The Times Picayune recently reported on a battle that pits the Public Defender’s Office in New Orleans against the private criminal bar. At the root of the dispute is what the Public Defender’s call “zealous” representation of indigent defendants. Representatives of the New Orleans Criminal Defense Bar Association call it client poaching.
The state legislature funds the Orleans Parish public defender’s office using a formula that is determined by the caseload. And in order to justify continued funding — or to lobby for increased funding — the office has to submit statistics to the state detailing the number of cases they handle. The more cases the office handles, the more money they are justified in asking for. This has caused the public defender’s office to resort to some questionable measures, according to the Times Picayune article, that have the New Orleans Criminal Court Bar Association crying foul. Some private defense lawyers believe the pubic defender’s office is attempting to bolster the its statistics in order to argue for more money from the city and other agencies.
State law says the public defender’s office can represent anyone for an initial appearance. But beyond the initial appearance, the court must make a preliminary call on whether they qualify for continued representation. The Bar Association alleges the defender’s office is using their privileged access to prisoners to inflate their caseload numbers by taking on clients before it’s been determined by a judge that the person even qualifies for a free lawyer. This tactic, says J.C. Lawrence, president of the New Orleans Criminal Court Bar Association, hurts the clients by creating the false impression that the court is providing them with a lawyer — when, in fact, a judge may ultimately force them to hire one. This puts clients who may have been able to afford counsel had they not been misled — and the defense lawyers who might have been hired to handle the case — at a disadvantage.
Having spent 10 years working as both a public defender and a private criminal attorney, and 7 years exclusively as a private lawyer, you might guess I can see both sides of this one. Indigent clients need immediate and consistent representation — and the Public Defender’s Office has done a tremendous job providing them with this needed service. The problem is that defendants who can — and should — be hiring private lawyers aren’t doing so because they are being led to believe the public defender represents them. If a trial judge ultimately overrules the public defender and orders that same defendant to hire private counsel (often as little as one week later), the defendant is left scrambling to find counsel, and valuable time has been wasted in preparing his or her defense.
The public defender’s office is asking the city for a $3.5 million appropriation this year, and citing the high number of cases they have been “forced” to take on. Private attorneys are asking, and judges are beginning to give answers to reform the way in which public defenders are appointed. But, while the public defender’s office petitions the city for additional funding and the city works out a new formula for who qualifies for public defenders, this dispute between the defender’s office and the Bar Association continues.