October 2013 Bar Bulletin
Division Autonomy Crucial in Defender Restructuring
By Robert C. Boruchowitz, John A. Strait and Phillip H. Ginsberg
Jon Ostlund's optimistic article in the September Bar Bulletin on King County's new public defense structure both underestimates the policy advocacy strength of the former nonprofit system and glosses over what he recognizes will be "the inevitable conflicts" that a large county public defender department faces, saying that large offices such as Los Angeles's have been able to manage the problem.
While it is true that "a place at the table" for a county employee defender is important in policy development, it also is true that since 1969 King County's nonprofit defenders have established a well-earned reputation for advocating for their clients and for policy change that improves the justice system. They often have initiated such changes by bringing together prosecutors, judges and law enforcement leaders.
LA Defender Is not a Model
Mr. Ostlund ignores the significant criticism of the LA Defender that has been documented by The Sixth Amendment Center. The Center noted that a 2009 report, by an experienced former project director for the National Study Commission on Defense Services, found that the lack of independence of the defense function in Los Angeles leads to many problems, including LACPD misdemeanor attorneys disposing of "1,200 cases per attorney per year, about three times the recommended national maximum."
Mr. Ostlund also fails to address the very substantial ethical and practical difficulties of merging four independent not-for-profit public defender entities that for decades have routinely represented adverse co-defendants - defendants who become witnesses adverse to other agency clients. This includes the ethical difficulties caused by imputed conflicts of interests and imputed confidentiality in taking decades of conflicted representation and combining them in the same legal entity under a single public defender agency.
These are extremely difficult ethical issues and the County's Memorandum of Understanding (MOU) with the four former nonprofit offices largely leaves unresolved how these issues will be resolved in the future. Having thousands of conflicts in four existing offices presents a far different situation than starting a brand new system with a county defender agency as Whatcom County did.
While the MOU is apparently based on an assumption that California conflicts rules (not the same as Washington's) will be followed here, with screening as an adequate solution to these complex conflict and confidentiality issues, there is no certainty that California standards will be adopted by the Washington Supreme Court. In other settings, the Washington Supreme Court has rejected California's approach to conflicts of interest and confidentiality under California's somewhat unique rules.
The difficulty of protecting the confidentiality of former clients' files and records from improper access in the new combined office by attorneys and/or adverse non-lawyer personnel working on adverse clients' cases is a substantial barrier to ethical and effective consolidation of the four former public defender agencies into a single agency or even two or three divisions of a county department. One troubling example among many is access to information in client files from one of the offices (now divisions) documenting negotiations on behalf of a former client to testify against a different agency's client in gang prosecutions. Such "snitch deals" present obvious risks to health and safety of the client or former client if that information is shared and or available in a single combined agency to others who might retaliate, but who need such information for impeachment.
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