Voices From St. Louis: Workloads Conference Recap - National Association for Public Defense

I was present for most of the Workload Conference, in between making sure that all the power points were loaded and that coffee was refreshed. It was an exciting conference. All of the presentations and power points will soon be up on MyGideon’s Workload page, found here: https://www.mygideon.org/How_To_Run_a_PD_Office/Workloads_and_Caseloads

In the meantime, here’s some of what I heard.

Friday, November 17th, 2017, 8:30 a.m. Mark Stephens welcomes us to the Workload Conference.

8:45: Steve Hanlon. “Everybody in this room is a hero.” “We now know that public defenders are systematically violating the rules of professional conduct with every file they touch…they have 3-5 times the cases they can competently handle.” Courts are “loyal foot soldiers in the Executive’s War on Crime.” “Doug Copeland, a Clayton, Mo. Lawyer and former President of the Missouri Bar who sought and helped pass a case refusal statute, said ‘We have trained a whole generation of lawyers how not to practice law.’” “If you aim for the King, don’t miss.” “We are trying to find out how much time is required to provide reasonably effective assistance for each case task.” “We are measuring the world of is vs. the world of should.” “You can’t play this game and control your caseloads unless you have a caseload infrastructure.” “The goal of these workload studies is to draw the line beyond which you cannot order us to do something unethical and unconstitutional.” “When a public defender has 3 times as much work as he or she can do, terrible things will happen.” “These people don’t need cages; they need social workers.” “Case refusal litigation is not the only way to attack the issue of excessive caseloads.” “I’m sick and tired of public defenders getting fired for not agreeing to take unethical caseload levels.” “Sun Tzu said ‘every battle is won or lost before it is ever fought. It is won by the choice of terrain.’ You are now involved in a war. Redefine the terrain. Seize the higher ground. Win this war with ethical rules and the Constitution.” No wallflower, that Steve Hanlon.

9:45: Norm Lefstein. “The question really is what is a lawyer’s obligation to control his workload? If I say nothing else, know this: you have a mandatory duty to take action when you have too many cases.” “The risk of disciplinary action is a possibility, as the Missouri disciplinary case makes clear.” “The only reason public defenders have not been disciplined repeatedly is that Bar Counsel has been empathetic with the plight of public defenders. They all know public defenders are vulnerable because of their caseloads.” “The public defender movement has not done a good job of promoting the private bar. Federal public defenders are not overwhelmed because there is a well-compensated private bar who are ready to take conflict cases. Part of the solution to the caseload problem is the private bar.” “I’d like to believe there are a few judges in the country who won’t insist on ordering public defenders continuing to handle excessive caseloads when advised of the problem.” “We have not secured the independence of the indigent defense function in this country. It’s a work in progress.” “Are there enough cases of public defenders and their organizations out there protesting excessive caseloads?” “I have come to the conclusion that the ABA Ethics Opinion 06-441 has had more significance than I realized. Since that opinion, I have appeared in 11 different cases in which excessive caseloads were being challenged.” “This proliferation of litigation tells me that something has changed in the public defense movement in this country. Public defense programs are being challenged.” “There is sadly a culture in too many programs where there is a willingness to proceed with the status quo.” “We are making important progress; there is reason to be optimistic about the future.”

12:15: Bill Leahy and Nora Christenson.    “The thing I’m proudest of in New York is that from 2012-2015, we worked with the counties and New York City, with 144 different public defense funding providers, we insisted that money was to be used to improve quality.” “We are in competition for every dollar with everyone else in state government. It is a zero-sum game.” “In the Hurrell settlement, we got counsel at arraignment, new eligibility standards that looked at actual expenses and not just income (250|PERCENT| presumption of eligibility), ensuring attorneys have support they need to do an effective job.”   “How do you go from processing cases to working cases?” “Attorneys in our assigned counsel program are now spending more time in their cases.” “The biggest challenge is how do you elevate expectations, elevate culture?” “Rand’s study was essential to our relief. It was a wakeup call regarding how far we were from getting relief.” “We converted the average number of cases for institutional defenders to the average number of hours available for assigned counsel.” “The Governor’s Office has estimated that full compliance with the standards will cost $250 million annually to cover the entire state.” “One of the takeaways is start doing from day one before you need to go to people, before there is a crisis, start building those coalitions.”

