The Florida Bar News - November 15, 2008

Could compelled appointments be coming to your circuit?
In an order compelling a private attorney to represent a criminal defendant, 12th Circuit Chief Judge Lee Haworth wrote that he hoped such orders will be rare in Florida.

“The situation in the 12th Circuit appears to be an anomaly, and not likely to be repeated in any large scale elsewhere,” he wrote, going on to call the conditions a “perfect storm.”

Those factors include a reduced number of private attorneys willing to handle conflict cases because of cutbacks in what the state pays for the work, as well as two large, multi-defendant RICO cases filed in the 12th Circuit that require a large number of private counsel.

Others involved in the case, and its resulting appeals, aren’t so sure the compelled appointments will be rare. They say the 12th Circuit case may be a harbinger of a potential tidal wave of unrepresented criminal defendants that could force other circuits to resort to involuntary appointments.

Maria Kayanan, who filed an amicus brief on behalf of the American Civil Liberties Union Florida chapter in the appeal of Haworth’s order, noted that the Legislature in 2007 created the five Offices of Criminal Conflict and Civil Regional Counsel (CCCRC). They were tasked, among other duties, with handling conflicts and overflow cases from public defenders.

“[R]ecent newspaper accounts suggest that, at least in the Fourth District’s office of regional council [covering the jurisdiction of the Fourth District Court of Appeal], there is a ‘revolving door’ of attorneys hired under the new regional counsel scheme, and that the attorneys are inexperienced and ill-equipped to handle the cases they’re assigned,” Kayanan wrote in her brief.

In addition, the 11th Circuit Public Defender’s office recently won a ruling allowing it to decline taking new third degree felony cases because of a lack of staff to provide meaningful representation.

“Although that order is currently stayed, if the Supreme Court grants review and affirms, thousands of cases declined by the public defender will go to the office of regional counsel [for the Third DCA jurisdiction],” Kayanan noted. “Beyond those dwindling number of [CCCRC] attorneys, courts will be forced to resort to private counsel, voluntary and then involuntary. This issue will recur with alarming frequency.”

Another amicus brief, filed by Sonya Rudenstine on behalf of the Florida Association of Criminal Defense Lawyers, the Bar’s Criminal Law Section, and the Florida Association for Women Lawyers, noted the problems in the Third and Fourth District CCCRC offices, including that the Third DCA CCCRC could wind up with a 1,000 to 1,500 extra cases a month.

But Rudenstine added that several counties have sued the five CCCRC offices, claiming that the state illegally requires them to supply offices and other support supplies and services. If the counties prevail in that suit, the regional counsels could find their ability to handle conflict criminal cases severely constricted, and even more cases would be dumped on the diminished number of private counsel willing to accept such work, she said.

Private criminal defense lawyers could then find themselves making the argument advanced by D. Todd Doss, who represents attorney Gregory Hagopian, the subject of Judge Haworth’s order.

“The burden of providing representation to indigent defendants belongs to society as a whole and cannot be carried by the criminal defense bar alone. Members of the bar may have a responsibility for the cases that slip through the cracks, but that professional obligation and ethical aspiration should not provide a means to shift the state’s obligation onto members of the criminal defense bar in an arbitrary and capricious fashion,” Doss wrote in his certiorari petition to the Second DCA.