Dispute over indigent representation leads to lawsuit

Justice A.A. Birch Building

Nashville criminal defendant Ricky House wanted new legal representation last fall as he waited in jail for the resolution of his case.

His pursuit led to a tense dispute between former Nashville Public Defender Dawn Deaner, Judge Cheryl Blackburn and House’s then-court-appointed attorney Anthony Thompson. Deaner this week filed suit in federal district court against both Blackburn and the Tennessee Board of Professional Responsibility, which litigates ethical complaints against lawyers and is investigating Deaner. 

Deaner, who now runs the nonprofit Choosing Justice Initiative after more than two decades in the public defender’s office, was seeking to represent House after the Nashville man contacted the organization last September. After meeting with House, Deaner filed a request on his behalf in Blackburn’s court, leading to a hearing at which the judge accused the former public defender of ethical violations. 

“Just out of the blue, you have attacked another attorney about what they’ve done, you’ve put it in open forum, and then you’ve interfered with the relationship between the attorney and the client,” Blackburn said during a November hearing, according to a transcript included in a newly filed lawsuit by Deaner against Blackburn and the Board of Professional Responsibility. “In other words, you’re telling me that I don’t have the ability to decide who is a good lawyer and isn’t a good lawyer.”

The judge could not be reached for comment.

Blackburn reported the interaction to the board, as did Thompson, and the board initiated disciplinary proceedings against Deaner. The body offered Deaner diversion, according to filings in the new lawsuit: If she completed three hours of ethics training she could avoid discipline.

But Deaner, in another filing included as an exhibit in the lawsuit, disputed the board’s ruling that her actions constituted ethical violations, and the matter is still pending. Deaner is asking the federal district court in Nashville to enjoin the board from disciplining her. 

“In this case, Dawn was attempting to contact people who are trapped in jail without access to competent counsel, and because they are appointed incompetent counsel and are unable even to speak to other attorneys, according to the defendants’ interpretation of the law,” said Charles Gerstein, one of the Washington, D.C.-based attorneys representing Deaner. “The problem of retaliation against defense attorneys who attempt to challenge injustice in the criminal justice system is unfortunately very widespread.”

In Thompson’s complaint to the board, his representative alleged that Deaner “openly and publicly assail[ed] the good name and reputation” of the attorney. Deaner, citing House’s own statements, argued that Thompson’s communication with his client was limited and that the client was unhappy with the representation. According to the filings, House complained that his attorney did not file motions for reduced bail or suppression of evidence. 

Deaner also sought to highlight more systemic issues related to the court-appointed attorney system in Tennessee by citing a 2017 Tennessee Supreme Court-commissioned report on indigent representation that found an “increasing frequency with which appointed private counsel lack the experience or the skill to provide adequate representation.” The report also found that compensation for court-appointed defense attorneys, which hasn’t changed in more than two decades, was insufficient.

The mission of CJI’s Choice Lawyer Project is to recruit qualified attorneys whom defendants can select as their court-appointed defender, addressing what Deaner said is a conflict of interest when a judge picks the defense attorney in a case they are overseeing. 

“The ultimate goal is to ensure that people who need quality representation and may not be getting that are able to get it,” Deaner said. “Everybody is entitled to an effective defense and an adequate defense when they're charged with a crime. That's in our Constitution. For decades that hasn't really been guaranteed. No one should have to wait until after they are convicted to raise the issue of whether or not their court-appointed lawyer is meeting the standards required by the constitution.”

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