Oregon public defender asks court to withdraw overworked attorneys, dismiss cases

Attorneys filed a court motion Wednesday that aims to halt the long-running practice of overloading public defenders with more clients than they say they can ethically and legally handle. They say excessive caseloads violate the right to effective legal counsel the Constitution grants any person charged with a crime.

Shannon Wilson, director for the Public Defender of Marion County, has asked in the motion for Marion County Circuit Court to withdraw public defenders from certain cases, to stop appointing the nonprofit defense firm’s lawyers to new cases and to dismiss the remaining charges for anyone left without court-appointed counsel.

Every time one of Wilson’s attorneys gets a new case, “they are compelled to violate their ethical duties by expending their limited resources on one client at the expense of another, with neither client receiving the resources and time necessary for a proper constitutional defense,” the motion states. “The time has come for the legal community to work together to stop these ethical and constitutional violations.”

For public defenders to take this step underscores the impotency of Oregon’s efforts thus far to shore up its indigent defense system.

The motion, which would almost certainly disrupt the flow of cases through the courts, appears designed to get quickly before the Oregon Supreme Court. National public defense experts say a ruling in favor of the public defenders in Marion County could force the state’s entire court system to ensure poor defendants finally receive legal representation that abides by the Oregon Constitution.

As recently as 2019, Oregon was operating a system deemed unconstitutional because it pitted the interests of lawyers representing many of the state’s poor and most vulnerable against their clients by encouraging attorneys to take as many cases as possible.

Now, the problems are even more acute.

For the last 15 months, Oregon’s public defense system has failed to provide attorneys for hundreds of people charged with a crime, including people in custody. This week, more than 700 people were awaiting counsel, including approximately 80 in custody, according to state court data. Most of the people in custody without attorneys are in Multnomah, Klamath and Washington counties and have been charged with felonies. Statewide, 18 people are in custody on misdemeanor charges and do not have lawyers, according to the data.

Lawmakers have shouldered much of the blame for failing to prioritize public defense, which often serves marginalized communities that too often are overrepresented in the justice system and wield little political power in state capitals such as Salem.

Stephen Hanlon, a lawyer who has worked with states across the country to bolster public defense, argues his colleagues in the legal profession share the blame.

“We have become the principal facilitators of mass incarceration. You cannot do mass incarceration unless the entire legal profession rolls over and plays dead,” Hanlon said. “The Oregon Supreme Court needs to assume its proper role of ensuring the integrity of the Oregon criminal justice system: Make it a criminal justice system instead of a criminal processing system.”

Public Defender of Marion County’s argument

The crux of the argument from Public Defender of Marion County rests on ethical and legal standards established by the Oregon State Bar and U.S. Supreme Court. Those standards say defense attorneys must “conduct constitutionally required investigations” before advising their clients whether to go to trial or make a deal with prosecutors to plead guilty, according to the motion by Public Defender’s Wilson. Often, large caseloads mean court-appointed attorneys are neither able to establish the trust and confidence of clients nor are they able to develop exculpatory evidence.

“Similarly, public defenders have neither the time nor resources to humanize their clients or help them navigate a system that can be overwhelming to non-attorneys,” Wilson’s motion states.

States have been required to pay the cost of defense attorneys for anyone in need since the unanimous U.S. Supreme Court decision Gideon v. Wainwright, which the court decided 60 years ago this week. In 1984, the Supreme Court further defined that requirement as “reasonably effective assistance of counsel pursuant to prevailing professional norms of practice.”

In Oregon, lawyers are required to follow the state bar’s rules of professional conduct.

As the Marion County court filing notes, the conduct rules prohibit attorneys from representing a client if there is a conflict of interest. That conflict of interest exists, however, if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.”

In fact, Wilson’s motion contends that according to the state bar’s rules, an attorney must refuse or withdraw from representing a client if doing so would result in violating the bar’s conduct rules.

“Such a conflict arises when an attorney takes on more representations than they can competently handle,” the motion states.

The Public Defender of Marion County has just 63% of the attorneys necessary to meet current case loads, according to the motion, which amounts to a shortage of approximately 11 lawyers.

Last year, an American Bar Association report found Oregon’s public defense system had just 31% of the public defenders it needs — a shortage of nearly 1,300 lawyers. The association has found similar shortcomings in other states, including New Mexico, Louisiana, Colorado, Indiana, Missouri and Rhode Island.

After a 2019 report from the Sixth Amendment Center deemed Oregon’s public defense system effectively unconstitutional, the state adopted new limits on caseloads for the attorneys it contracts. But Jessica Kampfe, the new director of the Oregon Office of Public Defense Services, acknowledged attorneys can still be overwhelmed even under the case limits in the state’s current contracts.

“The caseload limits in the current public defense services contracts, while a meaningful step towards more reasonable public defense caseloads, do not always align perfectly with an individual attorney’s capacity to provide ethical representation to all their clients,” Kampfe said.

Oregon courts have failed to address crisis

Wilson’s filing is intended to force changes that Oregon’s judicial and legislative leaders have been reluctant to make.

On Friday, Multnomah County Circuit Court Judge Eric Dahlin dismissed a lawsuit brought against the state by people who initially were not provided court appointed lawyers despite being charged with crimes. A fellow Multnomah County judge had already dismissed a nearly identical case last fall.

“It’s ultimately a matter for the Legislature to find out a way to fund the public defense system and to encourage people to join as public defenders,” Dahlin said. “I want to be clear, it’s not the role of the Court to make policy decisions.”

Hanlon, the attorney who has worked nationally on the public defense crisis, said the courts must stop current practices before lawmakers take action. He was involved in the American Bar Association’s studies of lawyer shortages and has filed a declaration in support of Wilson’s motion.

“This is something that we have done as a profession,” Hanlon said. “By ‘we,’ I mean all of us: the judges, the trial judges, the state Supreme Court judges, the public defenders, the prosecutors.”

Oregon lawmakers are again considering bills to bolster public defense, as they have during many sessions during the past decade.

Many of the ideas lawmakers are considering are recycled from previously failed bills.

These include making a portion of trial-level public defenders state employees. Currently, the entire public defense system relies on contracted attorneys. Other proposals include moving public defense under the governor’s authority rather than the state judiciary, and overhauling the commission overseeing public defense.