Emory Law Journal
Most criminal defendants in the United States cannot afford to pay for a lawyer's services, and as a result their lawyers are government funded. Unfortunately, some state and local governments drastically under-fund indigent defense services. Criminal defense lawyers serving in these jurisdictions typically carry grossly excessive caseloads and are therefore severely restricted in how much time they can devote to individual clients. Commentators have targeted the under-funding of indigent defense systems as a problem of criminal justice, constitutional law, and civil rights. That is certainly true, but the under-funding of indigent defense also raises a serious and inadequately recognized problem of professional ethics: the systemic neglect of indigent defendants by their appointed lawyers.The legal profession's ethics rules establish standards for representation. However, many lawyers for indigent defendants engage in a practice that systematically violates these professional norms. They do not serve all their clients with "diligence" and "thoroughness, ' conduct "adequate preparation," or give matters the "required attention." Such criminal defense lawyers do not keep clients "reasonably informed," do not "comply with [their clients'] reasonable requests for information,"do not consult with clients about how the lawyer will pursue their objectives,' and do not explain matters to clients so that they can make "informed decisions."' This Article argues that the institutional response to this problem of systemic neglect of indigent clients has been wholly inadequate-either ignoring it or exacerbating it. This Article takes as its point of departure a recent Georgia Court of Appeals decision, Heath v. State. The decision overturned a criminal defendant's conviction because his court-appointed lawyer had been "neglectful" in failing to undertake an investigation, conduct legal research, or meet with his client over the course of more than a year before arranging for his client to plead guilty. As this Article discusses, even though this lawyer's inattentive representation clearly failed to meet the demands of the rules of professional conduct, his representation of Heath was not only typical of how he represented all his indigent clients but also typical of how indigent defendants are frequently represented throughout Georgia and the country.
Bruce A. Green,
Criminal Neglect: Indigent Defense from a Legal Ethics Perspective Ethics Symposium What Do Clients Want: Practice Contexts, 52 Emory L.J. 1169
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