1 THE NEW MEXICO PUBLIC DEFENDER COMMISSION

2 PUBLIC DEFENDER COMMISSION RULE 2018-__

3 -- INTERIM CASE REFUSAL PROTOCOL --
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5 WHEREAS:

6 1. Every person accused of committing a crime in New Mexico state

7 court is presumed innocent under due process principles enshrined in both the

8 United States and New Mexico Constitutions;

9 2. (i) Gideon v. Wainwright, 372 U.S. 335 (1963); (ii) the Fifth, Sixth,

10 and Fourteenth Amendments of the United States Constitution; (iii) Article II, § 14

11 and 18 of the New Mexico Constitution; and (iv) the New Mexico Public Defender

12 Act, NMSA 1978 §§ 31-15-1 et seq. (“PDA”), and Indigent Defense Act, NMSA

13 1978, §§ 31-16-1 et seq. (“IDA”), all guarantee to indigent individuals accused of

14 crimes that expose them to imprisonment the right to be represented by an attorney

15 to the same extent as those who can afford one;

16 3. The right to counsel includes the right to reasonably competent and

17 conflict-free counsel at each critical stage of the prosecution, and adequate

18 representation of the accused constitutes an essential component of the criminal

19 justice system without which a court lacks authority to proceed;

20 4. The functions of defense counsel and counsel’s duty to the accused

21 remain the same irrespective of whether counsel is privately retained, is employed

22 by the Department, represents the accused under contract with the Department, or
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23 otherwise is assigned. ABA Standards for Criminal Justice: Prosecution and

24 Defense Function (3d Ed.), Standard 4.1.2;

25 5. Lack of adequate legal representation at any stage of a criminal

26 prosecution creates a substantial risk of life altering consequences for an individual

27 charged with a crime, including wrongful conviction, loss of liberty, loss of

28 employment, loss of life savings, loss of a home and possessions, loss of

29 reputation, and impairment of family relationships;

30 6. The above consequences together with associated psychological

31 harms to the accused person and his or her family and close relationships create

32 secondary harms to society as a whole;

33 7. These consequences may occur irrespective of the ultimate outcome

34 of the prosecution, whether the accused receives reasonably competent

35 representation during trial, or whether the lack of adequate representation

36 ultimately requires reversal of any convictions;

37 8. When attorneys have too many clients, their ability to provide

38 competent and effective representation to any one of their clients is materially

39 limited by their responsibilities to each of their other clients;

40 9. This creates a concurrent conflict of interest in the representation of

41 each client within the meaning of Rule 16-107(A)(2), NMRA, of the New Mexico

42 Rules of Professional Conduct (“the Rules”) and infringes on the constitutional

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43 right of each client to conflict-free counsel;

44 AND, WHEREAS:

45 10. For many years, organizations throughout the United States that

46 provide legal representation to indigent defendants have been burdened with

47 excessive workloads due to a lack of adequate resources to cope with the number

48 of criminal cases filed;

49 11. The New Mexico Public Defender Department (“the Department”)

50 also has struggled over the years with this problem;

51 12. In 2007, the New Mexico Sentencing Commission (“the Sentencing

52 Commission”) issued a report on a workload study it conducted in conjunction

53 with the National Center for State Courts (“the 2007 Report”);

54 13. The 2007 Report contains projections regarding the number of

55 attorneys the Department would need in the following fiscal year to adequately

56 represent indigent criminal defendants;

57 14. The 2007 Report produced workload standards that are relatively

58 close to the 1973 National Advisory Commission on Criminal Justice Standards

59 and Goals (the “NAC standards”), which the ABA has not endorsed but has

60 recommended not be exceeded;

61 15. Since 2007, the Sentencing Commission has updated its projections

62 annually regarding the number of attorneys needed to adequately represent

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63 indigent criminal defendants, but the resources necessary to meet its conservative

64 staffing recommendations have not been available to the Department;

65 16. During the last decade, criminal case filings have continued to rise

66 throughout the State while the Department’s funding has remained relatively flat;

