September 26 Letter from David Wallis, Area 13 of the State Public Defender System to Boone and Cooper County Courts

The Court has also held the Rules impose on all attorneys an ethical duty to provide effective assistance of counsel to all of their clients, and that attorneys violate those rules if they “accept [ ] a case that results in a caseload so high that it impairs [their] ability to provide competent representation, to act with reasonable diligence, and to keep the client reasonably informed.” State ex rel. Mo.

Pub. Def. Comm’n v. Waters, 370 S.W.3d 592, 607 (Mo. banc 2012)(citing Rules 4-1.1, 4-1.3 and 4-1.4).

The assistant public defenders of Area 13 have been instructed to notify myself or Ms. Aplin if they believe accepting any additional new clients would materially limit their responsibilities to an existing client so they might comply with the Rules of Professional Conduct. Additionally, both Ms. Aplin and myself have reviewed the caseload, case type, experience of each individual attorney and other factors such as travel of every assistant public defender in Area 13 to ensure there is no ethical violation as we have a specific obligation under the Rules to ensure those under our supervision do not violate the Rules.

The American Bar Association has previously weighed in on this issue. Formal Opinion 06-441, states in part “[i}f a lawyer believes that her workload is such that she is unable to meet the ethical obligations required of her in the representation of a client […] she must decline the representation. A lawyer’s primary ethical duty is owed to existing clients. (internal citation omitted) Therefore, a lawyer must decline to accept new cases[.]”

As of today’s date, Ms. Aplin and myself believe every attorney under our supervision is currently violating the Rules of Professional Conduct. Their current individual caseloads create a conflict of interest with existing clients because they are forced to chose effective representation of one client to the detriment of other clients. It is also our belief that assigning any new cases to any individual attorneys would create a conflict of interest because they would have no ability to adequately represent either their current or prospective clients.

The Boone County and Cooper County public defender will no longer be immediately entering into cases in which a defendant is qualified. When the Court appoints the public defender to determine eligibility, our office will do so. We will continue to inform the Court if an applicant does not qualify. If the prospective client qualifies, we will not assign an attorney until there is an attorney who can assume the representation without violating the Rules of Professional Conduct. We cannot file an entry with an individual attorneys bar number if we and the attorney know that doing so violates the Rules of Professional Conduct. To be clear, there are no hidden agendas or motivations with regard to this decision.

This is simply about ensuring all Area 13 public defenders are able to maintain their license to practice law without threat of discipline by OCDC.

As a practical matter, we will diligently strive to move cases at a rate that we believe will not require the appointment of private counsel or coerce the pro se representation of defendants. It is also our belief that we will be able to resolve individual cases more quickly than we currently are once we are able to ethically enter them. So, while a case may be pending for a larger amount of days due to no attorney being available to represent a client immediately, cases will move more quickly once we begin working on them.

We have started an internal wait list for defendants who qualify for representation but who do not yet have an attorney assigned to them. We will internally monitor attorney work load and the wait list and assign attorneys to cases based on custody status and severity of the charge(s).

We will be providing defendants on the wait list with a letter advising them they qualify and that we will notify them as soon as an attorney is available to take their case. Any current client who acquires additional cases will be represented by counsel of record and will not be placed on the wait list. Also, in the event two or more codefendant’s apply for the public defender, we will not be seeking conflict counsel until an attorney is able to represent the defendant this office ultimately keeps.

This is, and will be, a very dynamic and fluid process. The only ends we are aspiring to achieve is the effective, zealous and diligent representation of poor persons by counsel who are not under threat of Bar discipline by OCDC. And to that end we will go.

It is my sincere hope the Court will adhere to its own duty and fidelity to the Rules and will support and work with our attorneys during this process. If you have any concerns, issues or thoughts please feel free to email or call myself or Ms. Aplin.