Lead Opinion
This matter is before the Court for review of the decisions of the Third District Court of Appeal in State v. Public Defender, Eleventh Judicial Circuit,
Whether section 27.5303(l)(d), Florida Statutes (2007), which prohibits a trial court from granting a motion for withdrawal by a public defender based on*265 “conflicts arising from underfunding, excessive caseload or the prospective inability to adequately represent a client,” is unconstitutional as a violation of an indigent client’s right to effective assistance of counsel and access to the courts, and a violation of the separation of powers mandated by Article II, section 3 of the Florida Constitution as legislative interference with the judiciary’s inherent authority to provide counsel and the Supreme Court’s exclusive control over the ethical rules governing lawyer conflicts of interest?
Bowens,
I. FACTS AND PROCEDURAL HISTORY
The Public Defender for the Eleventh Judicial Circuit (the Public Defender) filed motions in twenty-one criminal cases seeking to be relieved of the obligations to represent indigent defendants in non-capital felony cases. The Public Defender certified a conflict of interest in each case, claiming that excessive caseloads caused by underfunding meant the office could not carry out its legal and ethical obligations to the defendants. The trial court consolidated all of the motions and denied the State Attorney’s Office (the State) standing to oppose the Public Defender’s motions. The trial court did allow the State to participate in the proceedings as amicus curiae. The trial court determined that the Public Defender’s caseload was excessive by any reasonable standard and that this excessive caseload only allowed the Public Defender to provide minimally competent representation. The trial court issued an order permitting the Public Defender to decline appointments in future third-degree felony cases, although the Public Defender was still required to represent those defendants through arraignment. See Public Defender,
The State appealed to the Third District Court of Appeal, which stayed the trial court’s order and certified the order on appeal as having a great effect on the proper administration of justice throughout the state and requiring immediate resolution by this Court. See art. V, § 3(b)(5), Fla. Const. This Court dismissed the case for lack of jurisdiction. See State v. Public Defender, Eleventh Judicial Circuit,
In Bowens,
II. ANALYSIS
In order to address the various issues raised in this case, we first review the history and law regarding indigent criminal defense. Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment to
In an effort to meet its responsibility to provide counsel to indigent defendants, as guaranteed under the Sixth Amendment and applied to the states in Gideon v. Wainwright, the Florida Legislature first established the office of the Public Defender in 1963. See ch. 63-409, § 1, Laws of Fla. (enacting section 27.50, Florida Statutes (1963), which created the office of the Public Defender). The Legislature subsequently approved a proposal to amend the Florida Constitution and elevate the Office of the Public Defender to the level of a constitutional officer, which was approved by the electorate and adopted in 1972. See art. V, § 18, Fla. Const.; see also Summary of Amendment Revising Florida Court Structure, Senate Joint Res. No. 52D (noting that “[t]he position of public defender gains constitutional status” in article V in the 1972 amendment).
The public defender in each circuit is primarily responsible for representing indigent defendants who have been charged or arrested for an enumerated list of criminal offenses and in a limited number of civil proceedings. See § 27.51(1), Fla. Stat. (2007). However, in those cases where the public defender has a conflict of interest, the Legislature provided for the appointment of the Office of Criminal Conflict and Civil Regional Counsel (RCC). See § 27.511(5), Fla. Stat. (2007).
The statutory provision governing withdrawal by the public defender based on conflicts of interest was originally contained in section 27.53(3). Until its amendment in 1999, section 27.53 required a trial court to grant a public defender’s motion to withdraw based on conflict without conducting any factual inquiry. In Guzman v. State,
Following our decision in Guzman, the Legislature amended section 27.53(3) to provide that under such circumstances the public defender shall file a motion to withdraw and the court
shall review and may inquire or conduct a hearing into the adequacy of the public defender’s representations regarding a conflict of interest without requiring the disclosure of any confidential communications. The court shall permit with*268 drawal unless the court determines that the asserted conflict is not prejudicial to the indigent client. If the court grants the motion to withdraw, it may appoint [a member of the Bar] ... to represent those accused.