67 17. More recent workload studies conducted by the ABA in Missouri,

68 Louisiana, Colorado, and Rhode Island, using a proven methodology have all

69 shown that the NAC standards permit attorneys to carry substantially more cases

70 than the attorneys can adequately handle;

71 18. The National Center for State Courts recently agreed to employ a

72 methodology similar to the ABA methodology in a workload study it is conducting

73 in South Carolina instead of the methodology used in the 2007 Report;

74 19. The Department currently is working with the ABA to obtain funding

75 to conduct a formal workload study using the same methodology employed in the

76 four States listed above;

77 20. Based on the results from previous ABA studies, it is very likely that

78 the standards in the 2007 Report, just as the similar NAC standards, permit

79 attorneys to carry too many cases rather than too few;

80 21. Using the 2007 Report workload standards as a triggering mechanism

81 for further investigation in an Interim Case-Refusal Protocol therefore is highly

82 unlikely to result in Department attorneys or contract attorneys carrying too few

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 83 cases;

84 AND, WHEREAS:

85 22. At the present time the majority of Department attorneys and contract

86 attorneys throughout the State of New Mexico have annual workloads substantially

87 in excess of the 2007 Report’s recommendations;

88 23. In a number of jurisdictions within the State, excessive workloads

89 have reached crisis levels that have created or threaten to create wide-spread,

90 concurrent conflicts of interest within the meaning of Rule 16-107(A)(2), NMRA;

91 24. As a result of excessive workloads, Department attorneys and contract

92 attorneys frequently are unable to comply in all of their cases with Guideline 1 of

93 the ABA’s EIGHT GUIDELINES OF PUBLIC DEFENSE RELATED TO EXCESSIVE

94 WORKLOADS (2009), which reflect prevailing professional standards for attorneys

95 engaged in criminal defense practice, including an inability to:

96  Devote sufficient time to interviewing and counseling clients;

97  Conduct prompt interviews of detained clients and of those who are

98 released from custody;

99  Seek pretrial release of incarcerated clients;

100  Provide continuous representation by the same lawyer from initial

101 court appearance through trial, sentencing, or dismissal;

102  Conduct necessary investigations;

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103  Pursue formal and informal discovery from the prosecution;

104  Undertake sufficient legal research;

105  Make sufficient preparations for pretrial hearings and for

106 trials;

107 And,

108  Make sufficient preparations for sentencing;

109 25. Due to excessive workloads, Department attorneys and contract

110 attorneys also are sometimes altogether absent from clients’ first appearances,

111 where important decisions about pretrial release are made and guilty pleas

112 sometimes accepted, and where, by statute, the accused is entitled to an attorney;

113 26. Due to excessive workloads, Department attorneys and contract

114 attorneys frequently are unable to comply in all of their cases with the 2016

115 Department Performance Standards, which were promulgated by the Commission

116 in the exercise of its constitutional and statutory authority, including:

117  Standard 1.3 (“counsel has an obligation to work with the Department

118 to make sure that counsel has available sufficient time, resources,

119 knowledge and experience to offer representation consistent with

120 these standards in a particular matter.”);

121  Standards 2.1 through 2.3 (seeking pretrial release of incarcerated

122 clients);

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123  Standard 3.1 (duties at presentment and arraignment);

124  Standard 3.2 (duties at preliminary hearings);

125  Standard 3.4 (duties in grand jury representation);

126  Standard 4.1 (duty to conduct case review and preparation);

127  Standard 4.2 (duty to undertake formal and informal discovery);

128  Standards 5.1-5.3 (duties regarding pretrial motions practice);

129  Standards 6.1-6.4 (duties regarding plea negotiations);

130  Standards 7.1-7.7 (duties regarding trial representation);

131  Standards 8.1-8.7 (duties at sentencing);

132 And,

133  Standards 9.1-9.6 (post-sentencing duties, including motions for a

134 new trial, appeals, appeal bonds, and motions to reconsider sentence);

135 27. The widespread absence or impairment of these traditional markers of

136 representation creates a significant and unacceptable risk of an equally widespread,

