felony indigent defense assignments in cuyahoga county,...

FELONY INDIGENT DEFENSE ASSIGNMENTS IN CUYAHOGA COUNTY, OHIO

Volume Two: National Standards & Best Practices

July 8, 2013

David C. Steelman, Esq., Principal Court Management Consultant

Daniel J. Hall, Vice President Court Consulting Services

707 Seventeenth Street, Suite 2900 Denver, CO 80202-3429

(303) 293-3063

National Center for State Courts Page ii

© 2013 National Center for State Courts

This document was prepared under an April 2013 agreement between the County Executive and County

Prosecutor of Cuyahoga County, Ohio, and National Center for State Courts (NCSC), working in consultation with representatives of the Supreme Court of Ohio (SCO), the Ohio State Public Defender’s Office (State PD), the Cuyahoga County Court of Common Pleas (Common Pleas Court), the Cuyahoga County Council (County Council), the Cuyahoga County Clerk of Courts (Clerk of Courts), the Cuyahoga County Public Defender Oversight Commission (County PD Commission), the Cuyahoga County Public Defender’s Office (County PD), the Cuyahoga County Defense Lawyers Association (CCDLA), the Municipal Judges Association (Municipal Judges), and the North East Ohio Municipal Prosecutor's Association (NEOMPA).

The points of view and opinions expressed in this report are those of the authors and do not necessarily represent the official position or policies of the SCO, the State PD, the Common Pleas Court, the County Executive, the County Prosecutor, the County Council, the Clerk of Courts, the County PD Commission, the County PD, the CCDLA, the Municipal Judges, or the NEOMPA.

NCSC grants the SCO, the State PD, the Common Pleas Court, the County Executive, the County Prosecutor, the County Council, the Clerk of Courts, the County PD Commission, the County PD, the CCDLA, the Municipal Judges, and the NEOMPA a royalty-free, non-exclusive license to produce, reproduce, publish, distribute or otherwise use, and to authorize others to use, all or any part of this report for any governmental or public purpose.

Online legal research provided by LexisNexis.

National Center for State Courts Page iii


Table of Contents

Volume One: Report and Recommendations

Page

Preface and Acknowledgments .................................................................................................................. v

Executive Summary of NCSC Recommendations ...................................................................................... ix

Chapter I. Indigent Defense Systems ......................................................................................................... 1 1. Indigent Defense System Options ..................................................................................................... 1 2. Indigent Defense System for Cuyahoga County Felonies ................................................................. 4

Chapter II. Felony Indigent Defense Administration in View of National Standards and Best Practices...................................................................................................................................... 10 1. Independence ................................................................................................................................. 10 2. Mixed System of Defender Office and Private Bar ......................................................................... 13 3. Client Eligibility Screening and Timely Appointment ...................................................................... 14 4. Early and Confidential Contact with Client ..................................................................................... 18 5. Attorney Caseload/Workload ......................................................................................................... 19 6. Attorney Qualifications ................................................................................................................... 21 7. Vertical Representation .................................................................................................................. 24 8. Parity of Resources ......................................................................................................................... 27 9. Attorney Training ............................................................................................................................ 30 10. Attorney Performance .................................................................................................................. 32

Appendix. Dombroff Consent Decree Requirements for Future Conduct ............................................. 34

List of Figures and Tables

Page

Figure 1. County-Level Indigent Defense Systems in Ohio ......................................................................... 3

Table 1. ABA Ten Principles of a Public Defense Delivery System .............................................................. 9

Table 2. Best Practices for Indigent Defense Eligibility Determination .................................................... 16

Table 3. Comparison of Cuyahoga County Assigned Counsel Fee Schedule with OPD Guidelines &

Those in Other Urban Ohio Counties .................................................................................................. 29

National Center for State Courts Page iv


Table of Contents

Volume Two: National Standards & Best Practices

Page

Part A. ABA Ten Principles of a Public Defense Delivery System ................................................................ 1

