Florida Supreme Court Holds that Excessive Caseload in 11th Circuit May Warrant Prospective Rejection of Third-Degree Felony Cases by Public Defender’s Office

Yesterday the Florida Supreme Court issued its much anticipated opinion in Public Defender, Eleventh Judicial Circuit of Florida, et al. v. State of Florida (SC09-1181 and SC10-1349). The 5-2 decision, authored by Justice Quince, considered issues presented from two appeals from the Third District Court of Appeal. The fundamental question at issue was whether an excessive caseload can constitute a sufficient conflict of interest under statutes and the Rules Regulating the Florida Bar to merit the prospective refusal to accept additional cases. Also at issue was whether the State Attorney has standing to oppose a motion for withdrawal by a public defender, whether a public defender could seek to prospectively refuse a class of cases based on conflict, as opposed seeking withdrawal on a case by case basis, and the applicability and constitutionality of s. 27.5303(1)(d), Fla. Stat., which provides that “[i]n no case shall the court approve a withdrawal by the public defender…based solely on the inadequacy of funding or excess workload.”

The issues were originally raised in the 11th Circuit Court, located in Miami-Dade County, by the Public Defender for the Eleventh Judicial Circuit (Public Defender). The Public Defender filed motions for withdrawal from representing indigent clients in 21 criminal cases, certifying a conflict of interest in each case, and claiming that due to caseload and underfunding, the office would not be able to ethically represent those clients. The motions were consolidated and the trial court, after finding that the Public Defender would not be able to provide competent representation in those cases, permitted the Public Defender to withdraw and decline future appointments in third-degree felony cases. The Third DCA ultimately reversed the trial court in State v. Public Defender, Eleventh Judicial Circuit, 12 So.3d 798 (Fla. 3d DCA 2009), and State v. Bowens, 39 So.3d 479 (Fla. 3d DCA 2010). The cases were then presented to the Florida Supreme Court for review.

At the Supreme Court the state argued that withdrawal based on conflict requires a case by case factual determination, and that a blanket prospective withdrawal based on ineffective assitance concerns is improper as there are adequate remedies for defendants who were denied effective assistance of counsel through post conviction proceedings. The Public Defender on the other hand (and various amici, including the American Bar Association) argued that prospective and blanket withdrawal was necessary to protect the 6th amendment rights of future defendants, and to ensure that public defenders comply with Rule 4-1.7(a)(2) of the Rules Regulating The Florida Bar, which prohibits representation if there is a substantial risk that representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.

The majority began by noting that a defendant’s right to effective assistance of counsel is guaranteed by both the federal and state constitutions. See Gideon v. Wainwright, 372 U.S. 335 (1963). The right is denied if a defendant’s attorney has a conflict of interest, which can arise with an excessive caseload when taking on another client would harm the ability of the attorney to provide effective assistance to each client. In cases where a public defender has a conflict of interest, the Legislature has provided for the appointment of the Office of Conflict and Civil Regional Counsel. In 2003, however, the Legislature added a provision to the statute dealing with conflict motions by public defenders providing that “[i]n no case shall the court approve a withdrawal by the public defender based solely upon inadequacy of funding or excess workload of the public defender.” Section 27.5303(1)(d), Fla. Stat.

The Court acknowledged that s. 27.5303(1)(d), Fla. Stat. applies to public defenders seeking to prospectively decline cases based on an excessive workload. However, the Court asserted that to read the statute as prohibiting a public defender from withdrawing based on conflict of interest caused by an excessive workload would render the statute unconstitutional as it would encroach on the courts’ exclusive authority to ensure the proper administration of justice in accordance with requirements of due process. While the statute prohibits withdrawal solely on the basis of an excessive workload, if the excessive workload creates a conflict, the statute cannot prevent the withdrawal of a public defender.

The Court additionally held that the issue of ineffective assistance of counsel can be addressed before trial; while there are remedies for ineffective assistance that available post-conviction, the right to an effective attorney is one that can be secured prospectively as well. The Court cited as support Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir. 1988): “[a]s the Eleventh Circuit explained, ‘The sixth amendment protects rights that do not affect the outcome of a trial. Thus, deficiencies that do not meet the “ineffectiveness” standard may nonetheless violate a defendant’s rights under the sixth amendment. In the post-trial context, such errors may be deemed harmless because they did not affect the outcome of the trial. Whether an accused has been prejudiced by the denial of a right is an issue that relates to relief—whether the defendant is entitled to have his or her conviction overturned—rather than to the question of whether such a right exists and can be protected prospectively.’” The Court pointed out the additional strain on that would be imposed on judicial resources from preventing pre-trial withdrawal, and requiring ineffective assistance of counsel concerns to be reserved for post-conviction proceedings. Also significant was the language of Rule 4-1.7(a)(2) of the Rules Regulating The Florida Bar; the requirement that an attorney not accept a client if there is a “substantial risk” of conflict requires that this restriction apply prior to accepting representation.

Finally, the Court concluded that in cases such as those of the Public Defender for the Eleventh Circuit, where the noncapital felony caseload was in the range of 400 per attorney, where third degree felony attorneys often had as much as 50 cases set for trial in a single week [yikes!], and where as a result attorneys are often unable to conduct investigations, depositions, or interview clients, the problem of conflict could be addressed in a system- and office-wide manner. In particularly stark language, the majority asserted that requiring a case by case approach in such dire circumstances would be “tantamount to applying a band aid to an open head wound.”

The Supreme Court concluded by remanding the case back to the trial court to determine if the conditions in the Public Defender’s office still warrant granting the motion to decline appointments of future third-degree felony cases.

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