than by practicing law, there is little reason to remain in a high-stress position. Importantly, the need for lawyers who represent the poor to be adequately compensated does not arise out of concern for the welfare of the attorneys. Instead, adequate compensation for the attorney is required to ensure that the attorney provides effective representation to each client.
In 2006, a report by the Missouri Personnel Advisory Board showed that the salaries for staff public defense attorneys in Missouri were 35% lower than those in surrounding states. In 2016, the starting salary for full-time assistant public defenders was $39,708.10 If the attorneys work only 2000 hours a year,11 this is an hourly rate of $19.85. However, a 2012 audit report by the Missouri State Auditor found that MSPD employees on average worked 67 hours each year for which they were not compensated at all and were forfeiting an average 45 hours of annual leave each year. As the Public Defender Commission’s annual report for 2016 observes, while being paid these low salaries, many MSPD attorneys are suffering under “staggering student debt loans ($60,000 — $200,000) [that] make it extremely difficult for even those who are passionate about public interest work to continue with MSPD if they want to also make loan payments and provide for their families.”12
The situation is not much better for attorney managers. For example, District Defenders who head each of the public defense system’s district offices could nearly double their salaries by running for election as a prosecutor – these chief defenders on average earn $79,601 while the elected prosecutors are paid $136,402.
MSPD has struggled to retain staff attorneys for over two decades, as illustrated by this graph from its 2016 annual report:
Perfect Storm Factor #3: Continuing excessive workload
No matter how many cases & clients an attorney is assigned to handle, no matter how complex or basic a case may seem at the outset, no matter how little or much time an attorney wants to spend on a case, and no matter how financial matters weigh on an attorney, the attorney is required to carry out certain fundamental tasks on behalf of every client in every case. Even in the simplest misdemeanor case, the attorney must, among other things:
- meet with and interview the client;
- attempt to secure pretrial release if the client remains in state custody (but, before doing so, learn from the client what conditions of release are most favorable to the client);
- keep the client informed throughout the duration of proceedings;
- request and review discovery from the prosecution;
- independently investigate the facts of the case, which may include learning about the defendant’s background and life, interviewing both lay and expert witness, viewing the crime scene, examining items of physical evidence, and locating and reviewing documentary evidence;
- assess each element of the charged crime to determine whether the prosecution can prove facts sufficient to establish guilt and whether there are justification or excuse defenses that should be asserted;
- prepare appropriate pretrial motions and read and respond to the prosecution’s motions;
- prepare for and appear at necessary pretrial hearings, wherein he must preserve his client’s rights;
- develop and continually reassess the theory of the case;
- assess all possible sentencing outcomes that could occur if the client is convicted of the charged crime or a lesser offense;
- negotiate plea options with the prosecution, including sentencing outcomes; and
- all the while prepare for the case to go to trial (because the decision about whether to plead or go to trial belongs to the client, not to the attorney).
The lawyer owes all of these duties to every client in every case, and so Missouri’s Rules of Professional Conduct require that “[a] lawyer’s work load must be controlled so that each matter can be handled competently.”13 National standards, as summarized by the ABA, agree that “[d]efense counsel’s workload [must be] controlled to permit the rendering of quality representation.”14
Missouri’s public defense system does not have any control over the number of clients and cases it is required to handle each year. The Missouri legislature has mandated that MSPD will provide a lawyer to represent every indigent person who is entitled to public counsel under the U.S. Constitution and Missouri’s Constitution and statutes, while law enforcement officers and prosecutors control how many people come into the system.