Ch. 99-282, § 1, at 3084-85, Laws of Fla. (emphasis added). The staff analysis of the bill specifically references this Court’s opinion in Guzman, noting that “[although the statute uses permissive language, according to the Florida Supreme Court, when a public defender certifies that there is conflict of interest, the trial court must grant the motion to withdraw ... [and] may not reweigh the facts that gave rise to the public defender’s determination that a conflict exists.” Fla. H.R. Comm, on Crime & Pun., CS for HB 327 (1999) Staff Analysis 2 (finai June 14, 1999). The amended statute provided for a court to review the adequacy of the public defender’s representations as to conflict and to inquire further, if necessary. Thus, the amendment was intended to change this Court’s previous interpretation of how motions to withdraw should be handled. Under the amended statute, a court was no longer required to automatically grant a public defender’s motion to withdraw based upon an assertion of conflict. In fact, the court is specifically charged with reviewing the motion and making a determination of whether the asserted conflict is prejudicial to the client.
Effective July 2004, this provision was moved to section 27.5303 as part of a comprehensive bill dealing with the implementation of Revision 7 to Article Y of the Florida Constitution. See eh.2003-402, § 19, at 3668-70, Laws of Fla. The staff analysis dealing with “Conflict motions” states that the bill “expressly directs judges to look into the adequacy of the motion to withdraw due to an ethical conflict.” Fla. H.R. Comm, on Approp., HB 113A (2003), Staff Analysis 7 (May 14, 2003). The analysis also notes that “Currently, there appears to be some difference of opinion concerning the extent to which the court can inquire into the sufficiency of a motion filed by a public defender to withdraw from representation due to an ethical conflict of interest.” Id. Additionally, the new provision contained a subsection providing that “[i]n no case shall the court approve a withdrawal by the public defender based solely upon inadequacy of funding or excess workload of the public defender.” Ch.2003-402, § 19, at 3669, Laws of Fla. This prohibition was originally codified in section 27.5303(l)(c), Florida Statutes (2003), but was subsequently moved to subsection (l)(d) in the 2007 amendment to the statute. See ch.2007-62, § 10, at 446, Laws of Fla.
Section 27.5303(l)(d) is the primary provision at issue in this case. The parties have raised several issues relating to this subsection, including whether the statutory prohibition usurps the courts’ inherent authority to protect the constitutional rights of indigent defendants to effective counsel and whether the statute conflicts with a lawyer’s professional obligation to provide effective assistance and to inform the court of obstacles to that obligation. The parties also disagree on the standard for assessing whether the grounds asserted for withdrawal are sufficient, whether aggregate relief can be granted or must be handled on a case-by-case basis, what constitutes sufficient proof under the statute, and whether motions seeking to decline future appointments constitute withdrawals under the statute.
Applicability of Section 27.5303(l)(d)
The initial issue that we must address is whether section 27.5303(l)(d) is even applicable in this case. This subsection of the statute provides that “[i]n no case shall the court approve a withdrawal by the public
The Public Defender’s motion in the trial court was styled as “Motion to Appoint Other Counsel in Unappointed Noncapital Cases Due to Conflict of Interest.” In its memorandum of law in support of the motion, the Public Defender argued that because the plain language of section 27.5303(l)(d) governed motions to withdraw and his office was not moving to withdraw from any case to which it was currently assigned, the statute was not applicable to this situation. The trial court’s order granting in part and denying in part the Public Defender’s motion does not acknowledge section 27.5303 at all. The Third District found the withdraw/decline distinction to be unpersuasive for two reasons. First, permitting the Public Defender “to withdraw by merely couching its requests as motions to decline future appointments, would circumvent the plain language of section 27.5303(l)(d).” Public Defender,
The statutes governing the public defenders and their duties support the Third District’s conclusion that motions to decline future appointments are in essence motions to withdraw, which are governed by section 27.5303. Section 27.40(1) mandates that “the court shall appoint a public defender to represent indigent persons.” § 27.40(1), Fla. Stat. (2007) (emphasis added). Section 27.51(1) provides that the public defender “shall represent ... any person determined to be indigent” who is under arrest or charged with various criminal offenses that could result in imprisonment. § 27.51(1), Fla. Stat. (2007). To be relieved of these duties, even as to future cases, the public defender would have to seek court approval to be removed.
