Case Refusal: A Duty For a Public Defender and a Remedy for All of a Public Defender’s Clients

Stephen F. Hanlon
General Counsel, National Association for Public Defense
Adjunct Professor, Saint Louis University School of Law

This Article responds to an article authored by John P. Gross, in which Professor Gross argues that representation by a public defender with an excessive caseload may be the defendant’s “best option.” This Article rejects that proposition because such representation is unethical, specifically forbidden by state Rules of Professional Conduct, and unconstitutional.  Instead, this Article argues that, when public defenders can prove they have so many clients that they cannot provide competent and effective representation for all of them, they must move to withdraw from those cases they cannot competently and effectively represent, and that courts must grant such motions.  Additionally, through workload studies, public defenders are now equipped to provide reliable data and analytics to support their positions.  The appropriate remedy for courts when public defenders cannot represent all of their clients due to excessive caseloads is dismissal of the clients’ cases and their clients’ immediate release if in custody.  This is because when the state is unable to provide a lawyer for an indigent criminal defendant entitled to counsel, the court is not properly constituted and no longer has jurisdiction to proceed.  Thus, the Sixth Amendment is a jurisdictional bar to a valid conviction and sentence due to failure to provide conflict-free counsel to the accused.  When moving to withdraw from current cases and declining representation in future cases, public defenders must take steps to protect clients’ interests, which includes moving for  dismissal of charges and their clients’ prompt release from custody. [Read Entire Article Here]