1:30: Doug Wilson: “It’s about legislative relationships, data, and relentless drive. We haven’t had to sue yet. It is the threat of suits that drives most of those people.”   “You want to add 20,000 cases to us? Great—but you have to pay for it, and we have the data.” “I love animals. But you want to know what’s not constitutionally mandated? The Dept. of Wildlife. You want to know what is constitutionally mandated? The Office of the Public Defender.” 2:00: Ed Monahan: “Another way to deal with workloads is to reduce the demand for public defenders.” “If we focus more on our public value, we can engender more help.” “We need to become political advocates, to be supporters of the criminal defense bar, and to represent the whole client.” “We began to produce criminal justice facts that nobody else was producing.” “It doesn’t make sense for the incarceration rate to continue to rise while the crime rates continue to decline.” “’The cure lies in your relationship with your ’enemy.’” 2:25: Lurene Kelley: “Communication has to be targeted and simple. When you’re talking to the public or to legislators, there are only a few main points they can remember." “Sometimes it’s OK not to be at the table.” “There’s only so much compassion out there for lawyers who say they are overworked. It needs to be framed as working for your client.”

2:45: Ben Baur: “The position is not the goal; the accomplishments are the goal.” “If you decide your task is to achieve an ethical workload, that’s what it is.” “I have self-reported myself to the bar 3 times.”   “The Commission is the wind at our back and a force for positive change.” “The criminal defense lawyers’ association can say things we cannot say.” “You cannot lead a public defender’s office if your greatest concern is keeping your job.” 3:05: Michael Barrett: “The takeaway is that you have to make it someone else’s problem.” “Excessive workloads are not your problem. It’s the state’s problem.” “Don’t talk to legislators during the session. Go to their jurisdiction in October. Think about it from their world.” “You have to learn politics. It’s part of your job. I was hired for the politics. I was hired to get resources.” “Every reporter in your state should have your cell phone number. The press is your friend.” “We have ignored the private bar. The private bar should be your ally.” “Your first political problem is in-house. Cultural problems. You’ve got the ‘we’ve always done it this way and don’t want to change.’ You’ve got people who are frustrated, and they will leave the system. Then there’s the new crop of lawyers who don’t know what’s going on yet. You’ve got to get solidarity in the ranks.” “The best way to get your folks to work with you is to put your neck out further than theirs.” “Stop trying to treat me like a lawyer with an asterisk.” “I know this: we aren’t turning back. It will probably get worse before it gets better.” “If they are going to use ethics as a sword, we should use them as a shield.” “It ain’t going to get any better unless you make it someone else’s problem.”

4:00: Derwyn Bunton: “If you’ve got enough money and resources, you’re probably not here.” “The biggest impediment to change is values.” “We have a theory of reform in New Orleans. You need a core strategy. You want to consider outreach, media advocacy, legislative advocacy, organizing, and litigation.” “Social media is better than word of mouth, and is frequented more often than papers.” “Controlling the conversation is imperative, if you can. You need to control your image.” “We are phenomenal story-tellers. That needs to be pressed into service when you try to control your image.” “You are who you want them to think they are.” “You have to tell your staff that this is a core strategy. Otherwise, as you describe excessive workloads, this can create anxiety among staff.” 4:35: Dawn Deaner: “The culture in Nashville was to help everybody no matter what our workloads were. Then I learned about Mark Stephens’ litigating workload issues just down the road in Knoxville.” “As you think about your workload problems, look elsewhere and learn what is happening elsewhere.” “I’ve learned a lot from watching law enforcement advocate for more funding.” “Our office now has a communications coordinator. Every large Metro agency has one, so why not the Public Defender’s Office?” “I talked about having only 1.8 hours per case. That was a meaningful message.” “We need to move from efficient to effective.” “We have to be able to message what we want. For me, the answer is not in a number. The answer lies in clients, and representing them effectively.” “Staff does not want to hear from their leader that they are doing a crappy job. So you need to prepare them for your workload strategy, and educate them. I took a year to prepare my staff for this strategy.” “We want the police to be accountable. Why don’t we agree to be accountable for our excessive workloads? Why don’t we admit that we are complicit in the situation in public defense?” “We started a ‘Defend Nashville Campaign’, engaging in a listening tour, in court watch, in a speaking tour, and participatory defense.”

Saturday morning, November 18, 2017.

8:30: Bob Boruchowitz and Norm Lefstein. (I must confess I did not get on the computer for awhile during their conversation.) Bob talked about the usefulness of the NAC Standards. He went through the successful history of using the NAC Standards in Washington. He talked as well about the development of the ACCD Statement on Workloads (Bob was the reporter for the development of that statement.) The NAC standards have been essential to reform in many places around the country. The ACCD Statement utilized the NAC standards and then recognized the development in criminal justice since those standards were set. Norm has been deeply involved in the development of the ABA Standards. He went over the history of the NAC Standards. The NAC Standards for public defenders came directly from a committee of the NLADA. They were never reliable when they were initially created. (My apologies to Bob and Norm. Watch their super presentation on MyGideon).