In In re Certification of Conflict in Motions to Withdraw Filed by Public Defend
However, as discussed in more detail below, section 27.5303 should not be interpreted to proscribe courts from considering or granting motions for “prospective withdrawal” when necessary to safeguard the constitutional rights of indigent defendants to have competent representation. “[W]hen understaffing creates a situation where indigent [defendants] are not afforded effective assistance of counsel, the public defender may be allowed to withdraw.” Day v. State,
Scope of Relief
Each of the parties in this case has taken a diametrically opposed position as to the scope of relief that may be addressed in a motion to withdraw under section 27.5303. The State argues that aggregate relief cannot be afforded and such motions are not intended to address systemic relief. Instead, the State argues that each incidence of conflict must be addressed on a case-by-case basis. The Third District specifically concluded that “[t]he office-wide solution to the problem ... lies with the legislature or the internal administration of [the Eleventh Circuit Public Defender], not with the courts.” Public Defender,
The Public Defender, and many of the amicus curiae who have filed briefs in these cases, contend that systemic or aggregate prospective relief is required by the Florida Rules of Professional Conduct and by the Sixth Amendment rights of indigent defendants. Additionally, they argue that the courts have inherent authority to issue such relief when necessary to fulfill their constitutional obligations.
The Public Defender also contends that a number of Rules of Professional Conduct are implicated in this case
The parties also contend that “[the] courts have authority to do things that are absolutely essential to the performance of their judicial functions.” Rose v. Palm Beach Cnty.,
We cited the doctrine of inherent judicial authority in considering the statutory scheme in sections 27.710 and 27.711 of the Florida Statutes (2007), which governs the statewide registry of attorneys who are qualified to represent defendants in capital collateral proceedings. See Olive v. Maas,
Only weeks after we issued our decision in Olive I, the Legislature added section 27.7002 to the Florida statutes, providing that compensation above the statutory schedule was not authorized and requiring any attorney who sought fees in excess of the cap to be permanently removed from the registry. Olive II,
This Court has also cited the doctrine in a long line of cases involving attorney compensation as it relates to safeguarding a defendant’s right to effective representation. See, e.g., Remeta v. State,
The Third District’s conclusion that the courts cannot fashion an “office-wide solution” to the public defender’s excessive caseload does not comport with Florida case law. We have approved aggregate or systemic relief in a number of cases where public defenders were experiencing excessive caseloads or where the offices were underfunded. In In re Public Defender’s Certification of Conflict & Motion to Withdraw Due to Excessive Caseload & Motion for Writ of Mandamus,
The Third District found the instant cases to be distinguishable from these other cases in which aggregate or “office-wide” relief has been afforded because of the method by which the public defender sought relief and the type of harm claimed. It is true that almost all of the aggregate relief cases have involved appellate cases where appeals and briefs have not been filed in a timely fashion. In some instances, the defendants had served their prison sentences or completed their probation before their appellate briefs were even filed by the public defender’s office. See Certification of Conflict,
However, we find the Third District’s characterization that the instant cases involved “excessive caseload and no more,” id., to be a gross over simplification of the evidence presented here and the situation existing at the time the Public Defender sought relief. While we cannot succinctly recount the lengthy records in these two cases,
While this evidence is different from the deficiencies presented in the appellate cases where aggregate relief has been afforded in the past, it is still a damning indictment of the poor quality of trial representation that is being afforded indigent defendants by the Public Defender in the Eleventh Circuit. Additionally, the public defender’s lack of adequate resources or excessive caseload is likely to affect each client’s case differently in the pretrial context as the attorney “juggles” the cases against each other in “triage.”
