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Big Law, Public Defender-Style: Aggregating Resources to Ensure Uniform Quality of Representation


Eve Hanan


June 11, 2018

Stories abound of public defenders who, overwhelmed with high caseloads, allow defendants to languish in pre-trial detention and guilty pleas to be entered without examining the merits of the case. Most defendants cannot afford to hire an attorney, and, thus, have no choice other than to accept the public counsel appointed by the court. In this Essay, I consider whether Professor Benjamin Edwards’ central argument in The Professional Prospectus: A Call for Effective Professional Disclosure—that attorneys should provide potential clients with a prospectus disclosing their performance historyapplies to criminal defense. I reject the proposition that most people charged with crimes would have better representation if they could choose their attorneys and, to that end, had adequate information about their attorney’s past performance. I conclude, instead, that the problem of inadequate criminal defense representation can be better remedied by improving the infrastructure for public defense.

Others have argued that large, state-wide public defender offices provide better representation than smaller public defender offices or systems in which private attorneys accept public appointments from the court because large offices can aggregate resources. This essay adds to the discussion of the benefits of large public defender offices in two ways. First, it argues that statewide public defender offices can be evaluated for effectiveness, allowing potential clients and the general public to assess the quality of representation they provide. Adequate information about the effectiveness of the large public defender offices can overcome a common mistake that potential clients make regarding criminal defense—that a private attorney is always more effective than a public defender.

Second, statewide public defender offices can use performance data and institutional processes to implement uniform structural and attitudinal changes that insure consistently excellent representation from all attorneys working in the office. The question of access to information about attorney performance is still relevant but should be reframed. It is not a question of how individual clients can evaluate individual attorneys, but of how the public sphere can use the information available to institutionalize excellence in public defense.