Do the competence and diligence rules limit how many cases a part-time prosecutor can take on?

Plain-English summary

A city attorney's office asked whether State v. Joe U. Smith, in which the Arizona Supreme Court found that a low-bid indigent-defense system raised an inference of inadequate assistance of counsel, applied to prosecutors. The city hired a part-time prosecutor for a fixed sum covering 25 hours a week regardless of caseload; in one recent year the position carried 365 misdemeanor complaints.

The opinion declined to decide whether Smith applied, treating that as a question of law outside the Committee's jurisdiction, but answered the ethical question. It concluded that prosecutors, like other lawyers, owe a duty of competent representation under ER 1.1 and diligent representation under ER 1.3, and that any lawyer who fails to provide competent representation because of an excessive caseload commits an ethical violation.

The opinion read ER 1.16 to require a lawyer with a maximum caseload to decline new cases or withdraw where the representation would violate the rules. A lawyer who accepts more cases than can be competently handled therefore violates ER 1.1, ER 1.3, and ER 1.16 together. The opinion noted that the new competence rule, ER 1.1, imposed a higher standard than the former Code, which Arizona had adopted in 1970 without the ABA's specific competence provision.

The opinion added that the city attorney's own conduct in offering the contract was governed by ER 8.4, which proscribes knowingly inducing another to violate the rules. If the city attorney determined the anticipated caseload could not be competently prosecuted, inducing another lawyer to accept it would be professional misconduct. Whether 365 misdemeanors could be competently handled in the contracted time was a factual question the Committee could not answer.

Currency note

This opinion was issued in 1986, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Do competence and diligence rules apply to prosecutors?

A: Yes. The opinion concluded that prosecutors, like all lawyers, owe duties of competent representation under ER 1.1 and diligent representation under ER 1.3.

Q: Can a lawyer ethically take on more cases than can be competently handled?

A: No. The opinion concluded that a lawyer who accepts more cases than can be competently prosecuted violates ER 1.1, ER 1.3, and ER 1.16, which requires declining or withdrawing where the representation would violate the rules.

Q: Is the city attorney who offers the contract exposed under the rules?

A: The opinion concluded that ER 8.4 governs the city attorney's conduct; if the city attorney determined the caseload could not be competently prosecuted, inducing another lawyer to accept it would be professional misconduct.

Background and rules framework

The opinion applied the Arizona Rules of Professional Conduct as they stood in 1986. ER 1.1 (Model Rule 1.1) requires competent representation, ER 1.3 (Model Rule 1.3) requires reasonable diligence and promptness, ER 1.16 (Model Rule 1.16) requires declining or withdrawing where representation would violate the rules, and ER 8.4 (Model Rule 8.4) defines professional misconduct, including knowingly inducing another to violate the rules. The opinion traced these duties to the former Code's Disciplinary Rules 6-101 and 7-101 and Canons 5 and 7, as discussed in State v. Joe U. Smith.

Citations and references

Rules of Professional Conduct:

• ER 1.1 / Model Rule 1.1 (competence)
• ER 1.3 / Model Rule 1.3 (diligence)
• ER 1.16 / Model Rule 1.16 (declining or terminating representation)
• ER 8.4 / Model Rule 8.4 (misconduct)

Cases:

• State v. Joe U. Smith, 140 Ariz. 355, 681 P.2d 1374 (1984), excessive caseload and inadequate assistance of counsel

See also

• ABA Formal Op. 06-441: Excessive Caseloads in Indigent Defense
• AZ Ethics Op. 96-03: Public Defender Conflicts and Imputation
• AZ Ethics Op. 04-04: Public Defender Conflicts and Screening

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=539

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

3/1986

Competent and diligent legal representation applicable to part-time city prosecutor regardless of caseload resulting under the contract.

FACTS

The City Attorney's Office of City A has requested an opinion regarding whether the Court's decision in State v. Joe U. Smith, 140 Ariz. 355, 681 P.2d 1374 (1984), applies to prosecutors as well as defense attorneys. The City hires a part-time prosecutor to handle matters that occur in the City Municipal Court, or are appealed to the Superior Court of the county or to the Supreme Court of Arizona. The city pays a fixed sum for 25 hours of prosecutorial services a week, regardless of the caseload which results under the contract. In 1983, the part-time position required handling of 365 misdemeanor complaints and a comparable or greater load was anticipated in future years.

In April, 1984, the Arizona Supreme Court, in State v. Joe U. Smith, supra, evaluated the Mohave County bid system for obtaining indigent defense counsel and held that the system raised a rebuttable inference of inadequate assistance of defense counsel and violated the due process rights of criminal defendants. The Court also reminded counsel that “accepting more cases than can be properly handled may result not only in reversals for failing to adequately represent clients, but in disciplinary action for violation of the Code of professional Responsibility”. Smith at 140 Ariz. 363, 681 P.2d 1382.

