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Get Over It
By B John Burns
April 8, 2015

If you pay attention to these things, last Friday I received an interesting response from someone who goes by the screen name “Billob” to my blog entry taking issue with the suggestion of Justice Waterman in his dissenting opinion in State v. McKinley that public defenders should be held to a lower standard of ethics than other attorneys.

“I don’t get why you’re bent out of shape by this,” Billob shoots back.  “If your concern is that this somehow tarnishes the esteem of public defenders, then, what the fuck? get over it.”

It’s one thing if Billob is a public defender, and his skin is so thick after years and years of suffering the slings and arrows that only a public defender suffers that he’s able to shake it off and ignore the insults and backhanded compliments that are a constant in our field.  And it’s a remarkably manly act, too.  Because if Billob is a public defender, he knows how I handle criticism.  But if Billob was a public defender, I’d probably let it go.

Well, I’ve got a pretty good idea who Billob is.  If I’m wrong, I apologize to everyone.  If I’m right, however, Billob is no public defender.  He did go to law school, and graduated 45 years ago, during Richard Nixon’s first term as President.

But Billob has never represented a client.  He’s never walked into a courthouse as an advocate.  

Instead, Billob parlayed his legal education into a long, colorful career as a pencil-pushing bureaucrat.  So OF COURSE he doesn’t get why we’re bent out of shape by this.  He’s never had the experience of being at a cocktail party hearing “reputable” members of his profession spouting jokes about the competence of people who do what he does for a living.  Right to your face.  He’s never had the experience of reading a published opinion written by a justice who, himself, has never worked in a public defender office that undertakes to describe with apparent authority what a public defender does for a living.  I don’t know if there’s a descriptor for a pencil-pushing bureaucrat equivalent to the phrase  “public pretender.”  I bet there isn’t.

The best analogy I could draw would be if judges and justices were free to hire their own personal pencil-pushing bureaucrats, if they had the financial resources to do so.  The judges and justices who did not would be forced to rely upon the pencil-pushing bureaucrats provided to them at government expense.  Of course, the pencil-pushing bureaucrats provided at public expense would be much busier, and there would be widespread recognition for the fact that judges and justices forced to rely on them would have to get used to a lower degree of competence.  And, if I’m a pencil-pushing bureaucrat worth my salt, I’m going to be snapped up by one of those rich judges or justices who can afford to hire their own.   If I wind up working for the government, then. . .well, you know.

Of course, Billob, you’re not going to get bent out of shape by that analogy, are you?  You’re not going to be concerned about “tarnishing the esteem” of pencil-pushing bureaucrats, are you?  You’re just going to “get over it,” right?

“[I]f conflicts are not automatically imputed to PD’s offices then there are more indigent defendants who can avail themselves of the benefit of being represented by a PD,” you argue.  That’s always been the bottom line, hasn’t it?   The public defender system is the bargain basement of the justice system.  We accept a reduction in quality in exchange for quantity.  And the reduction in quality IS the universal assumption.

“[M]aybe I’ve missed your point,” you acknowledge, “and your real concern is that in practice there is a very serious danger of conflict in so many cases that the automatic bar is needed to protect defendants.”

You DO miss the point, Billob.  Still.  The point is that the real danger arises when it is suggested, in a published opinion by a Supreme Court justice, that a public defender should answer to a set of ethical rules less stringent than those which apply to other attorneys doing the exact same thing.  It is an institutional assurance that public defender clients WILL receive a lower level of representation.  If there’s a reason for an automatic bar in a private law firm, the reason holds the same weight in a public defender office.

And, yes, I am concerned that this DEFINITELY tarnishes the esteem of public defenders.  And, as someone who has actually done the job, Billob, I am NOT going to get over it.

Now, I know that some of you other public defenders out there are going to approach me about this and tell me, “John, you’re getting soft.  This PENCIL-PUSHING BUREAUCRAT came on OUR website and is just ASKING FOR IT.  He’s TAUNTING you.  You’ve NEVER let anyone off this easy.”

I’m guilty as charged of that.  I know where Billob went to high school, so I have to cut him some slack.
Comments (2)Add Comment
State Appellate Defender
written by Mark Smith, April 08, 2015
The "Waterman" position is one advocated by the State in its brief to the Supreme Court. It is also the one which is applied to prosecutors--conflicts are generally not imputed to them. [Rule 32:1.10 is not incorporated into Rule 32:1.11] McKinley never suggested that public defenders should not be held to the highest professional standards. No public defender advocates for any lesser standard.
An Iowa Lawyer
written by Mark Smith, April 08, 2015
The Waterman position was the State's position in their appellate brief. They suggested that public defenders be treated like prosecutors and other "government lawyers" where conflicts are not imputed to other attorneys in the office. McKinley never suggested that his public defenders should be held to this lower standard of professionalism; no public defender would suggest that they should not meet the highest ethical standards.

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