One of the earliest reports evaluating Missouri’s public defender system in 2005 warned that: “Under the current conditions of the Missouri State Public Defender System, some public defender attorneys are faced with violating both the Missouri Rules of Professional Conduct and Public Defender Guidelines for Representation each day.”15 A Missouri legislative committee echoed this in 2006 stating, “the probability that public defenders are failing to provide effective assistance of counsel and are violating their ethical obligations to their clients increases every day.”16
In 2006, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued a formal ethics opinion discussing the ethical responsibilities that public defense attorneys and systems have when they are given excessive caseloads. In summary, that opinion says:
“If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients. If the clients are being assigned through a court appointment system, the lawyer should request that the court not make any new appointments. . . . Lawyer supervisors, including heads of public defenders’ offices . . . must make reasonable efforts to ensure that the other lawyers in the office conform to the Rules of Professional Conduct. To that end, lawyer supervisors must, working closely with the lawyers they supervise, monitor the workload of the supervised lawyers to ensure that the workloads do not exceed a level that may be competently handled by the individual lawyers.”
MPDC subsequently adopted a rule,17 taking effect in July 2008, about the hours each public defender office needed to handle all the cases it was assigned. The rule authorized MSPD to begin turning away excess cases whenever the hours needed to handle all of an office’s cases had exceeded its available hours for three months in a row. Unfortunately, the Commission’s efforts to ensure that its lawyers could provide ethical, effective representation to every client were short-lived, even though by “July 2009, every Missouri public defender office was over its calculated capacity.”18
In December 2009, after MSPD had turned away certain types of cases in some districts and trial judges appointed MSPD anyway, the Missouri Supreme Court held that the Commission could not makes rules allowing the MSPD to turn away certain categories of cases while accepting other categories.19 Instead, the court said, the public defender should notify the presiding judge and prosecutors when it was necessary to decline additional cases, so that they could all talk together and work out a way to “reduce the demand for public defender services.”20 During 2010 through 2013, whenever an office had too many cases, MSPD notified the judges and prosecutor of its intent to decline all cases (not just certain types of cases), and its authority to do so was upheld by Missouri’s high court:
“This Court holds and reaffirms that the Sixth Amendment and this Court’s ethics rules require that a court consider the issue of counsel’s competency, and that counsel consider whether accepting an appointment will cause counsel to violate the Sixth Amendment and ethical rules, before determining whether to accept or challenge an appointment.”21
In response, the 2013 Missouri legislature enacted new laws, expressly prohibiting the Commission or the MSPD itself from turning away cases because of excessive caseloads, requiring that motions be filed attorney-by-attorney (rather than on behalf of an entire office) whenever an attorney believes he has an excessive caseload, and requiring that attorneys continue to accept new cases unless and until a trial judge or higher court relieves them of that obligation.22 Notably, the 2013 legislation also gave judges the authority to directly appoint private attorneys to represent indigent defendants and to do so without paying them.23
In 2014, the American Bar Association sponsored a study of public defense attorney workloads in Missouri, conducted by a highly regarded accounting firm. After extensive data analysis, the study set out the average number of hours a Missouri public defender should spend on each type of case to provide effective assistance of counsel, as well as the average number of hours Missouri public defenders are actually devoting to each of these case types.24 Based on 2014 numbers, MSPD needed an additional 169.5 attorneys to meet constitutional requirements,25 and by 2016 the number of additional attorneys needed had risen to 269.26
At the beginning of FY 2016, Missouri’s 313 trial division attorneys had 31,738 open cases and they were assigned another 76,150 during that year, for a total of 107,888 cases during FY 2016. This works out to 344.7 cases worked on by each trial attorney during FY 2016. For the 36.5 appellate/PCR attorneys, they began the year with 1,827 cases and received 1,630 more during the year, for a total of 3,457 cases – 94.7 cases each. The 16 capital attorneys had 84 cases at the beginning of the year, plus 34 more added, totaling 118 over the course of 2016. On average, each capital attorney handled 7.4 cases where their clients were facing the death penalty.
How the prefect storm resulted in the probation of a public defender’s law license
All of this is a lot of numbers to think about, but for the public defender whom the Supreme Court disciplined it was the perfect storm of inadequate funds, low attorney retentions, and excessive caseloads that resulted in the suspension of his license to practice law.
