The Individualistic Public Defender Problem

Background and Purpose: Modern public defender offices have shown a tendency to more closely mimic private attorney interactions with clients, primarily in adopting a vertical assignment system of one named attorney in charge of representing each client through the entire criminal proceeding and hiring specialists to assist with particular legal issues such as immigration or mental health. In making this shift, the public defense system seeks to meet their Sixth Amendment obligations to provide effective assistance of counsel and their ethical duties to provide loyal and competent representation despite limited resources. These changes, however, can actually exacerbate the existing resource problems. This article argues that this is because these changes do not go far enough in making the public defender more closely mirror the attorney/client arrangement in large law firms. Instead, they heighten the existing resource problems by increasing attorney burnout and quickening attorney departure from the work.

Methods: This conceptual piece engages in an organizational comparison between the work and operations of public defender offices and large law firms. The researcher explores the overlay of the two systems and the differing frontline impacts of their institutional designs by drawing on the researcher’s extensive practice experience as a public defender; a review of statutory schemes for public defender offices and institutional designs of large law firms; and litigation concerning inadequate public defender representation.

Results: This article articulates a new design for the public defender office that reflects the case assignment and practice group delineation in large, private law firms. By developing teams in the public defender of several attorneys, leadership could allow groups of attorneys to develop an expertise in a particular area of criminal law. This expertise would lessen the burden of having to maintain an adequate skill level, legal knowledge, and overall competence in various criminal laws and procedures. It would also allow the office to maintain some of the benefits of horizontal representation – having different attorneys assume responsibility for different parts of representing a client - while limiting the shortcomings of reduced attorney/client trust and the incomplete transfer of information that can arise from this type of representative scheme.

Conclusions and Implications: This exploration of the public defense system’s institutional design challenges the existing individualistic nature of the public defender office – where one attorney is assigned to one client and each attorney receives a broad range of cases. Insofar as public defender offices continue to struggle with resource deficiencies, more closely adhering to the large law firm case assignment model would foster a more manageable work environment for public defenders and better ensure the continued functioning of the office without sacrificing the experience of current clients.