2012 -- California, NATIONAL LEVEL, Texas
St. Marys Law Journal on Legal Malpractice & Ethics (St. Mary’s University, San Antonio, Texas)
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ABSTRACT & CITATION
This article considers the ethical dilemmas presented by different indigent defense systems, and touts San Mateo County, California’s private defender system as a model for the country. The author first describes the Supreme Court precedent that has shaped the right to counsel as know it today. He then describes the various ways that states have chosen to implement the mandate for indigent defense (relying especially on examples from Texas): the public defender model, assigned counsel via the “wheel”, individual contracting with an attorney or law firm, the private defender model, and the free-market voucher system. In all of these systems, Piatt argues, defenders are faced with a conflict of interest, because they are paid by a third party – the government – rather than directly by their clients; the parameters of the representation are thus regulated by a third party, to the detriment of the relatively powerless client. Sometimes defenders’ interests can also be at odds with their clients’, such as when they receive a flat fee per case in a contract model. Piatt argues that the first step in rectifying these ethical quandaries is to recommit the profession of law to the notion of service, so that attorneys are as motivated by assisting needy clients as they are by making money. Second, rather than campaigning for a national solution, indigent defense reform should focus on unique local needs. Finally, and most concretely, Piatt argues that supervision of indigent defense systems should be the responsibility of the local bar association, not the judiciary. According to Piatt, the San Mateo County Private Defender Program, where the bar association oversees the “wheel” of the private assigned counsel rotation, “is the model for an effective, ethical, and efficient indigent-defense system and should be duplicated wherever possible,” particularly where full-time public defender offices are not feasible.
Piatt, B. (2012), Reinventing the Wheel: Constructing Ethical Approaches to State Indigent Legal Defense Systems. St. Marys Law Journal on Legal Malpractice & Ethics. 2, 1, 372-415.Topics: Assigned Counsel, Ethical and Professional Responsibilities, Independence of Defense Providers, Pro Bono, Salaries, Supreme Court Decisions, Training
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Last revised: June 10, 2015 5:05 pm