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Qualitative Assessments of Effective Assistance of Counsel

17 Pages Posted: 1 Aug 2012 Last revised: 3 Aug 2012

Date Written: July 31, 2012


In this invited essay, I suggest that public defenders seeking relief from excessive caseloads differentiate themselves from other burdened stakeholders by using a more qualitative, ethics-based approach to assess effective assistance of counsel. Part II of this Article chronicles the current quantitative, numbers-based approach to measuring effective assistance given the U.S. Supreme Court’s current Strickland standard. Part III.A turns to the more qualitative, ethics-based standards for assessing effective assistance as expressed in the ethical rules. Part III.B then illustrates how to use those qualitative standards when seeking caseload relief from courts. First, in Part III.B.1, I show how to view the excessive caseload problem as an unethical conflict of interest that should be addressed at the outset of a proceeding. By viewing an excessive caseload as a conflict of interest, rather than as a competency issue, public defenders can further distinguish their claims for relief from the claims of other overworked constituents. Specifically, in Part III.B.2, I show how public defenders could use existing qualitative ethical standards to highlight the hidden harms of excessive caseloads and to increase the chances of their ethical obligations being honored by judges. Part IV concludes that using qualitative ethical standards is a particularly advisable approach in times of resource constraint when everyone — lawyers, judges and legislators — can be “blinded by numbers.”

Keywords: effective assistance of counsel, Gideon, 6th amendment, conflict of interest, ethics, professional responsibility

Suggested Citation

Anderson, Heidi Reamer, Qualitative Assessments of Effective Assistance of Counsel (July 31, 2012). Washburn Law Journal, Vol. 51, No. 3, 2012. Available at SSRN:
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