Part B. Brennan Center Guidelines for Indigent Defense Eligibility Determination ................................... 8

Part C. NLADA Standards for the Administration of Assigned Counsel Systems ...................................... 35

Part D. ACCD Best Practices Committee on ABA Ten Principles in Assigned Counsel Systems ............... 48

Part E. NACDL Assigned Counsel Policies .................................................................................................. 66

Part F. Characteristics of Deficient and Effective Contract Defender Systems ........................................ 71

Resource Volume: NLADA Compendium of Standards for Administration of Defense Services

Page

Acknowledgements .......................................................................................................................... iv

Introduction ...................................................................................................................................... 1

State Legislation and Court Rule Parallels to Standards for the Administration and

Performance of Criminal Defense ......................................................................................................... 3

List of Standards and Table of Key Elements ....................................................................................... 7

A. Defense Services Administration and Standards ............................................................................ 11

B. Scope of Representation .............................................................................................................. 14

C. Financial Eligibility ....................................................................................................................... 28

D. Right to Counsel .......................................................................................................................... 52

E. Plan for Defense Services or Public Defender ................................................................................ 57

F. Mixed Systems ........................................................................................................................... 115

G. Public Defender Offices ............................................................................................................. 122

H. Assigned Counsel Systems ......................................................................................................... 130

I. Contract Defense ....................................................................................................................... 158

Appendix: NLADA Defender Training and Development Standards ................................................... 178

http://www.mynlada.org/defender/DOJ/acknow.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1intro.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1key.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1a.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1b.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1c.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1d.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1e.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1f.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1g.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1h.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1i.htm

http://www.mynlada.org/defender/DOJ/standardsv1/v1appendix.htm

Felony Indigent Defense Assignments in Cuyahoga County, Volume Two

National Center for State Courts Page 1

PART A.

ABA TEN PRINCIPLES OF A PUBLIC

DEFENSE DELIVERY SYSTEM*

* Copyright © 2002 by the American Bar Association. Available online at

http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_gtenprinciplesbooklet.authcheckdam.pdf. These principles were approved by American Bar Association House of Delegates, February 2002. The American Bar Association recommends that jurisdictions use these Principles to assess promptly the needs of public defense delivery systems and clearly communicate those needs to policy makers.

http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_gtenprinciplesbooklet.authcheckdam.pdf

http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_gtenprinciplesbooklet.authcheckdam.pdf



ABA Ten Principles of a Public Defense Delivery System

INTRODUCTION

The ABA Ten Principles of a Public Defense Delivery System were sponsored by the ABA Standing Committee on Legal and Indigent Defendants and approved by the ABA House of Delegates in February 2002. The Principles were created as a practical guide for governmental officials, policymakers, and other parties who are charged with creating and funding new, or improving existing, public defense delivery systems. The Principles constitute the fundamental criteria necessary to design a system that provides effective, efficient, high quality, ethical, conflict-free legal representation for criminal defendants who are unable to afford an attorney. The more extensive ABA policy statement dealing with indigent defense services is contained within the ABA Standards for Criminal Justice, Providing Defense Services (3d ed. 1992), which can be viewed on-line (black letter only) and purchased (black letter with commentary) by accessing the ABA Criminal Justice Section homepage at http://www.abanet.org/crimjust/home.html.

ACKNOWLEDGMENTS

The Standing Committee on Legal Aid and Indigent Defendants is grateful to everyone assisting in the development of the ABA Ten Principles of a Public Defense Delivery System. Foremost, the Standing Committee acknowledges former member James R. Neuhard, Director of the Michigan State Appellate Defender Office, who was the first to recognize the need for clear and concise guidance on how to design an effective system for providing public defense services. In 2000, Mr. Neuhard and Scott Wallace, Director of Defender Legal Services for the National Legal Aid and Defender Association, jointly produced a paper entitled “The Ten Commandments of Public Defense Delivery Systems,” which was later included in the Introduction to Volume I of the U.S. Department of Justice’s Compendium of Standards for Indigent Defense Systems. The ABA Ten Principles of a Public Defense Delivery System are based on this work of Mr. Neuhard and Mr. Wallace.

