Is It Possible to be An Ethical Public Defender?



The notion that there exists a crisis of public defense is not controversial. While much of the analysis has ended with the dire need for greater funding of public defense systems, this paper argues that the role of public defenders is misunderstood by the rules that guide their ethical conduct. While the American Bar Association’s Model Rules, Defense Function and Prosecutor Function may not be enforceable by the courts, they serve as an important starting point in understanding the ways in which the profession views the function of public defenders. And yet, the rules contradict one another, they conflict with the more widely enforceable constitutional standards that govern adequate counsel in criminal cases, and they ignore the functional realities of practicing criminal law, including poor funding. This paper explores the shortcomings in the rules and argues that the rules can, and should, be modified for the benefit of public defenders and the clients they serve. Though the rules do not create black letter law for public defenders to follow, they reflect the conception of the role of public defenders in the criminal justice system, and a reimagining would serve as a helpful exercise in shaping a more ideal environment to nurture a thriving system of public defense.

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