Idaho State Bar issues ethics opinion on attorneys dropping cases amid public defense change
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Ruth Brown, Idaho Reports
BOISE (Idaho Reports) — Public defenders can’t walk away from cases without a judge’s permission, even if their new state contracts mean they will get paid less.
The Idaho State Bar issued an ethics opinion on Sept. 18 on attorneys withdrawing from pending criminal cases as the changeover date for a statewide public defense system nears.
Starting Tuesday, the State of Idaho will take over the costs and responsibility of public defense for indigent defendants in the state. Prior to Oct. 1, the responsibility for the cost of public defense was on the counties, which varied county to county. Some counties used in-house public defense, while others contracted with outside attorneys. The change in the state came after sweeping legislation formed a state office after years-long litigation over inadequate public defense in Idaho.
While about 77% of new State Public Defender employees would receive a salary increase, 7% of salaries would remain the same, about 15% of employees would see a decrease from their current county pay rate. Some attorneys have chosen not to sign on with the State Public Defender’s Office or chosen not to be contracted attorneys with SPD. That could potentially leave hundreds of defendants without an attorney, triggering the Idaho State Bar to issue its opinion.
In a story published by Idaho Reports last week, at least one public defender said he planned to withdraw from more than 100 pending cases. When the new State Public Defender Eric Fredericksen was asked about the issue, which is not isolated to one attorney, he said he’d wait for the State Bar’s opinion.
“We have filed in my office probably 200 motions to withdraw, and judges have granted most of them,” attorney Terry Ratliff told Idaho Reports on Friday. “They’re not granting ones where a judgment has been entered and (defendants) have 42 days to appeal if they choose.”
Ratliff, who previously contracted with Elmore County but isn’t signing on to the SPD, said he supports the Bar’s opinion and the judge’s choice, as he wants to protect his clients’ appellate rights.
The Bar issued the opinion after “multiple requests” to address the change to the state system.
The Bar opinion states that a lawyer must file a motion to withdraw if compensation becomes an issue. The judge may deny that lawyer’s motion. The opinion also includes details around how and when that lawyer may request to withdraw.
“The lawyer must assess whether there is a significant risk that their representation of clients will be materially limited due to their own personal financial interests, i.e., a reduction in pay rate to perform the same legal services. If the lawyer determines that there is a significant risk that their representation of one or more clients will be materially limited because of their own personal interests, then the lawyer has a concurrent conflict of interest (for withdrawing),” according to the opinion.
Additionally, if a judge believes withdrawing as a representative will jeopardize the defendant’s rights, the lawyer must stay on the case. In that case, the state would pay the attorney at its designated rate – even if it’s less than what the attorney received from their county contract.
“Courts have broad discretion in whether to grant a motion to withdraw,” according to the opinion. “If a court denies the lawyer’s motion to withdraw from the case, even if the lawyer’s request to withdraw is due to a clear conflict of interest, the lawyer must continue to represent the client.”