A Colorado public defender alleges he was fired in retaliation for publicly raising concerns that his workload was too high for him to ethically represent his clients, according to a newly-filed lawsuit against the Colorado Office of State Public Defender.
Five-year Colorado public defender Travis Weiner said he was fired in February for refusing to keep his ethical concerns quiet when he was assigned more cases than he could handle.
“For airing that dirty laundry, I was punished,” Weiner said in an interview. “But this is so much bigger than me. …It’s about this problem that has just been getting worse and the leaders of this system are not being intellectually honest and morally and ethically courageous about it.”
James Karbach, a spokesman for the Office of the Colorado State Public Defender, declined to comment Monday. Public defenders are state-paid criminal defense attorneys who provide constitutionally mandated, free legal representation to people who can’t afford to hire an attorney or who are incarcerated.
The state’s public defenders have faced heavy workloads for years. Weiner was routinely handling around 100 felony criminal cases at a time as a public defender in Greeley, he said.
While common for Colorado public defenders, that number of cases is far and beyond the level recommended by the American Bar Association, which suggests attorneys handle no more than 100 case a year — not at one time. All attorneys have an ethical duty to avoid excessive caseloads, the association says.
James Hardy, executive board communications co-chair for the Defenders Union of Colorado, an unrecognized employee union for public defenders, said Colorado’s public defenders are carrying two or three times more cases than what experts recommend for ethical representations.
“I have observed, in my time as an appellate attorney, many instances of things that trial lawyers either don’t do, or miss, or do wrong that seem to be the result of having too many cases,” Hardy said.
In late 2023, Weiner felt he had too many cases and could not do a thorough job for each client, the lawsuit alleges. He routinely did not have time to watch all of the body-worn camera footage connected to each client’s case and would recommend clients plead guilty even though he had not reviewed all of the footage and evidence in the case, the complaint alleges.
“There is no lawyer alive — it wouldn’t matter if you worked 24 hours a day — who can really do a zealous, ethical job on all those cases,” Weiner said.
But when Weiner raised concerns with his supervisors, they expected him to triage his cases by spending less time on defendants with minor charges and more time on defendants with serious charges, he said. His supervisors also told him they did not believe he was violating ethical mandates, and that he was providing adequate legal representation, according to the complaint.
Weiner fundamentally disagreed with that approach.
“This culture and this attitude among some in the public defense community that individuals charged with lower level offenses are just causalities of triage and it’s OK not to do as good a job — it’s born out of necessity, but… it is a dereliction of duty, it’s against the law and it’s not what any of us would want if we were facing those charges,” he said.
Weiner instead wanted to withdraw from some of his cases and have an attorney from the Office of the Alternate Defense Counsel assigned to the cases instead. Attorneys who work as alternate defense counsel are paid by the state on a contract basis to represent indigent or incarcerated clients when public defenders cannot.
His supervisors told him he could not do so. Under Colorado law, “case overload (and) lack of resources” don’t qualify as a conflict of interest that would allow for a public defender to pass a case to alternate defense counsel.
But Weiner nevertheless tried. On two cases in December 2023 and January 2024, he filed motions with the judges asking to withdraw from the cases due to his excessive workload. He argued the state law that said caseload wasn’t a conflict of interest was unconstitutional.
“Weiner disclosed that this ‘status quo’ was ‘unconstitutional, unethical’ and ‘illegal’ but that OSPD leadership and other stakeholders ‘never speak its name’ and ‘allow this proverbial elephant-in-the-room’ to ‘grow, without protest or action of any kind,’ ” the lawsuit states, quoting from the motions.
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The judges on the cases never ruled on the requests, however, because Weiner’s supervisor immediately withdrew the filings and reassigned the cases to herself and another public defender. His supervisors then put Weiner on a performance improvement plan, and he was later fired.
Hardy said he believes the law that prevents public defenders from transferring cases to alternate defense counsel because of high caseload or a lack of resources is both unconstitutional and unethical.
“Public defenders are not exempt from the ethical rules,” he said, speaking for the union. “…Which means an attorney has to be able to say no to a case when they are already at the limit of their capacity. And that law makes it impossible under state law, which I believe violates the Sixth Amendment and the Rules of Professional Conduct.”
Weiner went on to take a job as a public defender in New Mexico, where his caseload is half what it was in Greeley, he said. He hopes the lawsuit draws attention to the issue of public defender workload, and that other public defenders might feel they too can seek to withdraw from cases.
“I’m hopeful that if we get a judgment that retaliating against public defenders for doing what I did is against the law, then if other public defenders feel the need to do what I did, they can feel free to do so without fear of retaliation,” he said.
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