The public defender attorney in question worked in the MSPD’s Appellate/PCR division.27 In 2014, MSPD received a letter from one of the public defender’s clients asking about the progress of his case.28 A supervisor determined that the defender was not handling seven cases appropriately and reassigned those cases to a different public defender in a different office.29 The supervisor then set up an employee improvement plan with numerous requirements geared toward protecting clients, and instructed the public defender attorney to let management know if he were ever again in a situation where he could not get all of his work done in a timely fashion.30
By the time the disciplinary counsel’s office held a hearing in July 2016, both the public defender attorney and his supervisor believed there had been “a marked improvement in his performance.”31 The supervisor testified that the public defender attorney was an extremely hard worker who “filed more amended motions and had more court hearings than anyone else in his office.”32 As a result, his supervisor acknowledged, he had been assigning too much work to the attorney.33
This public defender attorney was handling 110 cases in 2016,34 a number slightly above the average number of cases other attorneys in the division were handling (94.7).35 By 2016, MSPD public defenders were not allowed to decline cases based on an excessive caseload. Even though this public defender believed “his workload includes an unreasonable number of cases,” he thought that if he tried to turn away any new cases he “would probably get fired.”36
This example is not an anomaly. Two judges have now lodged ethics complaints against two other public defenders.
Missouri State Public Defender, Michael Barrett, sums it up best in his interview with KCUR:
“If I was a cartoonist for a newspaper, I’d draw a picture of a public defender whose got two guns pointed at him from either side of his head: On one side, the (Office of Chief Disciplinary Counsel) and the Supreme Court saying, ‘I dare you to take that case and I’m going to take your law license.’ On the other side is the local court who says, ‘I dare you to not take that case. And I’ll hold you in contempt.’ that’s our world right now.”
Meanwhile, poor people charged with crimes and facing jail are left with few choices: either no attorney at all; an unpaid unqualified private attorney; or an overworked public defender who cannot provide effective assistance of counsel without risking contempt, loss of license, or loss of job.
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- Mo. R. Prof. Conduct R. 4-1.7 and comments (2007).
- Mo. Rev. Stat. § 600.042.4. (2016).
- Mo. Rev. Stat. § 600.015 (2016).
- Mo. Rev. Stat. § 600.019 (2016).
- The Capital Litigation Division has 16 attorneys, divided among three office locations in St. Louis, Kansas City, and Columbia.
- The Appellate/PCR Division has 36.5 attorneys, working from six separate offices: two offices each in St. Louis, Kansas City, and Columbia;
- The Trial Division’s 313 attorneys are spread across 33 area offices that each handle the cases of the indigent children and adults charged in any of the courts located within that office’s area. Some of these trial level offices are responsible for only one county, but most serve three to five counties, and one office covers all the courts in eleven counties – the attorneys in these offices can spend a lot of driving time getting from one case to the next.
- Even in a state like Missouri with a full-time statewide public defender office, it is still necessary to appoint private attorneys to represent some indigent defendants. This is because U.S. Supreme Court case law and attorneys’ ethical rules say that an attorney cannot handle any case in which he has a conflict of interest. The most common kind of conflict of interest arises when two or more defendants are charged with committing a crime together, because their interests are likely to be at odds with each other, so a single lawyer cannot effectively represent both of them. In this situation, the U.S. Supreme Court says each codefendant must have his own separate lawyer. Holloway v. Arkansas, 435 U.S. 475 (1978); Glasser v. United States, 315 U.S. 60 (1942). A second kind of conflict arises when a lawyer has so many clients that the lawyer no longer has sufficient time or sufficient funding to devote to the next client’s case – a situation often referred to as “case overload” or “excessive workload.”
- MSPD pays private attorneys a flat fee for each case, based on the seriousness of the case. Fees are: $375 for a misdemeanor or probation violation; $500 to $750 for a juvenile delinquency case; $750 to $8,000 for non-capital felonies; $10,000 for a first degree murder; and $3,750 for a direct appeal unless the lawyer also handled the trial, in which case he is paid only half. MSPD pays the private attorneys an additional fee if a case goes to trial: for bench trials, $750 for each full day of trial; for jury trials, $1,500 for the first day and $750 for each additional full day.
