For the Defense

For overworked public defenders, a recent state Supreme Court ruling promises relief.

Last year, public defenders won the right to decline cases when heavy workloads prevent them from adequately representing additional clients. Parker Thomson and his team at Hogan Lovells devoted nearly 4,000 pro bono hours representing Miami-Dade County public defenders, some of whom were handling 400 cases a year, in a lawsuit against the state.

“We didn’t even think about it, how much time it would take,” says Thomson, a longtime partner and now of counsel at his firm. “We thought about the absolute necessity of doing it.”

Thomson, who began practicing in Florida in 1961, labels the Miami-Dade Public Defender’s Office one of the best in the country. “So to find that they were overloaded and couldn’t possibly handle their caseload,” he says, “tells an appalling story of what conditions are throughout the United States.

“If a public defender can’t handle the caseloads, then the indigent people charged with crimes are not getting the constitutional protection [to which] Gideon 50 years ago said they were entitled.” All the public defenders could do was triage. “When someone presents an issue like that to you,” says Thomson, “you say, ‘That’s important and yes, I will do it.’”

Thomson praises his team, including Hogan Lovells colleagues Julie E. Nevins, Laura Besvinick, Alvin Lindsay and Matthew Bray, who showed the court that a heavy caseload was preventing attorneys at the Miami-Dade Public Defender’s Office from achieving their mission.

Many public defenders were handling 50 third-degree felony cases per week. And the Florida Legislature funded only 32 of the 82 attorneys the office had to bring in to help with the overload.

The State Attorney’s Office had argued that decisions on excessive workload should be decided case by case, post-conviction. Thomson, pointing to two recent U.S. Supreme Court cases, says that’s too late.

The Supreme Court rulings came at just the right time. In 2012, the high court observed in Missouri v. Frye and Lafler v. Cooper that the criminal justice system has come to rely much more on plea bargains than on trials, and said if attorneys are unable to inform their clients in a timely way about plea offers, defendants may later claim they had ineffective counsel.

“When the public defender says they can’t handle the caseload, you’ve got to be worried about whether the public defender is adequately representing the indigent criminal defendant in the plea bargain,” says Thomson. “So the Florida Supreme Court made clear, following the United States Supreme Court … we’re going to apply a standard that applies across the board, whether the case is plea-bargained out or whether it goes to trial.”

That means cases that qualify as overload can be shifted to another state agency, the Office of Criminal Conflict and Civil Regional Counsel, which takes cases when the Public Defender’s Office has a conflict of interest. In last year’s ruling, the state Supreme Court qualified excessive workload as a conflict of interest, saying overwhelmed public defenders cannot adequately represent new clients.

Thomson and Nevins believe the ruling will not only affect all Florida circuits but influence other states in similar situations.

The Supreme Court sent the case back to the trial court to determine whether the clogged conditions still exist in Miami-Dade, which the court decided is not currently the case. But Thomson’s team is working on procedures for putting the excessive-workload ruling into practice next time the Public Defender’s Office finds itself overwhelmed.

For his work, the Florida Public Defender Association honored Thomson last August with the L. Clayton Nance Award, which honors outstanding contributions in improving the state’s criminal justice system.

So how did Thomson balance this pro bono case with his regular practice, which includes commercial litigation, environmental law and constitutional issues? “The answer is nights and weekends,” he says.

“I’ve handled the tobacco cases brought by the state of Florida. … I’ve handled drilling rights of oil companies in the Gulf of Mexico. I’ve handled massive press cases. But [in] the last five years, this is about as important as it gets.”