In extreme circumstances where a problem is system-wide, the courts should not address the problem on a piecemeal case-by-case basis. This approach wastes judicial resources on redundant inquiries. If this Court had not approved systemic aggregate relief in the appellate cases cited above, the courts would have been clogged with hundreds of individual motions to withdraw. This is tantamount to applying a band aid to an open head wound.
Thus, we reaffirm that aggregate/systemic motions to withdraw are appropriate in circumstances where there is an office-wide or wide-spread problem as to effective representation.
Standard Applicable under Section 27.5303
We next address the standard for reviewing motions to withdraw under section 27.5303. In Public Defender, the Third District held that the public defender was required to prove prejudice or conflict, separate from excessive caseload, and must prove the prejudice or conflict on an individual basis in order to be permitted to withdraw from representing an indigent client.
The trial court also looked to Rule 4-1.7(a)(2) of the Rules Regulating The Florida Bar, which prohibits representation if there is a substantial risk that representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client. The trial court concluded that the phrase “substantial risk” in the rule also contemplates future harm. Id. The trial court accordingly determined that in order to permit withdrawal based on excessive caseload, there “must be an individualized showing of substantial risk that representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.” Id. (emphasis added). The trial court concluded that assistant public defender Kol-sky had demonstrated the requisite prejudice to Bowens based on uncontroverted evidence that Kolsky had been able to do virtually nothing in preparation of Bowens’ defense, had not obtained a list of defense witnesses from Bowens, had not taken any depositions, had not visited the scene of the alleged crime, had not looked for defense witnesses or interviewed any, had not prepared a mitigation package, had not filed any motions, and had to request a continuance at the calendar call.
Additionally, expert witnesses presented credible testimony and evidence that the prejudice was a direct result of Kolsky’s excessive workload,
On appeal, the Third District concluded that there was no evidence of “actual or imminent prejudice to Bowens’ constitutional rights.” Bowens,
The Public Defender argues that even though the Third District did not cite any authority for the “actual or imminent prejudice” standard, this is the Strickland standard that applies to postconviction claims of ineffective assistance of counsel. See Strickland v. Washington,
The Strickland standard has been criticized as “inappropriate” for suits seeking prospective relief. See Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir.1988). As the Eleventh Circuit explained,
The sixth amendment protects rights that do not affect the outcome of a trial. Thus, deficiencies that do not meet the “ineffectiveness” standard may nonetheless violate a defendant’s rights under the sixth amendment. In the post-trial context, such errors may be deemed harmless because they did not affect the outcome of the trial. Whether an accused has been prejudiced by the denial of a right is an issue that relates to relief — 'whether the defendant is entitled to have his or her conviction overturned — rather than to the question of whether such a right exists and can be protected prospectively.
Luckey,
Luckey involved a civil rights action brought on behalf of indigent defendants seeking injunctive relief in order to remedy alleged deficiencies in the provision of indigent services in Georgia. The federal district court had dismissed the action on several grounds, including that the suit failed to state a claim for which relief could be granted. The district court ruled that the indigent defendants had to prove “an across-the-board future inevitability of ineffective assistance” under the standard set forth in Strickland. Luckey,
systemic delays in the appointment of counsel deny them their sixth amendment right to the representation of counsel at critical stages in the criminal process, hamper the ability of their counsel to defend them, and effectively deny them their eighth and fourteenth amendment right to bail, that their attorneys are denied investigative and expert resources necessary to defend them effectively, that their attorneys are pressured by courts to hurry their case to trial or to enter a guilty plea, and that they are denied equal protection of the laws.
Id. at 1018.
