Unconscionable Contracting for Indigent Defense: Using Contract Theory to Invalidate Conflict of Interest Clauses in Fixed-Fee Contracts

Indigent defense remains in crisis and yet constitutional challenges to promote systemic change have met with mixed success. This Article explores the new strategy of applying contract theory and principles to challenge indigent defense contracts that violate the canons of professional responsibility. This Article begins by discussing the author’s experience working on cases of indigent defendants whose convictions were overturned through the efforts of the Innocence Project Northwest. The erroneous convictions were facilitated by the indigent defense contract in place at the time of the convictions. Pursuant to this contract, the indigent defense contractor agreed to provide representation in all criminal cases in the county for a fixed price, and to hire and pay for conflict counsel out of the lump-sum fee. This Article discusses why such a contract creates multi-faceted conflicts of interest between the contracting attorney, conflict counsel, and their clients. Since these conflicts are too grave to waive through the process of informed consent, the provisions of the contract are unconscionable, and violate the public policy encompassed in the canons of professional responsibility. This Article suggests that bar associations are uniquely situated to use the principles of contract law to challenge indigent defense contracts that violate the rules of ethics by their very terms.