Lawyers and prosecutors in Jackson County have their eyes on a case before the Oregon Supreme Court that might impact the jobs of public defenders in the Rogue Valley.

The case involves Public Defender of Marion County, which is challenging a circuit court judge’s decision to appoint one of its attorneys to represent a defendant despite the firm telling the court it is understaffed and would not accept more cases for now. The justices heard oral arguments between parties Tuesday in Salem but did not make a decision.

The high court’s case comes as Oregon is experiencing a shortage of public defenders that has reached crisis stage. The shortage has resulted in thousands of defendants without counsel, with Jackson County consistently at or near the top of the list of counties in Oregon with the most unrepresented persons. As of Wednesday, the county had 583 people without counsel, second only to Multnomah County.

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“I’m not going to go work for free. I just think the very idea of forcing attorneys into work … when they say they have met their ethical capacity … is insulting.”

— Lisa Greif, public defender, and former Circuit Court judge

Jackson County Circuit Court judges have not yet begun forcing local lawyers to take on new criminal cases, but they have allowed some to represent more defendants if they say they have capacity beyond their contracted limits.

Lisa Grief, a former Jackson County Circuit Court judge who retired in 2021 to become a public defender, took on three more cases, including one involving a man accused of rape. 

She called the extra cases “extraordinary” and does not plan to take on any more beyond what she is currently working on. Greif said she would quit public defense if the high court sides with the trial court judge who made the forced appointment.

“You can use that as 100% my position. I will not take public defense cases if I am forced to,” Grief said. “(Then) I’m done. I don’t think I’m alone in that.”

Clint Oborn, the executive director of Southern Oregon Public Defenders, wasn’t willing to say whether he would stay in the profession if the Supreme Court sides with the trial court.

“I’d be putting up a fight about it differently,” Oborn said. 

But he echoed Grief’s position on forced appointments, saying he does not believe trial judges should “interfere” with attorney-client relationships. 

“We make the determination on what is our ethical capacity,” Oborn said. “Attorneys go to school for a reason.”

Oborn said defendants charged with crimes are entitled to quality representation.

“You’re entitled to an attorney that knows the law and can actually help you,” he said. “Otherwise, it’s just doing lip service to a constitutional value.”

Having been a trial court judge, Greif said the court doesn’t have money to pay lawyers or have the ability to order the Office of Public Defense Services, the agency with which her firm contracts, to pay her for extra cases.

“I’m not going to go work for free,” Greif said. “I just think the very idea of forcing attorneys into work … when they say they have met their ethical capacity … is insulting.”

Greif predicted a “mass exodus from public defense” if the state Supreme Court ruled judges could force lawyers into appointments.

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“We make the determination on what is our ethical capacity. Attorneys go to school for a reason.”

— Clint Oborn, executive director of Southern Oregon Public Defenders

Oborn noted that the high court’s case focuses on a lawyer’s “ethical capacity” to take on more cases. The leader of Southern Oregon Public Defenders believes the courts have “no understanding of how stressed out someone is on a caseload.”

“They shouldn’t be the arbiter in determining if someone should take over their capacity or whether they need to take a lower capacity,” Oborn said. “Better arbiters of that are the … clients who feel like they’ve actually had time to meet with an attorney.”

Inside the high court’s chambers Tuesday, Kristin Asai, the attorney representing Public Defender of Marion County, made the case that Marion County public defender Tim Downin’s appointment was forced beyond his ethical standards. Asai asked the court to grant a writ of mandamus, a legal maneuver from a higher court that instructs a lower court to rule, without telling that court which way to decide. 

“This mandamus is about the court’s forced appointments of an attorney, despite the only evidence in the record being that no one, including this individual attorney, had the ethical capacity to represent that client,” Asai said.

She argued the justices should throw out Marion County Circuit Court’s order because she believes the court has a duty to honor Public Defender of Marion County’s assessment that its lawyers can’t currently handle more cases.

Under questioning from the justices, Asai said the court can inquire about a lawyer’s ability to handle a new case, but judges “should be giving the public defense provider — in this case Public Defender of Marion County — substantial deference in making that determination.”

That deference, Asai said, should be given out of a lawyer’s ethical obligation to be truthful to the court about his or her obligations, and also because those attorneys are in the best position to know whether they can take on more cases.

“If they can’t … that should be respected,” Asai said.

Paul Smith, an Oregon Department of Justice attorney who represented the state in Tuesday’s arguments, said that while Public Defender of Marion County argues the court should give the agency “almost complete deference” in deciding whether its attorneys can take on more cases, it has offered “no viable solutions” to make sure an unrepresented defendant has an attorney.

“This court should issue a writ only if it can conclude that the trial court had no other option but to allow (Public Defender of Marion County’s) motion, not appoint attorney Downin and grant the additional injunctive relief that (PDMC) was asking for,” Smith said. 

Questioned by the justices about what the source of authority is for a judge to appoint a lawyer to a case despite that person telling them they can’t, Smith replied he did not have “a satisfactory answer.”

“The authority gets back to the court’s inherent authority to call upon its officers to assist it … in requiring criminal defendants to have counsel,” Smith said. 

He added that the state is concerned about the public defender shortage crisis and noted that the Legislature had recently passed a $300 million package of reforms to help incentivize more attorneys.

“Based on those reforms, this court should really endeavor to avoid any action that could potentially derail those reforms,” Smith said. “We suggest that what (Public Defender of Marion County) is asking would do just that.”

In her rebuttal statement, Asai noted Smith’s lack of substance when asked how a judge can make a forced appointment.

“The state just admitted that it has no authority allowing a trial court to force-appoint an attorney under these circumstances,” Asai said. “So this is an extraordinary circumstance and it deserves an extraordinary remedy of mandamus.”

Asai acknowledged that if forced appointments like ones in Marion County are lifted, the state would have even more unrepresented defendants.

“We know … there aren’t enough public defenders to do this work,” she said.

With that in mind, Asai proposed the court “set a framework” that encourages trial courts to “work collaboratively with the state and the public defenders” to help end the shortage. That work could include dismissing cases so attorneys can turn their attention to defendants charged with more serious crimes, Asai said.

Greif is aware of the Marion County Public Defenders’ case and the justices’ arguments.

“I don’t know how it will go,” she said. “The Supreme Court, they make their decisions based on what is presented to them.”