Special thanks go to the members of the Standing Committee and its Indigent Defense Advisory Group who reviewed drafts and provided comment. Further, the Standing Committee is grateful to the ABA entities that provided invaluable support for these Principles by co-sponsoring them in the House of Delegates, including: Criminal Justice Section, Government and Public Sector Lawyers Division, Steering Committee on the Unmet Legal Needs of Children, Commission on Racial and Ethnic Diversity in the Profession, Standing Committee on Pro Bono and Public Services. We would also like to thank the ABA Commission on Homelessness and Poverty and the ABA Juvenile Justice Center for their support.

L. Jonathan Ross, Chair, Standing Committee on Legal Aid and Indigent Defendants



ABA Ten Principles of a Public Defense Delivery System

With Commentary

1. The public defense function, including the selection, funding, and payment of

defense counsel,1 is independent.

The public defense function should be independent from political influence and subject to

judicial supervision only in the same manner and to the same extent as retained counsel.2 To

safeguard independence and to promote efficiency and quality of services, a nonpartisan board

should oversee defender, assigned counsel, or contract systems.3 Removing oversight from the

judiciary ensures judicial independence from undue political pressures and is an important

means of furthering the independence of public defense.4 The selection of the chief defender

and staff should be made on the basis of merit, and recruitment of attorneys should involve

special efforts aimed at achieving diversity in attorney staff.5

1 “Counsel” as used herein includes a defender office, a criminal defense attorney in a defender office, a contract

attorney, or an attorney in private practice accepting appointments. “Defense” as used herein relates to both the juvenile and adult public defense systems. 2 National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, Chapter 13, The

Defense (1973) [hereinafter “NAC”], Standards 13.8, 13.9; National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States (1976) [hereinafter “NSC”], Guidelines 2.8, 2.18, 5.13; American Bar Association Standards for Criminal Justice, Providing Defense Services (3rd ed. 1992) [hereinafter “ABA”], Standards 5-1.3, 5-1.6, 5-4.1; Standards for the Administration of Assigned Counsel Systems (NLADA 1989) [hereinafter “Assigned Counsel”], Standard 2.2; NLADA Guidelines for Negotiating and Awarding Contracts for Criminal Defense Services, (1984) [hereinafter “Contracting”], Guidelines II-1, 2; National Conference of Commissioners on Uniform State Laws, Model Public Defender Act (1970) [hereinafter “Model Act”], § 10(d); Institute for Judicial Administration/American Bar Association, Juvenile Justice Standards Relating to Counsel for Private Parties (1979) [hereinafter “ABA Counsel for Private Parties”], Standard 2.1(D). 3 NSC, supra note 2, Guidelines 2.10-2.13; ABA, supra note 2, Standard 5-1.3(b); Assigned Counsel, supra note 2,

Standards 3.2.1, 2; Contracting, supra note 2, Guidelines II-1, II-3, IV-2; Institute for Judicial Administration/ American Bar Association, Juvenile Justice Standards Relating to Monitoring (1979) [hereinafter “ABA Monitoring”], Standard 3.2. 4 Judicial independence is “the most essential character of a free society” (American Bar Association Standing

Committee on Judicial Independence, 1997). 5 ABA, supra note 2, Standard 5-4.1.



2. Where the caseload is sufficiently high,6 the public defense delivery system

consists of both a defender office7 and the active participation of the private

bar.

The private bar participation may include part-time defenders, a controlled assigned counsel

plan, or contracts for services.8 The appointment process should never be ad hoc,9 but should

be according to a coordinated plan directed by a full-time administrator who is also an attorney

familiar with the varied requirements of practice in the jurisdiction.10 Since the responsibility to

provide defense services rests with the state, there should be state funding and a statewide

structure responsible for ensuring uniform quality statewide.11

3. Clients are screened for eligibility,12 and defense counsel is assigned and

notified of appointment, as soon as feasible after clients’ arrest, detention, or

request for counsel.