9:45: Isaac Merkle and Mark Stephens: Mark: “Don’t just collect the bare minimum because you are overwhelmed by the task.” Issac: “Training your staff is super important.” “Be thoughtful about what is worth putting in. We think a lot of information is worth tracking.” Mark: “When everyone is responsible for collecting data, no one is accountable.”   “What Issac has enabled me to do is to identify trends.” “Consider who is able to look at your data. You will need to be able to educate your staff about the data if it is shared.” Issac: “Always be very thoughtful when you share your numbers.” “Reliability of your data is super important. Unless you look at it, and audit it, and use it, it may not be as reliable as you want it to be. Keep eyes on the data and that allows you to tweak your system to improve reliability.” “Computers are totally stupid and literal. That means your business rules are exceptionally important.” Mark: “Without time tracking, you will always be using someone else’s numbers.” “You will have to track time. You will find your attorneys do not want to do it. It doesn’t take much time to do it.” “We have been tracking time for the last two years and there is not a problem with it.” Issac: “Every person in our office tracks time, not just the attorneys.” “It’s important for the leaders to track time as well.” “Knowing that everybody is going to hate time tracking, it’s important to minimize the pain.” “Documentation is primary in the Knox County Office.” Bill Ward: can a Freedom of Information request result in notes in a file being discovered?” Mark: “it would be part of the client’s file, including the notes field.” “When you do a case weighted study, you will live with it a long time.” Issac: “Figure out your measure first, and then apply it to the standard.” “We need to account for the complexities and not just the most serious offense.”

12:00 Carlos Martinez and Michael Barrett: Michael: “One of the first things you need to do is to tidy up your house, so that when they come after you, you can demonstrate how efficient you are.” “You need to teach your staff about their ethical responsibilities. Work that into your training.” Carlos: “Our biggest challenge in litigation was teaching our attorneys what our obligations were as lawyers.” Michael: “The goal is to avoid litigation. You can use your numbers to take to the other side in trying to get relief. For example, we took depositions in only 4|PERCENT| of our cases.” Carlos: “The year of our litigation, we had 47,000 felonies and only 15,000 depositions. I had to meet with our attorneys during the litigation to educate our staff.” “Preparing for litigation helped our office take a good look at ourselves. We had to answer whether we had done everything possible to avoid an excessive workload.” “The changes we had made ended up being part of the record. For example, a data element provided to the Court was that we had engaged the private bar.” Michael: “You have to be talking about this all the time. Interviews will bear fruit. You have to grant interviews. You have to have a media strategy. You have to meeting with editorial boards.” Carlos: “One challenge is that we do the external. We forget about the internal messaging. Internal messaging will make or break or litigation.”   “We have been successful with our attorneys by focusing on values. If you’re client centered, you have a sense of urgency.” “It’s a campaign of conversations with your staff.” Michael: “If you’re in a big system, you can make minimal impact on culture. Hiring the best heads of the local offices is the best thing I can do to ensure a good culture. You have to get some people outside of your system.” “The best thing you can do for an office is to get rid of your bad people.” Carlos: “If you have people in your office who are not zealously representing clients, and just processing cases, you have to bite the bullet and let that person go, even if they are popular in your office.” Michael: “Start laying the groundwork for litigation now, even prior to litigation. Develop relationships with private firms. Be thinking about what jurisdiction you want to file your litigation in.” Carlos: “How do you deal with the aftermath? What if you win your litigation?” “I started hearing rumblings in Tallahassee that they were going to privatize my office as a result of the litigation.” “I had to do an entire campaign beating back privatization of my office. Be ready for the aftermath. Find the allies in your community, the same allies you used to raise the issue in the first place.” Michael: “Whether you’re a red or blue state, you need to work with your association of counties. Jail costs are increasing. If you’re concerned about privatization, that’s a conversation worth having.”

1:00 p.m. Closing. Bill Leahy: “One thing Nora and I are taking back to NY is trying to grapple with all of our providers and a variety of data collection systems, we need accurate data from everybody.” Norm: “This conference did a good deal to encourage people to take timekeeping more seriously.” Steve Hanlon: “It took a lot of leadership to convince Mark’s staff to keep time. He wrote a terrific article that is up on MyGideon.” Mark: “We’re in Missouri for a reason. Michael Barrett and what his office has done is inspiring us all. We support you, Michael, and what you have done.” “Steve Hanlon is working around the country trying to get this issue across the end zone.” “The goal is not litigation. I have experienced real improvement in my office, and both times it was when I engaged in litigation. We try to avoid litigation. However, you need to prepare for litigation.” “I love being a PD and being around PDs. Visit the NAPD website and support this organization.”