The Louisiana Supreme Court considered a similar issue in Peart,
One of the questions that the Louisiana Supreme Court considered was whether a trial court could address a claim of ineffective assistance of counsel before trial. The Louisiana Supreme Court concluded that “[i]f the trial court has sufficient information before trial, the judge can most efficiently inquire into any inadequacy and attempt to remedy it.” Id. at 787. The court explained that this approach furthers judicial economy, protects defendants’ constitutional rights, and preserves the integrity of the trial process. “It matters not that the ineffective assistance rendered may or may not affect the outcome of the trial to the defendant’s detriment.” Id. Moreover, as legal commentators have noted, the application of the Strickland standard to systemic deficiencies
provides no guarantee that indigent defendants will receive adequate assistance of counsel. By requiring the defendant to demonstrate that the ineffectiveness of counsel was prejudicial, the Strickland criteria tend to focus on errors of commission; however, especially with overworked defense attorneys, ineffective assistance more often results from an attorney’s errors of omission.
(Un)Luckey,
The New York Court of Appeals has characterized very similar circumstances to those presented in the instant cases as nonrepresentation rather than ineffective representation. Hurrell-Harring v. New York,
The instant case involves similar circumstances to Hurrell-Harring. Witnesses from the Public Defender’s office described “meet and greet pleas” as being routine procedure. The assistant public defender meets the defendant for the first time at arraignment during a few minutes in the courtroom or hallway and knows nothing about the case except for the arrest form provided by the state attorney, yet is expected to counsel the defendant about the State’s plea offer. In this regard, the public defenders serve “as mere conduits for plea offers.” The witnesses also described engaging in “triage” with their cases — giving priority to the cases of defendants in custody, leaving out-of-custody defendants effectively without representation for lengthy periods subsequent to arraignment. The witnesses also testified that the attorneys almost never visited the crime scenes, were unable to properly investigate or interview witnesses themselves, often had other attorneys conduct their depositions, and were often unprepared to proceed to trial when the case was called. Thus, the circumstances presented here involve some measure of non-representation and therefore a denial of the actual assistance of counsel guaranteed by Gideon and the Sixth Amendment.
The United States Supreme Court recently addressed two postconviction claims of ineffective assistance of counsel involving pleas. See Lafler v. Cooper, — U.S. -,
Based on the cases and analysis above, we conclude that the prejudice required for withdrawal under section 27.5303 when it is based on an excessive caseload is a showing of “a substantial risk that the representation of [one] or more clients will be materially limited by the lawyer’s responsibilities to another client.” R. Regulating Fla. Bar 4 — 1.7(a)(2). The records in the instant cases show competent, substantial evidence to support the trial courts’ findings and conclusions of law to that effect.
The trial court concluded that the caseload of felony public defenders in the Eleventh Judicial Circuit “far exceeds any recognized standard for the maximum number of felony cases a criminal defense attorney should handle annually.” In re: Reassignment & Consolidation of Public Defender’s Motions to Appoint Other Counsel in Unappointed, Noncapital Felony Cases, Case No. 08-1, at 4 (Fla. 11th Jud.Cir.Ct. Sept. 3, 2008). Additionally, third-degree felony cases, which comprise approximately sixty percent of all felony filings in the Eleventh Circuit, are “clogging the system and negatively impacting the [Public Defender’s] felony attorneys’ caseload.” Id. at 4-5. Supervising attorneys are handling third-degree felony cases to the detriment of their ability to handle capital cases and first and second-degree felony cases. Id. at 4. The reduced budget of the Public Defender and the excessive workload have contributed to a decrease in the number of assistant public defenders at the same time that the number of noncapital felony cases assigned to the office has increased by twenty-nine percent. Id. at 5. See also State v. Bowens, Case No. F09-019364, at 2-5 (Fla. 11th Cir.Ct. Oct. 25, 2009) (findings of fact regarding detrimental effect of attorney Kolsky’s caseload on ability to represent clients).
