State of Washington

Ethics Advisory Committee

Question

Is a judicial officer required to appoint a contract public defender in a matter pending before the court if the judicial officer does not believe that the contract public defender provides adequate representation?

The county utilizes contract attorneys to handle public defender appointments. There is a public defender administrator who oversees the contracts. There are two attorneys who hold the contract, and when the public defender administrator believes they are at the caseload limit the administrator advises the court to appoint attorneys off the contract, whether or not the court records confirm that assessment.

The judicial officer has advised the public defender administrator that one of the contract attorney’s work is substandard. Despite this advisement the administrator recommended to the county commissioners that the contract be continued. The attorney’s quality of representation has not improved. As a result, the judicial officer thought it was necessary to report the attorney to the Bar Association.

The attorney is filing affidavits of prejudice on every case to which the attorney is appointed. Because of the poor quality of representation, the judicial officer does not feel that the judicial officer should be required to appoint the attorney. The judicial officer has suggested to the public defender administrator that appointments be made to the county public defense office and that the administrator make the assignments of counsel. The administrator advises that there is not sufficient staff to appoint in this matter.

The judicial officer has a pro tem judge handling conflict cases once or twice a month but it is not financially feasible to add to that calendar. The judge believes that judge trades can be made to reduce the extra costs of the affidavits of prejudice calendars.

Answer

CJC 1.2 requires judicial officers to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary” and to “avoid impropriety and the appearance of impropriety.” CJC 2.2 provides that judicial officers “shall perform all duties of judicial office fairly and impartially.” The Code also recognizes that a judicial officer must make administrative appointments, including the appointment of counsel, and the judicial officer “shall exercise the power of appointment impartially and on the basis of merit.”

Defendants in criminal matters have a right to be represented by counsel and if they cannot afford counsel, they may seek counsel at public expense. Judicial officers have a duty to appoint counsel for eligible defendants and CJC 2.6 requires that a judicial officer ensure that every person who has an interest in the proceeding be heard according to the law.

Based on these provisions of the Code of Judicial Conduct, if the judicial officer has determined the contract public defender does not provide effective representation as required by RPC 1.1—Competence, the judicial officer is not required to appoint the contract public defender to represent a defendant in the judicial officer’s court.

Opinion 13-05

08/12/2013