137 prospective denial of the right to counsel and to conflict-free counsel to indigent

138 defendants during all critical stages of their cases;

139 28. When Department attorneys and contract attorneys carry excessive

140 caseloads or workloads there is also a significant and unacceptable risk of

141 substantial and immediate injury to individual clients in the form of prejudice at

142 plea or at trial, because those attorneys lack the capacity to provide each client

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143 reasonably effective assistance of counsel under prevailing professional norms at

144 all critical stages of their cases;

145 AND, WHEREAS:

146 29. Supervising attorneys within the Department, including the Chief

147 Public Defender and District Defenders, have an ethical duty under Rule 16-501 to:

148 (i) put in place measures which give reasonable assurance that all lawyers under

149 their supervision will conform to the Rules of Professional Conduct, and (ii) make

150 reasonable efforts to ensure that the lawyers they supervise do conform to the

151 Rules of Professional Conduct;

152 30. The Department also has an obligation to ensure that contract

153 attorneys provide reasonably competent and conflict-free representation to each of

154 their clients;

155 31. An Interim Case-Refusal Protocol provides an essential management

156 tool permitting the Chief, the Chief’s delegated agents, and other supervisory

157 attorneys to fulfill their ethical responsibilities and ensure that lawyers under their

158 supervision comply with the Rules of Professional Conduct;

159 32. An Interim Case-Refusal Protocol also helps to secure the right of

160 indigent criminal defendants to reasonably competent and conflict-free counsel

161 throughout each stage of their individual cases;

162 33. Due to the wide-spread and fluid nature of the excessive workload

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163 problems described herein, it frequently is not practicable for the Department to

164 respond adequately to a workload crisis in one jurisdiction by transferring

165 resources from another;

166 34. Mechanisms to resolve this State-wide problem by other means,

167 including by filing motions to withdraw in individual cases or working through

168 local Criminal Justice Coordinating Councils, have proven inadequate;

169 35. Due to the magnitude of the problem and its effects on indigent

170 criminal defendants, the New Mexico criminal justice system, and New Mexico

171 society, it is imperative that steps be taken as soon as practicable to alleviate these

172 workload-related deficits rather than waiting until after completion of the workload

173 study described above;

174 36. The 2007 Report’s conservative staffing recommendations provide an

175 acceptable interim trigger for further action on the part of the Department;

176 AND, WHEREAS:

177 37. In 2012, the voters of New Mexico adopted Article VI, Section 39(A)

178 of the New Mexico Constitution, which established the Department as an

179 independent agency and tasked it with the responsibility of providing legal

180 representation to indigent criminal defendants pursuant to other provisions of State

181 law, including the PDA, the IDA, and the Rules;

182 38. At the same time the voters adopted Article VI, Section 39(B) of the

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183 State Constitution, which created the New Mexico Public Defender Commission

184 (“the Commission”);

185 39. Article VI, Section 39(B) tasks the Commission with providing

186 independent oversight and guidance to the Department while not interfering with

187 “the discretion or the professional judgment or advocacy of a public defender

188 office, a public defender contractor or assigned counsel in the representation of

189 individual cases.” Id.;

190 40. The Commission’s constitutional oversight role includes developing

191 workload standards that secure the right to reasonably competent and conflict-free

192 representation to each person represented by the Department;

193 41. In 2013 the New Mexico Legislature amended the PDA to provide,

194 consistent with the Commission’s constitutional mandate, that the Commission

195 shall “develop fair and consistent standards for ... the provision of services

196 pursuant to the Public Defender Act, including standards relating to ... (3) ethically

197 responsible caseload and workload levels and workload monitoring protocols for

198 staff attorneys, contract attorneys and district defender offices.” Section 31-15-

199 2.4(B) (emphasis added);

200 42. This amendment shows a legislative intent to limit representation

201 under the PDA so that excessive workloads do not impair the ability of Department

202 attorneys and contract attorneys to comply with their constitutional obligations and

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203 ethical responsibilities under the Rules, including Rules 16-107 and -501, NMRA;