QUESTION

Rule 6(a) of the Statement of Jurisdictional Policies of this Committee provides:

"6. The Committee's jurisdiction being limited to the resolution of questions of professional ethics, it will not render opinions:

(a) On pure questions of law, or on mixed questions of law and fact;

The specific inquiry of the applicability of the Smith decision to the facts presented here is a question of law beyond the Committee’s jurisdiction.

However, the question of the applicability to prosecutors of the Ethical Rules that require competent representation can be answered.

ETHICAL RULES INVOLVED

ER 1.1 Competence

ER 1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

ER 1.16 Declining or Terminating Representation

(a) . . . lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

ER 8.4 Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another”

OPINION

Prosecutors, like other lawyers, have a duty to represent their client competently (Ethical Rule 1.1) and diligently (Ethical Rule 1.3). Any lawyer who fails to provide competent representation due to an excessive caseload, or any other reason, is committing an ethical violation.

The Supreme Court of Arizona, citing the Code of Professional Responsibility in force at the time of the Smith decision, stated that an extreme caseload and a consequent lack of preparation violated Disciplinary Rule 6-101 (A) (2) and (A) (3) which provided:

“(A) A lawyer shall not:

(2) Handle a legal matter without preparation adequate in the circumstances.

(3) Neglect a legal matter entrusted to him. *

In addition, inadequate attention to a particular case violated Disciplinary Rule 7-101 which provided:

“(A) A lawyer shall not intentionally:

(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules,

(3) Prejudice or damage his client during the course of the professional relationship,

Finally, the constraints imposed by a severe caseload might have caused a lawyer to violate Canon 5, “A lawyer should exercise independent professional judgment on behalf of a client," and associated disciplinary rules, where the lawyer's business or personal interests were allowed to affect his decision with respect to a particular case. The principles expressed in these Canons and Disciplinary Rules have been included and at times expanded upon in the newly adopted Rules of Professional Conduct.

The requirement that the lawyer provide competent representation to a client under Ethical Rule 1.1 is one of the major differences between the former Arizona Code of Professional Responsibility and the new Arizona Rules of Professional Conduct. The specific competency provision of the A.B.A. Model Code of Professional Responsibility, DR 6-101 (A) (1), was not adopted by the Arizona Supreme Court as part of the Arizona Code in 1970. Rule 1.1 requires that a lawyer shall provide competent representation and defines such representation as involving the thoroughness and preparation reasonably necessary. Thus, the new rule imposes a higher standard of competency than did the former Code. In addition, former Disciplinary Rule 6-101 (A) (2) and (A) (3)'s mandates for preparation adequate in the circumstances and lack of neglect have also been included in new Ethical Rule 1.1 on attorney competence.

Former Disciplinary Rule 6-101 (A) (3), as well as Canon 7’s directive to represent a client zealously and the associated Disciplinary Rule 7-101 (A) (1) and (A) (3), are reflected in new Ethical Rule 1.3 on Diligence. The comment to this Ethical Rule explains that reasonable diligence and promptness require that a lawyer should act with commitment and dedication to the interest of the client, and that a lawyer's workload should be controlled so that each matter can be handled adequately.

Ethical Rule 1.16 makes clear that a lawyer with a maximum caseload must decline new cases or terminate representation where the representation will result in violation of the Rules of Professional Conduct or other law. Consequently, where the demands of an extreme caseload make an attorney unable to devote sufficient attention to a particular case, acceptance of that case will cause a violation of Ethical Rules 1.1 on competent representation, 1.3 on attorney diligence and 1.16 for failing to decline or terminate representation where the representation will violate those rules.

Thus, a lawyer who accepts more cases than he can competently prosecute will be committing an ethical violation. The factual question that this Committee cannot answer is whether 365 misdemeanor cases can be competently prosecuted in the time allotted by the contract.

The ethical conduct of the City Attorney in offering the contract is covered by Ethical Rule 8.4 which proscribes knowingly assisting or inducing another to violate the Rules of Professional Conduct. If the City Attorney determines that the caseload anticipated under the contract cannot be competently prosecuted, assisting or inducing another lawyer to accept the contract would be professional misconduct.

Assuming that the lawyers involved feel that the caseload anticipated is not unmanageable on its face, and the contract is accepted, there remains a continuing ethical responsibility to accept no more cases than can competently be prosecuted at a given point in time.

© State Bar of Arizona 1986