- State of Missouri Public Defender Commission, Fiscal Year 2016 Annual Report 8.
- The 6AC uses 2000 hours as a benchmark assuming attorneys are intended to work 40 hours each week and have 2 weeks of leave time.
- State of Missouri Public Defender Commission, Fiscal Year 2016 Annual Report 8.
- Mo. R. Prof. Conduct R. 4-1.3 (2007).
- ABA-SCLAID, Ten Principles of a Public Defense Delivery System, Principle 5, at 2 (Feb. 2002).
- The Spangenberg Group, Assessment of the Missouri State Public Defender System 3 (Oct. 26, 2005).
- See State ex rel. Missouri Pub. Def. Comm’n v Pratt, 298 S.W.3d 870, No. SC89882, at 11 (Mo., Dec. 8, 2009) (en banc).
- See Missouri State Auditor, Missouri State Public Defender [audit report] 65-71 (Oct. 2012).
- See State ex rel. Missouri Pub. Def. Comm’n v Pratt, 298 S.W.3d 870, No. SC89882, at 15 (Mo., Dec. 8, 2009) (en banc).
- See State ex rel. Missouri Pub. Def. Comm’n v Pratt, 298 S.W.3d 870, No. SC89882, at 23-24 (Mo., Dec. 8, 2009) (en banc).
- See State ex rel. Missouri Pub. Def. Comm’n v Pratt, 298 S.W.3d 870, No. SC89882, at 29 (Mo., Dec. 8, 2009) (en banc).
- State ex rel. Missouri Pub. Def. Comm’n v. Waters, 370 S.W.3d 592 (Mo., July 31, 2012) (en banc).
- Mo. A.L. 2013 H.B. 215 (enacting Mo. Rev. Stat. §§ 600.062, 600.063, and 600.064).
- Mo. Rev. Stat. § 600.064 (2016).
- RubinBrown, The Missouri Project: A Study of the Missouri Public Defender System and Attorney Workload Standards 6, 15 (June 2014).
- State of Missouri Public Defender Commission, Fiscal Year 2016 Annual Report 17.
- In re Hinkebein, No. SC96089, Informant’s Brief at 29 (Mo., filed Apr. 28, 2017).
- In re Hinkebein, No. SC96089, Informant’s Brief at 9 (Mo., filed Apr. 28, 2017).
- In re Hinkebein, No. SC96089, Informant’s Brief at 24 (Mo., filed Apr. 28, 2017).
- In re Hinkebein, No. SC96089, Informant’s Brief at 24-25 (Mo., filed Apr. 28, 2017).
- In re Hinkebein, No. SC96089, Informant’s Brief at 25-26 (Mo., filed Apr. 28, 2017).
- In re Hinkebein, No. SC96089, Informant’s Brief at 26-27 (Mo., filed Apr. 28, 2017).
- In re Hinkebein, No. SC96089, Informant’s Brief at 27-28 (Mo., filed Apr. 28, 2017).
- In re Hinkebein, No. SC96089, Informant’s Brief at 27 (Mo., filed Apr. 28, 2017).
- Most of the work of the attorney in question, and in particular the work he was disciplined for, was post-conviction cases. For PCR in Missouri, to initiate the case at minimum the attorney has to: review the filing already made by the client; review the entire trial lawyer’s case file; review the entire trial record, pleadings, and transcript; review the entire appellate lawyer’s case file; review the entire appellate record, pleadings, and transcript; then either amend the client’s pleadings, or withdraw the client’s pleadings, or file a new post-conviction petition. By contrast, to initiate an appeal the attorney has only to review the entire trial record, pleadings, and transcript, and then write an appellate brief. In short, it takes much more work to handle a post-conviction petition than a direct appeal.
- In re Hinkebein, No. SC96089, Informant’s Brief at 27 (Mo., filed Apr. 28, 2017).
- In re Hinkebein, No. SC96089, Informant’s Brief at 27 (Mo., filed Apr. 28, 2017).