204 43. When Department attorneys and contract attorneys carry excessive

205 workloads, court appointment of additional clients violates the intent of the 2013

206 amendments to the PDA to provide for ethically responsible workload standards;

207 44. Further, because excessive workloads present a state-wide problem,

208 appointment of Department attorneys and contract attorneys in individual

209 jurisdictions impairs the independence of the Department as an agency of state

210 government and interferes with the Commission’ oversight role;

211 45. The Commission’s oversight role and statutory responsibility to

212 develop ethically responsible workload standards therefore modifies a court’s

213 statutory authority to appoint counsel under the PDA and IDA when workloads are

214 excessive;

215 46. Under separation of powers principles, these constitutional and

216 statutory provisions also outweigh any inherent authority of a court to appoint a

217 Department attorney or contract attorney when such appointment would

218 contravene the Commission’s duly enacted workload standards;

219 47. In 2017, the Chief Public Defender, pursuant to his responsibilities

220 under the PDA and the Rules to administer the Department, supervise its attorneys,

221 and oversee its contract attorneys requested the Commission to adopt an Interim

222 Case-Refusal Protocol;

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223 AND,

224 48. In the exercise of the Commission’s constitutional and statutory

225 authority and responsibility, described above, it has now conducted public

226 hearings; taken evidence; given due consideration to the adoption of the Interim

227 Case-Refusal Protocol; and otherwise has been adequately advised;

228 NOW WHEREFORE, on this the ____ day of _________, 2018, the

229 Commission, based on substantial evidence in the record before it, adopts the

230 following Interim Case-Refusal Protocol:

231 Section 1: Department Collection and Reporting of Information Regarding

232 Attorney Case Assignments and Time Keeping.

233 1.1 Each office of the Public Defender Department shall maintain a

234 continuing record of the case assignments per year for each attorney

235 employed by that office;

236 1.2 This record shall include for each case assignment the nature of the

237 charges, whether the case includes felony charges or charges only

238 misdemeanors, and whether the case involves a juvenile respondent;

239 1.3 The Department shall maintain similar records of cases it assigns to

240 contract attorneys;

241 1.4 The Chief Public Defender or the Chief’s designee shall review case

242 assignment reports for Department attorneys and contract attorneys on

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243 a quarterly basis, and these reports shall include the information

244 described in Sections 1.1 and 1.2;

245 1.5 The Department shall institute mandatory timekeeping by Department

246 attorneys and contract attorneys as soon as possible;

247 1.6 The Department shall maintain records of the time recorded by

248 Department attorneys and contract attorneys in working on their

249 assigned cases;

250 1.7 The time records described in Section 1.6 shall include the identity of

251 the client and the nature of the attorney’s work for each unit of time

252 recorded;

253 1.8 These time records shall be provided upon request to the Chief or the

254 Chief’s designee;

255 Section 2: Duty of the Chief to Investigate Excessive Workload Levels:

256 2.1 When reported case assignments for three or more months show the

257 attorneys of a particular office have or a contract attorney has case

258 assignments in excess of quarterly standards derived from the 2007

259 Report, the Chief shall conduct an investigation;

260 2.2 In conducting this investigation, the Chief shall review available

261 attorney time records for the period during which workloads for the

262 affected attorneys have exceeded the 2007 Report’s quarterly

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263 standards;

264 2.3 In conducting this investigation, the Chief shall also obtain

265 information from the affected attorneys and staff regarding the

266 attorneys’ ability to provide competent representation to existing

267 clients;

268 2.4 In deciding whether the affected attorneys can provide competent

269 representation to existing clients, the Chief shall consider whether the

270 affected attorneys consistently are able to comply with the

271 Department’s 2016 Performance Standards;

272 2.5 After the investigation described above, the Chief should determine

273 whether additional case assignments would create a significant risk

274 that the affected attorneys’ duty to provide competent representation

275 to existing clients would materially limit their representation of

276 additional clients;

