SAN FRANCISCO – The ongoing public hearings over the San Francisco Public Defender’s declaration of unavailability may be coming to a conclusions, with Wednesday’s testimony appearing to wrap up public testimony.
Whether there will be any sort of formal ruling from the bench remains at issue.
The central question remains whether the Public Defender’s Office is legally and ethically unable to accept new felony cases or whether capacity remains for continued appointments.
Judge Harry Dorfman underscored what he sees as his obligation, stating, “The law makes me, it orders me every day to appoint lawyers to represent indigent defendants.” He added that the court faces “daily pressure” to meet its constitutional and statutory obligations and said the declarations have created a months-long challenge for felony arraignments.
Conflicts Panel Administrator Julie Traun updated the court on City Hall negotiations, stating, “There have been ongoing conversations with City Hall. In my view, this has always been a problem that the city needs to fix.”
She said the Controller’s Office report is expected soon and could “be of assistance to the court” and to policymakers.
Traun urged the judge to delay a ruling, saying, “I think we will have a very clear indication that we may be able to end this… with respect to felonies. I think there may be a resolution by early January.”
She requested that he “just hold off until early January so we can see where we are and maybe no decision is needed.”
She also pointed to financial consequences, explaining, “While they’re declaring unavailability, the court is appointing lawyers and the city will have to pay that bill.”
Traun described rising pressures in the criminal legal system and warned that today’s defense environment is more demanding than ever.
“There has never been a harder time to practice criminal defense work ever,” she said, citing surges in mental health cases, massive discovery workloads and the complexity of client needs.
Judge Dorfman acknowledged those pressures yet questioned whether all panel lawyers were at maximum capacity, noting volunteer case pickups.
Traun responded that those gestures should not be mistaken for institutional capacity, saying, “I suspect that if they were attorneys in the public defender’s office, they would be told not to take any more cases.”
She emphasized that the conflicts panel has met the court’s needs: “We have never failed our court in providing conflicts, lawyers, and to date, we have not yet failed the court in providing at least enough lawyers to cover what’s happening.”
But she reiterated that the preferred model remains “a fully staffed, fully funded public defender office” supported by experienced conflict counsel.
On the question of mediation with retired Judge Richard Zitrin, Traun clarified, “Let’s hold off. Let’s see what happens with City Hall.”
Assistant Chief Attorney Hadi Razzaq followed with extensive statistical testimony. He explained that corrections to the court’s data dashboard brought the number of unavailable felony cases into line with the public defender’s own records, saying the office was unavailable in “about 11.5% of felony cases since May.”
He argued that the net burden on panel attorneys has been relatively limited. “The actual impact on the panel is that they were appointed in 130 additional felony cases,” he said, characterizing the declarations as “modest and restrained.”
Razzaq expressed concern that the court still lacks complete panel caseload data. “So far the panel has not been able to provide you either in a systematic way… or with the lawyer self-reporting,” he said, adding that the absence of that information leaves the record “incomplete.”
He cited examples of public defenders handling more than 60 active felony cases, some involving serious or violent offenses, and argued that workload standards are being exceeded. He stressed that enhancements and multi-count complaints, not reflected in top-charge counts, make matters worse.
Razzaq also challenged the perception that collaborative courts reduce workload. “Sometimes these cases take eight or 10 more court appearances than it would for me to settle a case in the traditional way,” he said, emphasizing the complexity of diversion and mental health advocacy.
Judge Dorfman reiterated his statutory duty, stating, “The first focus of the court is the public defender’s declaration of unavailability,” and reminding participants that the law requires him to “start with the public defenders for indigent defendants.”
Razzaq responded that once the office determines it has reached ethical capacity, the court “has to look at the panel.” He cited American Bar Association guidelines, arguing, “The Sixth Amendment does not say effective assistance of counsel compared to peer offices,” and emphasized that public defender offices must resist judicial pressure to exceed ethical limits.
As the hearing concluded, the judge acknowledged the length of the proceeding and the effort by all parties.
“All of our current challenges began in May, and here we are in the middle of December seven and a half months later,” he said. “I think everybody here is in good faith.”
He said he will review the record further and may seek additional written input.
The court’s ruling—pending City Hall negotiations and the Controller’s Office report—could shape whether the Public Defender’s Office resumes accepting felony cases or continues to be treated as unavailable for purposes of appointment.
At last week’s hearing, Chief Attorney Matt Gonzalez challenged whether Judge Dorfman had the authority to convene and conduct such proceedings, arguing that the court was stretching beyond its proper role by scrutinizing internal decisions about defender capacity and suggesting the matter may exceed the judiciary’s oversight powers.
Follow the Vanguard on Social Media – X, Instagram and Facebook. Subscribe the Vanguard News letters. To make a tax-deductible donation, please visit davisvanguard.org/donate or give directly through ActBlue. Your support will ensure that the vital work of the Vanguard continues.