Counsel should be furnished upon arrest, detention, or request,13 and usually within 24 hours

thereafter.14

6 “Sufficiently high” is described in detail in NAC Standard 13.5 and ABA Standard 5-1.2. The phrase generally can

be understood to mean that there are enough assigned cases to support a full-time public defender (taking into account distances, caseload diversity, etc.), and the remaining number of cases are enough to support meaningful involvement of the private bar. 7 NAC, supra note 2, Standard 13.5; ABA, supra note 2, Standard 5-1.2; ABA Counsel for Private Parties, supra note

2, Standard 2.2. “Defender office” means a full-time public defender office and includes a private nonprofit organization operating in the same manner as a full-time public defender office under a contract with a jurisdiction. 8 ABA, supra note 2, Standard 5-1.2(a) and (b); NSC, supra note 2, Guideline 2.3; ABA, supra note 2, Standard 5-2.1.

9 NSC, supra note 2, Guideline 2.3; ABA, supra note 2, Standard 5-2.1.

10 ABA, supra note 2, Standard 5-2.1 and commentary; Assigned Counsel, supra note 2, Standard 3.3.1 and

commentary n.5 (duties of Assigned Counsel Administrator such as supervision of attorney work cannot ethically be performed by a non-attorney, citing ABA Model Code of Professional Responsibility and Model Rules of Professional Conduct). 11

NSC, supra note 2, Guideline 2.4; Model Act, supra note 2, § 10; ABA, supra note 2, Standard 5-1.2(c); Gideon v. Wainwright, 372 U.S. 335 (1963) (provision of indigent defense services is obligation of state). 12

For screening approaches, see NSC, supra note 2, Guideline 1.6 and ABA, supra note 2, Standard 5-7.3. 13

NAC, supra note 2, Standard 13.3; ABA, supra note 2, Standard 5-6.1; Model Act, supra note 2, § 3; NSC, supra note 2, Guidelines 1.2-1.4; ABA Counsel for Private Parties, supra note 2, Standard 2.4(A). 14

NSC, supra note 2, Guideline 1.3.



4. Defense counsel is provided sufficient time and a confidential space within

which to meet with the client.

Counsel should interview the client as soon as practicable before the preliminary examination

or the trial date.15 Counsel should have confidential access to the client for the full exchange of

legal, procedural, and factual information between counsel and client.16 To ensure confidential

communications, private meeting space should be available in jails, prisons, courthouses, and

other places where defendants must confer with counsel.17

5. Defense counsel’s workload is controlled to permit the rendering of quality

representation.

Counsel’s workload, including appointed and other work, should never be so large as to

interfere with the rendering of quality representation or lead to the breach of ethical

obligations, and counsel is obligated to decline appointments above such levels.18 National

caseload standards should in no event be exceeded,19 but the concept of workload (i.e.,

caseload adjusted by factors such as case complexity, support services, and an attorney’s

nonrepresentational duties) is a more accurate measurement.20

15

American Bar Association Standards for Criminal Justice, Defense Function (3rd ed. 1993) [hereinafter “ABA Defense Function”], Standard 4-3.2; Performance Guidelines for Criminal Defense Representation (NLADA 1995) [hereinafter “Performance Guidelines”], Guidelines 2.1-4.1; ABA Counsel for Private Parties, supra note 2, Standard 4.2. 16

NSC, supra note 2, Guideline 5.10; ABA Defense Function, supra note 15, Standards 4-3.1, 4-3.2; Performance Guidelines, supra note 15, Guideline 2.2. 17