277 2.6 If the Chief determines that a significant risk exists that the affected

278 attorneys’ duty to existing clients would materially limit their

279 representation of additional clients as described in Section 2.5, the

280 Chief then shall determine whether administrative measures are

281 reasonably available that would alleviate that risk short of refusing

282 additional case assignments;

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283 2.7 If the Chief determines such administrative measures are reasonably

284 available, the Chief shall institute these measures and evaluate their

285 effectiveness on a quarterly basis as long as affected attorney

286 workloads exceed the 2007 Report’s quarterly standards;

287 2.8 In the event of multiple investigations, the Chief shall decide the

288 priority in which they are conducted and what further steps are taken;

289 Section 3: Determination by the Chief to Refuse Additional Case Assignments

290 Based on Excessive Workloads:

291 3.1 If the Chief determines that reasonably available administrative

292 measures would fail or have failed to alleviate the risk described in

293 Section 2.5, the Chief shall state in writing that accepting additional

294 cases would be ethically irresponsible;

295 3.2 The Chief’s determination under Section 3.1 shall include a summary

296 of the facts and copies of all documents considered while preserving

297 from disclosure confidential client and personnel information except

298 as otherwise provided by law;

299 3.3 The Chief shall continue to monitor affected attorney workloads on a

300 monthly basis and shall report in writing when quarterly workloads

301 drop below the 2007 Report standards;

302 3.4 When quarterly workload levels have dropped below the 2007 Report

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303 standards, the Chief shall determine on a monthly basis whether the

304 affected attorneys are able to represent additional clients in an

305 ethically responsible manner as described in Section 3.1, and shall

306 maintain a record of this determination and the facts supporting it;

307 Section 4: Notice to Affected Courts of Case Refusal; Motions to Withdraw; and

308 Notices of Renewed Availability.

309 4.1 When the Chief determines that affected attorney workloads make it

310 ethically irresponsible for affected attorneys to accept additional case

311 assignments as described in Section 3.1, the Chief shall prepare a

312 Notice of Case Refusal;

313 4.2 The Notice of Case Refusal shall state that it would be ethically

314 irresponsible for affected attorneys to accept additional cases at the

315 present time and shall bear the Chief’s signature;

316 4.3 The Notice shall have attached to it a copy of the Chief’s written

317 determination and supporting documents as provided in Section 3;

318 4.4 The Chief shall deliver a copy of the Notice to the Chief District

319 Judge of the affected jurisdiction; all affected courts within that

320 jurisdiction; and the Administrative Office of the Courts;

321 4.5 Notwithstanding the above provisions, if the Chief determines it

322 would be ethically responsible, case assignments may continue to be

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323 accepted for cases involving homicides, violent felonies, sexual

324 offenses, and juvenile respondents;

325 4.6 The affected attorneys shall promptly move to withdraw from case

326 assignments that occurred after the Chief’s Determination, subject to

327 the exceptions listed in Section 4.5;

328 4.7 The affected attorneys shall continue to be unavailable to accept new

329 cases except as provided herein until such time as the Chief

330 determines pursuant to Sections 3.3 and 3.4 that workload levels have

331 fallen below 2007 Report standards and it would be ethically

332 responsible to accept additional cases;

333 4.8 The Chief shall provide a copy of his monthly determination of

334 continued unavailability pursuant to Sections 3.3 and 3.4 to all parties

335 listed in Section 4.4 until such time as he determines it would be

336 ethically responsible for the affected attorneys to accept additional

337 cases;

338 4.9 When the Chief determines as provided above that the affected

339 attorneys are able to accept additional cases, the Chief shall issue a

340 Notice of Renewed Availability, which shall bear the Chief’s

341 signature;

342 4.10 The Notice of Renewed Availability shall be delivered to the Chief

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343 District Judge of the affected jurisdiction; all affected courts within

344 that jurisdiction; and the Administrative Office of the Courts;

345 4.11 Upon communication of the Chief’s Notice of Renewed Availability,

346 attorneys previously disqualified from accepting additional cases shall

347 begin accepting new cases under normal case assignment procedures.

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