Therefore, we agree that the Public Defender has demonstrated cause for withdrawal pursuant to section 27.5303. However, we remand these cases to the trial court to determine if the same conditions still exist at this time.
Constitutionality of Section 27.5303(l)(d)
The Third District also certified a question regarding the constitutionality of section 27.5303(l)(d), which provides that “[i]n no case shall the court approve a withdrawal by the public defender ... based solely on the inadequacy of funding or excess workload.” See Bowens,
The constitutionality of a statute is a question of law subject to de novo review by this Court. Crist v. Fla. Ass’n of Criminal Def. Lawyers,
The language currently contained in section 27.5303(l)(d) was added when this statute was created in 2003 and became effective July 1, 2004. See ch.2003-402, § 19, at 3668-70, Laws of Fla. This provision states that “[i]n no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel.” § 27.5303(l)(d), Fla. Stat. (2007) (emphasis added.)
In addressing the constitutionality, we read the challenged subsection in pari materia with subsections (l)(a) and (l)(e). These subsections provide, in pertinent part:
(l)(a) If, at any time during the representation of two or more defendants, a public defender determines that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his or her staff without conflict of interest, or that none can be counseled by the public defender or his or her staff because of a conflict of interest, then the public defender shall file a motion to withdraw and move the court to appoint other counsel. The court shall review and may inquire or conduct a hearing into the adequacy of the public defender’s representations regarding a conflict of interest without requiring the disclosure of any confidential communications. The court shall deny the motion to withdraw if the court finds the grounds for withdrawal are insufficient or the asserted conflict is not prejudicial to the indigent client.
(e) In determining whether or not there is a conflict of interest, the public defender or regional counsel shall apply the standards contained in the Uniform Standards for Use in Conflict of Interest Cases found in appendix C to the Final Report of the Article V Indigent Services Advisory Board dated January 6, 2004.
The only conflicts addressed in the Uniform Standards for Use in Conflict of Interest Cases are conflicts involving code-fendants and certain kinds of witnesses or parties. There is no discussion of “conflicts arising from underfunding, excessive caseload, or the prospective inability to adequately represent a client.” Public Defender,
However, we rejected a similar argument regarding the same statutory language when it was previously contained in section 27.53(3). In Behr,
The State argues that the issue is moot because assistant public defender Kolsky was replaced as counsel on Bow-ens’ case after the Court accepted it for review. Thus, the State argues, the Court should not consider the constitutionality of the statute. However, the mootness doctrine does not destroy this Court’s jurisdiction in a case where the question before it is of great public importance and is likely to recur. See State v. Matthews,
The trial court concluded that the used of the word “solely” in section 27.5303(l)(d) is not a prohibition on considering excessive caseload as a factor in an attorney’s motion to withdraw, just that other considerations must also be present. State v. Bowens, Case No. F09-019364, at 7 (Fla. 11th Cir.Ct. Oct. 25, 2009) (order denying public defender’s motion to declare section 27.5303(l)(d) unconstitutional and granting public defender’s motion to withdraw). The trial court concluded that there “exists a cognizable difference between a withdrawal based solely on workload, and a withdrawal where an individualized showing is made that there is a substantial risk that a defendant’s constitutional rights may be prejudiced as a result of the workload.” Id. at 8. Because the trial court found that this distinction “allows judicial relief where prejudice to constitutional rights is adequately demonstrated,” it found the statute not to be constitutionally infirm. Id.
The cases dealing with the statutory caps on attorney’s fees guide our resolution of this issue. See Maas,
Moreover, this Court has repeatedly recognized that excessive caseload in the public defender’s office creates a problem regarding effective representation. See Certification of Conflict,
Thus, we find the statute to be facially constitutional and answer the certified question in the negative. However, the statute should not be applied to preclude a public defender from filing a motion to withdraw based on excessive caseload or underfunding that would result in ineffective representation of indigent defendants nor to preclude a trial court from granting a motion to withdraw under those circumstances.
