What must a public defender and a supervising lawyer do when assigned caseloads grow too large for competent representation?
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This page answers the general question as of 1984. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-84-11 addressed full-time staff lawyers in the state public defender office, who have no direct control over their caseloads but must accept cases assigned by supervisors, where political and budget pressures can drive supervisors to increase caseloads. The committee answered three questions.
On the first, what a staff lawyer must do when the workload makes adequate preparation and competent representation impossible, the committee concluded that, except in extreme or urgent cases, the lawyer should decline new legal matters and continue representation in pending matters only to the extent the duty of competent, non-neglectful representation can be fulfilled (SCR 20.32; ABA Formal Opinion 347). The lawyer should also withdraw from a sufficient number of matters to permit proper handling of the rest; a lawyer who continues responsibility for substantially more matters than can be competently handled violates SCR 20.32(2) and (3). On the second, the committee concluded that supervisors may not ethically increase subordinates' workloads to the point where the lawyer cannot, even at personal sacrifice, competently and non-neglectfully handle each client's matter (SCR 20.32; ABA Informal Opinion 1359), and that while supervisors are not required to institute priorities or waiting lists, such measures may be necessary to avoid a violation. On the third, a staff lawyer's responsibilities to current clients upon termination or resignation, the committee referred to Formal Opinion E-80-18. The committee noted that "impossible" and "unmanageable" are subjective standards that vary with the circumstances.
Currency note
This opinion was issued in 1984, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. Competence, diligence, and supervisory responsibility are now analyzed under SCR 20:1.1, 20:1.3, and 20:5.1 / Model Rules 1.1, 1.3, and 5.1. 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: What should an overloaded public defender do?
A: The committee concluded the lawyer should, except in extreme or urgent cases, decline new matters and withdraw from enough pending matters to handle the remaining ones competently.
Q: Can a supervisor keep assigning cases past what a lawyer can handle?
A: No. The committee concluded supervisors may not ethically increase subordinates' workloads to a point where the lawyer cannot competently and non-neglectfully handle each client's matter.
Q: Are supervisors required to set up waiting lists or priorities?
A: The committee said supervisors are not required to institute priorities or waiting lists, but such steps may be necessary to avoid a violation of SCR 20.32.
Background and rules framework
The opinion interpreted the former Code's competence and neglect provisions (SCR 20.32), drawing on ABA Formal Opinion 347 and ABA Informal Opinion 1359. These subjects are now addressed by SCR 20:1.1, 20:1.3, and 20:5.1 / Model Rules 1.1, 1.3, and 5.1.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20.32 / Model Rules 1.1, 1.3 (competence; diligence) (former Code provision)
Other opinions cited:
- Wisconsin Formal Opinion E-80-18 (responsibilities on leaving the office)
- ABA Formal Opinion 347 (December 1, 1981); ABA Informal Opinion 1359 (June 4, 1979)
See also
- WI Ethics Op. E-91-3: Public Defender Office Workload
- WI Ethics Op. E-87-9: Associate Duties on Death of a Solo Practitioner
- WI Ethics Op. EF-21-02: Working Remotely
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-84-11.pdf
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