The dilemma of a public defender whose caseload hinders the ability to provide competent representation of indigents may be resolved by seeking permission to refuse new cases or withdraw from pending matters.

In fact, that may be an ethical duty, according to a new American Bar Association ethics opinion, No. 06-441, that was issued last month by the Committee on Ethics and Professional Responsibility.

The public defender bar was established to satisfy a constitutional requirement that lawyers be appointed for defendants who can't afford private counsel, the ABA points out.

“Because these systems have been created to provide representation for a virtually unlimited number of indigent criminal defendants, the lawyers employed to provide representation generally are limited in their ability to control the number of clients they are assigned,” the opinion states.

Because the model Rules of Professional Conduct require lawyers to control workloads so each matter can be handled competently, the ABA believes that public defenders should decline new assignments when their caseloads become too large.

Defenders in such situations should work with supervisors for appropriate relief, or failing that, go over their heads to governing boards or even to the courts.

The ABA opinion identifies responsibilities of supervisors that include monitoring workloads of subordinates to assure diligence and competence, and to transfer cases or supply additional resources when necessary.

While the ABA has not adopted numerical standards for determining when caseloads are excessive, it offers for reference guidelines developed in 1973 by the National Advisory Commission on Criminal Justice Standards and Goals, which no longer exists.

Those 33-year-old benchmarks of annual maximums for a criminal defense lawyer are 150 felonies, 200 juvenile cases, 200 mental commitment cases, or 25 appeals.

Opinion No.06-441 may be viewed at or downloaded from www.abanet.org/cpr/ethicopinions.html