Standing of State Attorney’s Office
Finally, we address whether the State Attorney’s Office has standing to oppose a public defender’s certification of conflict. The trial court denied standing, but allowed the State Attorney’s Office to participate in the proceedings as amicus curiae. Public Defender,
“Determining whether a party has standing is a pure question of law to be reviewed de novo.” Sanchez v. Century Everglades, LLC,
This issue was disposed of in our recent decision in Johnson v. State,
We explained that an articulable stake in the outcome of the proceedings (such as the counties’ financial obligations to pay the appointed counsel or the possibility that RCC would be appointed as counsel if a motion to withdraw was granted) was not the same as the State’s role as a party to the proceedings. Johnson,
III. CONCLUSION
Consistent with the analysis above, we quash the Third District’s decision in Public Defender and quash in part and affirm in part its decision in Bowens. We also remand for the trial court to determine if the circumstances still warrant granting the Public Defender’s motion to decline appointments in future third-degree felony cases under the standards approved in this decision.
It is so ordered.
Notes
. The style State v. Bowens was changed by this Court in order to reflect the same parties of interest as in Case SC09-1181. Both cases involve the Public Defender's Office for the Eleventh Judicial Circuit and motions to withdraw from representation premised on conflict from excessive caseload.
. Section 27.02(1), Florida Statutes (2007), provides, in pertinent part, that “[t]he state attorney shall appear in the circuit and county courts within his or her judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party.”
. The Eleventh Circuit Public Defender's Office is structured so that a set of attorneys represents clients through arraignment (the Early Representation Unit or ERU). After arraignment, representation shifts to another set of attorneys.
. Section 27.5303(l)(d), Florida Statutes (2007), provides: “In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel.”
. The Public Defender contends that the office's excessive caseload prevents the attorneys from complying with the following Rules Regulating The Florida Bar: Rule 4-1.1 (Competence); Rule 4-1.2(a) (Lawyer to Abide by Client’s Decision); Rule 4-1.3 (Diligence); Rule 4-1.4 (Communication); Rule 4-1.7(a)(2) (Conflict of Interest; Current Clients); and Rule 4-5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers).
. The combined record in these two cases comprises twenty-six volumes. The evidence in each case includes testimony, documents, statistics, and expert opinion.
. The American Council of Chief Defenders and the National Advisory Commission on Criminal Justice Standards and Goals recommend a caseload of 150 felonies per year. The Governor’s Commission on Criminal Justice Standards and Goals set the standard at 100 cases. Even the highest standard offered by the Florida Public Defender Association is 200 cases.
. This was not evidence of isolated incidents, but of systemic inability of the public defender attorneys to perform these functions on a regular basis. The United States Supreme Court once warned that the "denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution....” Avery v. Alabama,
. In considering a defendant’s claim that he was receiving ineffective assistance of counsel before trial from his indigent defender who had an excessive caseload, the Louisiana Supreme Court cited a similar situation in which the named defendant was receiving effective representation while the attorney's other clients were not. According to the Louisiana Supreme Court, this "reflects the fact that indigent defenders must select certain clients to whom they give more attention than they give to others.” Peart,
. At the time, Kolsky was the sole third-degree felony attorney covering his courtroom and had to absorb the caseload of his coworker who left the office for other employment.
. At the time, Kolsky had thirty-six years’ experience and was considered one of the best and most experienced lawyers in the office.
. The constitutionality of the statute was not addressed in Public Defender.
. At the time of the Court's decision in Behr, section 27.53(2), Florida Statutes (1977), provided that the court had the option of appointing a member of The Florida Bar to represent an insolvent defendant in a criminal proceeding.
Concurrence in Part
concurring in part and dissenting in part.
