During a week in August, 65 defenders attended a 3-day Workload Leadership Institute co-sponsored by NAPD and the Kentucky Department of Public Advocacy. This Institute was dedicated to continuing the momentum of successful workload advocacy that is taking place on a number of fronts in a number of places. With successful litigation in Washington State (and the award of attorney fees for the litigation), better-than-ever data collection and analysis in Missouri  (blueprint studies are already being replicated in Texas and Florida), a lawsuit in New York redefining the Strickland standard for “effective assistance,” a comprehensive workload resource library on NAPD’s MyGideon site, and a just-convened community of advocates poised to amplify this progress, it’s easy to believe that it’s a new day for addressing the workload crisis.

Steve Hanlon, an NAPD Steering Committee member, St. Louis Law Professor, SCLAID leader and primary architect of the recent RubinBrown study of workload in Missouri said this, “We are witnessing the beginning of nothing less than a cultural revolution, as public defenders bring their organizations into the twenty-first century with data-based workload analyses that abandon their 40-year reliance on standards not revisited since 1973.”

This ‘cultural revolution’ will be hard on offices, and not just leaders – but on every advocate. Increased data collection, timekeeping, file review and honest, proactive measurement and articulation of the quality of representation will be necessary.

Mark Stephens, also a member of the NAPD Steering Committee and District Defender in the Knox County (TN) Community Law Offices reflected, “I've been the leader of a public defender office for 24 years.  During that time I have engaged in caseload litigation twice – in 1991 and 2007. Both times were the most difficult, time consuming, and painful experiences I've had as a public defender. I can say without hesitation that I never want to go through it again.  But if a similar situation arises, I won't hesitate to go once more into the breach.  I won't have a choice. Clients deserve lawyers who have the time  and resources to provide high quality representation.  Excessive workloads steal a lawyer's time, and break a lawyer's will and resolve. Workload litigation becomes a moral and ethical imperative.”

The public defender movement has done a thoroughly effective job of marrying the issue of excessive workloads to the work of a public defender; if you polled the public it is likely that the most frequently associated public defense image is of a lawyer buried under a mountain of files. But as this movement heads boldly towards the next step, I am remembering an indigent defendant named Peart, and hoping that we can strategically talk just as much about clients, service quality, and unjust outcomes as we move forward.

In the early 90’s, Leonard Peart was criminally charged in Orleans Parish and appointed a public defender. Somewhat predictably, the public defender had an excessive workload and sought relief from the courts so that he could ethically and effectively represent Mr. Peart. Mr. Peart’s constitutional right to counsel was considered by the Louisiana Supreme Court, which in 1993 issued an astonishing opinion for public defense in Louisiana.

The Court put the client explicitly into the center of its opinion about workload and resources. The Court stressed “reasonably effective assistance of counsel [to] mean that the lawyer not only possesses adequate skill and knowledge, but also that he has the time and resources to apply his skill and knowledge to the task of defending each of his individual clients.” The opinion recognized that “the provision of indigent defense services . . . [was] in many respects  so lacking that defendants who must depend on it are not likely to be receiving the reasonably effective assistance of counsel that the constitution guarantees.”  When assigned to too many cases without enough resources, public defenders are reduced to triaging, privileging resources and time for certain clients at the expense of others and creating a conflict of interest.

In the words of the Court: “We know from experience that no attorney can prepare for one felony trial per day, especially if he has little or no investigative, paralegal, or clerical assistance.  As the trial judge put it, ‘not even a lawyer with an S on his chest could effectively handle this docket.’  We agree.  Many indigent defendants . . . are provided with counsel who can perform only pro forma, especially at early stages of the proceedings.   They are often subsequently provided with counsel who are so overburdened as to be effectively unqualified.” The Court talked about a poor person’s right to due process, and how excessive workload violates that right. Public defenders have an ethical obligation to resolve the conflict caused by excessive workload and inadequate resources, and through Peart advocacy the public defense function could be tested against a constitutional standard.

Last week I read two separate articles (about public defense systems in two separate states) with quotes that suggested that excessive workloads are a myth, and the fault of defenders who simply aren’t very good at managing their time. This is not helpful, and a message that must be challenged. It will take preparatory work to do this, of course, but 21 years ago Leonard Peart and his public defender Rick Teissier showed that it can be done. It may get worse before it gets better, but excessive workload has been a stubborn plague on defense systems everywhere. The time to change that is now.

An overworked public defender is…. already overworked. The NAPD community – now nearly 7,500 members strong – can help overburdened public defenders and public defender offices conceive, prepare for, file, and successfully present pre-trial motions on behalf of their clients demonstrating that the client is receiving ineffective assistance of counsel. NAPD can help you by providing relevant training, the MyGideon Workload and Ethics resource pages, facilitating communication between other defense systems, assisting in media outreach and other public education ventures, anticipating the need for policy statements, and offering IT education and support.

NAPD is committed to client-centered advocacy, and it is the crux of the public defense crisis that workload makes it an incredible challenge to provide client-centered representation to indigent clients. NAPD dedicates itself to supporting the achievement of client-centered public defense services for every system. Many tools from earlier efforts exist, and new ones will need to be developed.  Stronger together, we look forward to tackling this crisis.