The Ethical Dilemmas of Public Defenders in Impact Litigation


“Institutional lawyers,” such as legal services attorneys and public defenders, face a constant barrage of conflicting obligations and loyalties to different clients. Elsewhere in this Colloquium, Martin Guggenheim describes several of the ethical problems that emerge in the institutional lawyer’s daily representation of individual clients. This article will explore some of the equally perplexing ethical issues that arise when the institutional lawyer goes beyond individual representation and embarks on “impact litigation.”

The most familiar type of impact litigation is the class action, and the literature on ethics in impact cases has tended to focus exclusively on this form of litigation. Because class actions are invariably the result of meticulous advance planning, they are peculiarly susceptible to detailed rules and procedures for resolving ethical conflicts.

This article will focus on a type of unplanned (and occasionally chaotic) impact litigation that is, in some respects, the hallmark of the institutional lawyer. Because legal services attorneys and public defenders each represent a clientele with certain uniform problems, the same issues tend to reappear incase after case. Occasionally, one of these agencies or a public interest law center will bring a class action to address such an issue. Far more frequently, however, the issue is raised in each of the individual cases until it is finally resolved by the highest appellate court of that jurisdiction. This approach creates an inherent potential for ethical conflicts. Because the clients’ interests often diverge, lawyers from the same office frequently find themselves arguing totally inconsistent positions. For example, one lawyer argues an interpretation of a statute that benefits her client, while her colleague attempts in a different case to convince the same judge that the statute should be interpreted in the opposite way.

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