Letter to BCBA from the Director of the Missouri State Public Defenders’ Office

The following is published at the request of Michael Barrett, Director of the MSPD.
Like you, I have learned that the 13th Judicial Circuit has notified members of the local Bar that it will begin issuing appointments in criminal cases. I thought I’d share with you what I know on this issue.

In 2012, the Missouri Supreme Court issued an opinion in State ex rel. Missouri Public Defender Comm’n v. Waters, 370 S.W.3d 592 (2012). Lots of powerful stuff in there, but here are a few key takeaways for public defender attorneys: (1) Counsel violate Rules 4-1.1, 4-1.3, and 4-1.4 when she accepts a case that results in a caseload so high it impairs her ability to provide competent representation, to act with reasonable diligence, and to keep the client reasonably informed (Waters at 607); and (2) No exception exists to the ethics rules for lawyers who represent indigent persons (Id. at 608); and (3) For this reason, “public defenders are risking their own professional lives” when appointed to an excessive number of cases.” (Id.).

Not surprisingly, this case sent fear into the mind of every public defender. And so the system acted in 2012 and started to not accept every case that came in the door. The response was political backlash. Efforts to blow up the system were made and so MSPD attorneys stood down, the risk to their licenses notwithstanding.

And then recently, and as you are undoubtedly aware, the Office of Chief Disciplinary Counsel (OCDC) responded to a complaint filed against a senior MSPD attorney. This individual was drowning in cases (he even logged more than 50 hours a week from a hospital bed while battling a serious illness). Notwithstanding, a three attorney panel recommended probation, and he accepted. Despite this agreed upon resolution, the Supreme Court ordered the matter briefed and argued. It was during oral argument where the Supreme Court again made itself clear – that there were no carve-out exceptions in the Rules for public defenders, and then stated that defenders have a choice to make when he/she has too many cases: (1) quit; or (2) refuse to accept more cases.
Many have chosen the first option. We have a 25% turnover rate and given our starting salary of $39k, there is no line around the block of people looking to join our ranks. We received a number of resignations in the hours following oral argument in that disciplinary case.

I want to be extremely clear – it is the state’s obligation to fulfill a person’s right under the 6th amendment, and the court’s obligation to see that it is carried out. MSPD is an instrumentality to achieve that purpose. The problem is that in Missouri’s criminal justice system, policymakers ignore the word ‘system’. The system is not funded; rather the three functions (prosecution, judiciary, and defense) are funded individually in a vacuum based on who is the most politically desirable. And then everyone is shocked when it doesn’t operate effectively. For instance, this past year the state added a new circuit south of Springfield. Did it add public defenders to cover those dockets? No. In Union, two prosecutors were added and filings increased 60% over the past two years. Was the public defender given additional resources to keep up? Nope. Frustrated, half of the Union PD office has put in their notice or have already left. What are your suggestions? Any ideas? I have nothing to pull from my magic hat. Indeed, I have no magic hat.

As Director of MSPD, I do owe you transparency – not just because you may be asked to assist us in our charge – but because you are taxpayers who help fund the system. One of the first points that is always raised is whether we are being as efficient and effective as we can be? Here are some numbers. We have 370 attorneys handling more than 82,000 cases a year. We resolve those cases for an average cost of $355 per case, including overhead (litigation expenses, etc). The statewide average caseload is well north of 100 felony cases at any one time – some places its much higher. During oral arguments in the Supreme Court, OCDC kept stating that the public defender violated the ABA’s Model Opinion 06-441. The ABA has endorsed a maximum caseload of no more than 150 felonies a year per attorney. We are currently more than double that number.

The recent disciplinary case is not an isolated incident. I regretfully spend a considerable amount of time defending my attorneys against ethics complaints. One judge was put off when I had to move an attorney from his court to another office that desperately needed vacancies filled. In turn, he filed a bar complaint against this attorney. Another career PD recently received a cautionary letter from OCDC stating that 45 minutes was not enough time to spend with her clients – as if she didn’t know that. She has since left the system. Another Judge in Bolivar also just filed a bar complaint against the head of our Springfield office because he was put off when our attorneys can’t be in multiple courtrooms at once. The phrase “under attack” is too often tossed around to describe regrettable situations. That said, the lawyers in MSPD are boxed in – on the one hand, if we accept every case that comes in the door, OCDC and the Court have told us that our licenses are in jeopardy; however, if we do NOT accept every case, our jobs are in jeopardy.

