When My Lawyers Didn't Recognize Their Clients
So I wrote a memo (that's what we did before e-mail) to the Public Advocate and told her that we had too damn many cases and that we needed a new lawyer in the office.
How did I know that? I knew it because after checking the caseloads in my office (by hand, mind you), I came to the conclusion that my lawyers had opened over 400 cases each during the year. I developed the “400 cases standard.” What the 400 cases standard meant was that when my lawyers had opened 400 cases, they would no longer recognize their clients when they saw them, and when they no longer recognized their clients, that was bad, clients were being poorly represented, and the Sixth Amendment was being violated.
Sophisticated? Well, no. But it worked for a time. Occasionally, we got another lawyer in the Richmond Office.
In 1996, I was appointed Public Advocate by Governor Paul Patton to run the Department of Public Advocacy. And I began 12 years of advocating for lower caseloads. My record was spotty. Initially, I was able to hire more lawyers after Bob Spangenberg did a drive-by in 1997 and wrote a report that said Kentucky public defenders had too many cases. In 1999, a group we put together called the Blue Ribbon Group issued a report calling upon the Governor, among other things, to increase our funding so that we could lower our caseloads. However, at a time we were converting all of our 120 counties to one of 31 full-time offices, caseloads continued to go up. It seemed that no matter what we did, caseloads continued to spike.
In 2003, the Public Advocacy Commission looked at our Annual Caseload Report and saw that our lawyers had opened over 495 new cases the previous fiscal year. We started a campaign consisting of five public meetings that we called the Justice Jeopardized campaign. In 2004, the Governor put more money into our budget, again alleviating our caseload crisis. But this relief was temporary. By 2007, the caseloads were back up. In my last legislative session before retirement, I put together a budget that would reduce our caseloads to the national standards (the familiar NAC standards). I told the General Assembly that it was a matter of attorney ethics as well as a human crisis. I told them that we would have to start turning cases away (citing ABA Formal Opinion 06-441). In response, the General Assembly cut our budget, guaranteeing that cases would continue to exceed ethical levels. True to our word, we announced a plan to pull out of certain courts (family court) and turn away certain cases (low level misdemeanors, probation violations). We also filed a declaratory judgment action asserting the right to stop accepting new cases when our caseloads exceeded ethical levels. The lawsuit was pending when I retired in September 2008. Ed Monahan, who became Public Advocate in September of 2008, can tell the rest of the story.
I have been thinking a lot about my 400 case standard recently. NAPD is holding a Leadership and Workload Institute from August 18-20 in Lexington, Ky. At the time of this writing, we expect over 50 chiefs from around the country to attend. Indeed, excessive caseloads is one of the primary problems that caused NAPD to begin. We will be focusing on all of the pieces involved when public defenders have too many cases. What is the individual lawyer's responsibility? What should the chief do? Are there standards that apply? Are the NAC standards still useful? Is workload a better metric than open cases? What is a case?
Those are all important issues. But more than anything else, public defenders and public defense chiefs have to make certain that no lawyer stands up in court and asks, “Mr. Napier, are you in the courtroom?”