Public defenders ‘cannot ethically abandon a case’ to go on strike, says state ethics office

By: - March 18, 2022 3:03 pm

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The state office that oversees attorney ethics and discipline told Minnesota’s public defenders on Wednesday they “cannot ethically abandon a case just because they are on strike.”

The advisory from Minnesota’s Office of Lawyers Professional Responsibility raises the specter that public defenders could face disciplinary repercussions for walking off the job, which hundreds could do as soon as Tuesday.

Public defenders say the opinion from the state’s ethics office amounts to anti-union intimidation.

“I think it’s nothing more than scare tactics to try to prevent us from exercising our legal right to strike,” said Veronica Surges, a public defender based in Duluth.

A statewide strike by public defenders would be the first in state history. The action threatens to bring the criminal justice system to a screeching halt — the state’s roughly 470 assistant public defenders and 200 support staff represent about 80-90% of people charged with crimes in Minnesota.

The state’s public defenders, represented by the Teamsters Local 320, filed their intent to strike on March 10 after rejecting the final offer from the Board of Public Defense.

Public defenders say their caseloads have grown so large they’re unable to provide adequate representation, while their wages lag far behind prosecutors, sometimes by tens of thousands of dollars.

Surges says she’s currently assigned 250 cases, including about 50 felonies. She makes a little over $78,000 and estimates that with her 10 years of experience, she could earn more than $100,000 if she went to work for the St. Louis County Attorney’s Office.

The opinion issued by the Office of Lawyers Professional Responsibility states they do not take a position on the strike, but that public defenders have ethical obligations to their clients “regardless of their work status.”

Susan Humiston, director of the Office of Lawyers Professional Responsibility, declined to say if public defenders could be disciplined for going on strike.

“We don’t do hypotheticals at all,” Humiston said.

Pressed on if it’s possible for public defenders to violate ethics for failing to continue to represent clients during a strike, Humiston said it’s complicated.

“It’s the classic lawyer response of ‘It depends,’ because it depends on so many facts and circumstances,” Humiston said.

The union’s position is that each judicial district’s chief public defender is ultimately responsible for ensuring people who need a public defender are represented, as they are the ones assigned to cases.

Surges likened a strike to an unexpected leave of absence or sick time, when the chief public defender will reassign cases to another assistant public defender.

She said the high caseloads result in frequent delays.

“It’s a lot like being an emergency room nurse. You have to triage what comes in,” Surges said.

She said she is scheduled for seven trials on the same day next week, which means the one with the highest priority will take precedence and the other six will have to be delayed.

“(The strike) in many ways is no different of a situation,” Surges said.

But the state’s ethics office seems to disagree, writing, “Even assuming that the chief public defender is the rightful appointee, you, as the attorney of record, would still need to obtain approval to withdraw before ethically being able to stop work on a matter, or must ensure that the matter is covered by another in the (Public Defender’s) office.”

And yet, the office’s advisory states that “a strike, in and of itself, may not be a basis for withdrawal,” seemingly putting public defenders in a double bind.

Public defenders say the guidance to “withdraw” from a case reveals a lack of understanding of public defense by the Office of Lawyers Professional Responsibility.

“I have never seen a public defender file a notice of withdrawal,” said Sara Prentice-Mott, who’s worked as an assistant public defender in Minnesota for over five years.

She says private attorneys can withdraw representation but public defenders can’t refuse counsel.

Instead, cases are assigned to the judicial district’s chief public defender, who delegates the work to assistant public defenders.

Prentice-Mott said the only instances in which public defenders remove themselves from cases are when people waive their right to counsel.

Humiston said she disagreed that her office’s advice to public defenders to withdraw from cases runs contrary to common practice, but declined to comment further.

“Our advice speaks for itself,” Humiston said. She added that she encourages public defenders to contact her office if they have questions about specific circumstances.

“Those can be issues of interpretation,” Humiston said.

She advised public defenders to contact her office for “individual, confidential advice” on how to handle any specific ethical questions they have as it relates to the strike.

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Max Nesterak
Max Nesterak

Max Nesterak is the deputy editor of the Reformer and reports on labor and housing. Most recently he was an associate producer for Minnesota Public Radio after a stint at NPR. He also co-founded the Behavioral Scientist and was a Fulbright Scholar to Berlin, Germany.