I agree with the majority that section 27.5303(l)(d), Florida Statutes (2007), is applicable and not unconstitutional. I also agree that the State Attorney’s Office has standing in these proceedings. However, unlike the majority, I do not believe that the Public Defender’s Office for the largest circuit in Florida should be permitted to withdraw from 60% of its cases by testifying that, due to its high caseload, attorneys may possibly end up violating the Florida Bar rules. See majority op. at 279. Instead, because there has been no proof of harm (or even proof of the likelihood of imminent harm) to individual defendants’ constitutional rights due to excessive caseload, I would approve the Third District’s decisions reversing withdrawal. See In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender,
The Third District accurately explained the following:
To be sure, whenever an attorney is burdened with an excessive caseload, there exists the possibility of inadequate representation. The possibility of these harms was discussed at the hearing below. However, there was no showing that individual attorneys were providing inadequate representation, nor do we believe this could have been proven in the aggregate, simply based on caseload averages and anecdotal testimony.
State v. Public Defender, Eleventh Judicial Circuit,
Rather than proving actual (or the likelihood of imminent) violations of individual defendants’ constitutional right to effective representation, the Public Defender’s Office presented general evidence regarding the average caseload of its attorneys, its lack of funding, and its difficulties in hiring new attorneys. For example, Mr. Brum-mer testified to a belief that the Office’s assistant public defenders must be rendering ineffective assistance of counsel given the average caseload numbers, numbers that he described as higher than several aspirational caseload goals which have not been approved for use in Florida courts. Mr. Brummer also testified that he had unsuccessfully sought increased funding from the Legislature in the years leading up to this litigation. The Office’s general counsel then opined that the Office lacks the resources necessary to render effective assistance of counsel under the sixth amendment, while a senior supervisor stated that he did not have enough time to fully investigate all of his cases and see all of his clients. Further, an assistant public defender, with no explanation of how it actually harms individual defendants’ constitutional rights, anecdotally stated that she had 62 felony cases and did not have enough time to discuss everything she wished with her clients or to go to the crime scenes herself. Moreover, in the Bowens case, the assistant public defender asserted that his high caseload prevented him from providing effective assistance to Bowens and that he would have to seek a continuance to properly prepare the case for trial, but the assistant public defender did not explain exactly how Bowens would be denied effective representation with a continuance.
None of this constitutes competent substantial evidence of actual (or imminent) violations of individual defendants’ constitutional rights due to excessive caseload or underfunding. Cf. In re Order on Prosecution of Criminal Appeals,
I agree with the Third District that this “is not to say that an individual attorney cannot move for withdrawal when a client is, or will be, prejudiced or harmed by the attorney’s ineffective representation.” Public Defender,
Additionally, the majority’s decision today permitting aggregate withdrawal without individualized proof of constitutional harm leaves open the potential continuation of the improper remedy implemented by the trial court, where the judiciary will essentially be managing the Public Defender’s Office. For example, the trial court’s order mandates that “PD-11 [is] to decline to accept appointments to ‘C’ felony cases until such time as this Court determines that PD-11 is able to resume its constitutional duties with respect to these cases.” (Emphasis added.) Moreover, the trial court orders the Public Defender’s Office “to continue its bond hearing duties for all cases on a limited basis only.” The trial court order also dictates that “[a]ll sides must cooperate on a daily basis in the 23 divisions in trying to amicably resolve cases while being realistic about the strength of each of their positions.” Even more invasively on an ongoing basis, the trial court’s order mandates that “[t]his matter will be set for a recurring 60 day review with weekly [assistant public defender caseload sheets] to be submitted to the Court to allow it to monitor the status of PD-ll’s caseload.” This ongoing judicial involvement in overseeing the internal affairs of the Public Defender’s Office is not only impractical but also creates constitutional separation of powers problems. See art. II, § 3, Fla. Const. (“No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly pro
To summarize, because there has been no proof of actual (or the likelihood of imminent) harm to individual defendants’ constitutional rights due to excessive caseload and underfunding, I would approve the Third District’s decisions reversing withdrawal. Accordingly, I respectfully concur in part and dissent in part.
CANADY, J., concurs.