Supreme Court rule would limit public defender caseloads, require more staff for city

YAKIMA, Wash. — Yakima may have to double, triple or quadruple the money it spends on lawyers for poor defendants under a new legal standard being considered by the state Supreme Court.

In an effort to make sure indigent clients are receiving adequate legal representation, the state Bar Association recently recommended limiting the number of cases public defenders can handle at any one time.

The idea of limiting caseloads illustrates the tricky balance between protecting constitutional rights and the cost of doing so. Yakima and other cities, already suffering from the rising cost of criminal justice, say caseload limits darken the horizon even further.

Yakima City Attorney Jeff Cutter says he's at a loss to see how the city could even come close to meeting the standard. Besides the financial impact, he wonders where the city would find experienced attorneys willing to work under the proposed conditions, which could limit their more lucrative private-practice clients.

"I'm not sure we could comply with these rules as they are being proposed," Cutter said in a recent interview. "We would certainly give it our best effort if they became the rule, but I'm not sure we could."

Proponents of the bar's proposal -- including Yakima County's chief public defender, who helped write the draft rule -- say the issue goes beyond money to the very basics of American justice. Defenders with heavy caseloads simply don't have enough time to do their jobs, they say, which means clients suffer.

"Everybody wants to focus on the number issue, but this issue is a lot bigger than that," said Dan Fessler, who oversees Yakima County's Office of Assigned Counsel.

Financial fallout

The exact fallout for Yakima and other cities from the new caseload standard for misdemeanors is hard to determine. City attorneys have estimated that Yakima might require anywhere between six and 14 more attorneys.

At the high end, that might tack nearly $1.5 million onto a budget already struggling under the weight of criminal justice and other rising costs. The city now spends more than $400,000 a year on public defense.

Cities that would be hit by the rule, along with some private attorneys who contract to represent public clients, say the rule is poorly written and shortchanges the effective work the lawyers do for thousands of clients every year.

Nearly 20 cities across the state, including Yakima, banded together earlier this month to hire an outside attorney to craft a letter against the proposal to the Supreme Court, said David Hall, the deputy city attorney for Everett, which led the effort.

A group of westside legislators also sent a similar letter to the court that questioned whether it was interfering in budget issues best addressed by state and local government, said Candice Bock, a lobbyist for the Association of Washington Cities.

"It's going to impact just about every city in some way," Bock said about the proposed rule.

The cities are waiting for the high court to publish the proposed misdemeanor caseload standards for public comment, possibly after this week. The bar association has suggested implementation in 2013.

A separate proposal involves limits on felony caseloads, but the misdemeanor changes have drawn the most attention. Misdemeanor cases include drunken driving, domestic violence, shoplifting and other crimes that are not serious enough for prosecution in Superior Court.

Are clients shortchanged?

The bar committee that developed the rules formed in 2004 partly in response to growing concerns that defendants were not getting enough attention from their busy attorneys.

The worst courts across the country have earned a reputation for "greeting and pleading" -- but prosecutors and some defenders say those examples don't represent the majority.

In Washington, the ACLU has filed lawsuits on both sides of the Cascades over allegations of shoddy defense. Two Grant County defenders were stripped of their law licenses for seeking money from indigent clients, and the county in 2005 settled a class-action lawsuit by agreeing not to rehire two other defenders and setting up regular outside reviews to make sure clients were getting an adequate defense.

Earlier this year, the ACLU filed a lawsuit alleging that the two defenders assigned to municipal court in Burlington and Mount Vernon were too busy to meet with clients, among other problems. Despite the pressure of both public and private clients, one of those defendants told the Seattle Times he had done good work for his clients.

Caseload numbers have been regularly discussed in Washington.

In 1989, the state bar suggested guidelines similar to what's being considered now. The Legislature later directed jurisdictions to use the guidelines to gauge whether defense was adequate. Any action by the Supreme Court would set a clear mandate for attorneys to follow by making compliance with the standards part of the professional conduct rules for lawyers.

The proposed standards are based largely on billable hours, the amount of time in a year that an attorney can dedicate to casework.

A Washington study group, led by The Washington Defender Association, studied attorney responsibilities in Washington and suggested 300 cases per lawyer would be an appropriate guideline. Up to 400 cases would be appropriate if it included a significant share of diversion cases, which are resolved through probation or means other than jail time, according to the study group.

Bob Boruchowitz, a Seattle University law professor and retired King County public defender who has been involved in the case-load issue for three decades, says that an attorney has 1,650 to 1,800 hours per year to dedicate to actual casework. (A 52-week, 40-hour work schedule would have 2,080 hours.)

How many cases are too many?

It's hard to measure exact caseloads in local courts, but the math suggests that each of Yakima's five public defense contractors take on nearly 800 cases a year.

"I believe when you get into that range it is unlikely that a lawyer can provide consistently good representation," Boruchowitz said.

Adding to the time demand are cases that require researching immigration implications or meeting with an interpreter, among other examples, Boruchowitz said.

The 800 estimate for Yakima comes from the fact that about 75 percent, and perhaps more, of defendants are represented by a public defender. The rest hire their own lawyer or resolve the case on their own, city attorneys say.

The numbers might shift further under formulas to count some lesser cases -- such as third-degree suspended driver's license violations and probation cases -- as partial cases. Third-degree license suspensions, which take less time, can make up a third or so of a court's criminal caseload. However, Fessler said adequate review is still necessary to consider the impact of a suspension.

Troy Lee, the Yakima attorney who heads the firm that provides most of Yakima's public defenders, says he believes the state bar's proposal goes too far.

Like city attorney Cutter, he questions where new attorneys would come, whether they would have enough experience and how the city would fund them.

And Lee said questions remain about how the caseload numbers would be interpreted.

For example, defense attorneys may not want to appear at arraignments -- as they do now to speed case processing -- in order to keep their official caseload count down.

Local public defenders have enough time to do their job, Lee said. He said that if the lower numbers were imposed, he might not have enough work to fill a week. He said he already doesn't take on many private cases.

"I could see a lot of scenarios that people haven't thought through. It's just 'let's pass this rule and see what happens.' That's the wrong approach," said Lee, who has held the city's public defense contract for about five years.

* Mark Morey can be reached at 509-577-7671 or mmorey@yakimaherald.com.