All of that said, I still understand your frustration at having to potentially receive an appointment; however, I would just encourage you to direct that frustration to some other entity. Let me give you one.

It is my strong view that a professional organization, particularly one that we are compelled to join and pay dues to, must – if it does nothing else – ensure that professionals who seek to practice under the Rules that the profession sets, are able to do so without fear that they will lose their jobs. The Mo Bar is that entity. I will not spend any lines here sharing with you my efforts to get the Missouri Bar to do something on this front. But now that you are witnessing how your practice may be affected, you should seriously question whether the Missouri Bar has neglected the issue of access to counsel under the 6th Amendment.

From our perspective, MSPD attorneys send about $150,000 in dues to the Missouri Bar each year. For us, that equates to more than 350 criminal cases. Irritatingly, about $20,000 of that money is directed to legal aid in Missouri. While I appreciate the good work of Legal Aid, imagine our frustration as the 49th worst funded indigent defense system in the country – which seeks to fulfill an obligation required under the Constitution – that we are compelled to expend such significant funds to address non-constitutionally required rights. The Supreme Court and the Mo Bar are keen to require all of us to provide resources to so someone can have access to counsel in order to get their security deposit on their apartment back, but not so they can have access to counsel to ensure due process when their liberty is at stake. Seems backwards.

I have made several attempts to brief and put the Missouri Bar on notice regarding these issues, including multiple efforts recently. Recently, I became insistent that they take action. My argument was that this is a constitutional right that is not being met and lawyers, particularly young lawyers with substantial debt who are required to send the Mo Bar dues are being run out of their jobs fearing an attack on their license. Instead, after repeated efforts to get the Bar to move fastidiously to address the matter (including sending them copies of resignation letters from departing public defenders along with a statement that another couple hundred Missourians just lost access to their attorney), their response to me was that they did not ‘appreciate my tone’.
Perhaps you have a more agreeable tone than me. And now since you are subject to appointment, or have already been appointed, in the event you feel frustrated, I would encourage you to ask Missouri Bar President Morry Cole, these two questions:

1. Given that the 6th Amendment requires access to competent counsel for every poor person accused of a crime, and knowing that Missouri is second to last in funding for this purpose, that the state is currently being sued in federal court for failure to provide this right to counsel, and Missouri’s private lawyers are once again subject to appointment for the state’s failure to meet this need, how much money and time has the Missouri Bar spent in the course of the last four years addressing access to counsel and ensuring a competent indigent defense system in Missouri?

2. During that same time period, how much time and money has the Missouri Bar spent on entertainment, to include meals and liquor for events, late night hospitality suites, out of state trips for leadership, including hotel and travel expenses, meals for elected officials, as well as other initiatives that are not essential to the mission of the Missouri Bar as it is laid out in the Mo Bar’s By-Laws and Rule 7?

Currently, the Missouri Bar is making efforts to raise money to put on a travel CLE in Jupiter, FL to see the Cards play in Spring Training. Sounds fun. However, it is the viewpoint of at least this attorney that If they can raise money for this effort, why can’t they raise money to hire private attorneys in Boone County and avoid forced appointments. That may be another good question for Mr. Cole. His email is mcole@grgpc.com. I am anxious to hear his response.

Please also know that today at 1:30 I met with Judge Crane and Judge Bradley. As part of that discussion, I told them that public defenders want to provide representation on 100% of indigent criminal cases. Indeed, we are in the best position to provide counsel. However, the Rules prohibit us from doing it all at once given our current caseloads; as such, we need time. I also told him what was in my power to do and what was not as it relates to directing lawyers within the limits of the Rules. While I committed to working with the court in whatever way I could, I used this opportunity to invite the judiciary to finally get involved with advocating for the funding of a system of justice and not just their piece of the pie.

Please know that I take our obligation to our clients very seriously as much as I take my duty to you as a taxpayer very seriously. I am subject to your questions and inquiry. Toward that end, you may always contact me – nights and weekends included – at 573-355-6030. I may not get back to you immediately given the fact that I am currently dealing with this issue statewide, but I do promise to get back to you.