Legal Commentary

Encouraging news for New York City public defenders?the new state budget authorizes the Chief Administrative Judge to set caseload standards for public defenders. Throughout the country, overwhelming caseloads have undermined public defenders? ability competently and diligently to represent all of their clients, and the current fiscal crisis may have exacerbated this problem. The New York City caseload standards, which are set to be implemented within four years, should help to prevent the common occurrence of lawyers handling over 100 assigned cases at a time.

I wonder, however, about a possible downside to this otherwise positive development: greater external scrutiny of individual attorneys? case management. 

I was a public defender in New York City from 1994 to 2005, both with the Legal Aid Society in the Bronx and New York County Defender Services in Manhattan. Although I did not negotiate or manage the budget at either office, my conversations with the people who did led me to believe that our government funders did not audit how attorneys handled individual cases or even monitor individual attorney caseloads. Rather, my sense was that annual office-wide case assignment and disposition numbers were evaluated, and perhaps average attorney caseloads were considered. Whatever the exact calculus, I certainly felt no external pressures when I evaluated which cases could be handled more efficiently or required greater time and attention. My offices, however, were expected to address individual attorney caseload problems internally.

With this new external enforcement of caseload standards, could greater external scrutiny of individual attorney ?productivity? come with it? I?m hard pressed to think that some inquiry into individual attorney work practices wouldn?t be expected and even necessary for the judiciary to determine what caseloads reasonably can be managed by diligent and attentive lawyers. But public defenders understandably should be expected to resist external scrutiny of individual attorney case management, in part because of its potential to interfere with attorneys? independent professional judgment, see N.Y. Code of Prof. Resp. Canon 5 and EC 5-1, and in part because public defenders already battle against many clients? impression that we already answer to the government. The New York Times article didn?t include any comments from the union of legal aid attorneys in New York City, and the union statement at the Legal Aid Society's web site doesn't speak to this possibility.

Perhaps concern about external scrutiny will not materialize as the judiciary examines appropriate caseload standards. But, this caseload issue may be interesting to follow.