ABA Defense Function, supra note 15, Standard 4-3.1. 18

NSC, supra note 2, Guideline 5.1, 5.3; ABA, supra note 2, Standards 5-5.3; ABA Defense Function, supra note 15, Standard 4-1.3(e); NAC, supra note 2, Standard 13.12; Contracting, supra note 2, Guidelines III-6, III-12; Assigned Counsel, supra note 2, Standards 4.1, 4.1.2; ABA Counsel for Private Parties, supra note 2, Standard 2.2(B)(iv). 19

Numerical caseload limits are specified in NAC Standard 13.12 (maximum cases per year: 150 felonies, 400 misdemeanors, 200 juvenile, 200 mental health, or 25 appeals), and other national standards state that caseloads should “reflect” (NSC Guideline 5.1) or “under no circumstances exceed” (Contracting Guideline III-6) these numerical limits. The workload demands of capital cases are unique: the duty to investigate, prepare, and try both the guilt/innocence and mitigation phases today requires an average of almost 1,900 hours, and over 1,200 hours even where a case is resolved by guilty plea. Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation (Judicial Conference of the United States, 1998). See also ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989) [hereinafter “Death Penalty”]. 20

ABA, supra note 2, Standard 5-5.3; NSC, supra note 2, Guideline 5.1; Standards and Evaluation Design for Appellate Defender Offices (NLADA 1980) [hereinafter “Appellate”], Standard 1-F.



6. Defense counsel’s ability, training, and experience match the complexity of

the case.

Counsel should never be assigned a case that counsel lacks the experience or training to handle

competently, and counsel is obligated to refuse appointment if unable to provide ethical, high

quality representation.21

7. The same attorney continuously represents the client until completion of the

case.

Often referred to as “vertical representation,” the same attorney should continuously represent

the client from initial assignment through the trial and sentencing.22 The attorney assigned for

the direct appeal should represent the client throughout the direct appeal.

8. There is parity between defense counsel and the prosecution with respect to

resources and defense counsel is included as an equal partner in the justice

system.

There should be parity of workload, salaries and other resources (such as benefits, technology,

facilities, legal research, support staff, paralegals, investigators, and access to forensic services

and experts) between prosecution and public defense.23 Assigned counsel should be paid a

reasonable fee in addition to actual overhead and expenses.24 Contracts with private attorneys

for public defense services should never be let primarily on the basis of cost; they should

specify performance requirements and the anticipated workload, provide an overflow or

funding mechanism for excess, unusual, or complex cases,25 and separately fund expert,

investigative, and other litigation support services.26 No part of the justice system should be

expanded or the workload increased without consideration of the impact that expansion will

21

Performance Guidelines, supra note 15, Guidelines 1.2, 1.3(a); Death Penalty, supra note 19, Guideline 5.1. 22

NSC, supra note 2, Guidelines 5.11, 5.12; ABA, supra note 2, Standard 5-6.2; NAC, supra note 2, Standard 13.1; Assigned Counsel, supra note 2, Standard 2.6; Contracting, supra note 2, Guidelines III-12, III-23; ABA Counsel for Private Parties, supra note 2, Standard 2.4(B)(i). 23

NSC, supra note 2, Guideline 3.4; ABA, supra note 2, Standards 5-4.1, 5-4.3; Contracting, supra note 2, Guideline III-10; Assigned Counsel, supra note 2, Standard 4.7.1; Appellate, supra note 20 (Performance); ABA Counsel for Private Parties, supra note 2, Standard 2.1(B)(iv). See NSC, supra note 2, Guideline 4.1 (includes numerical staffing ratios, e.g.: there must be one supervisor for every 10 attorneys, or one part-time supervisor for every 5 attorneys; there must be one investigator for every three attorneys, and at least one investigator in every defender office). Cf. NAC, supra note 2, Standards 13.7, 13.11 (chief defender salary should be at parity with chief judge; staff attorneys at parity with private bar). 24

ABA, supra note 2, Standard 5-2.4; Assigned Counsel, supra note 2, Standard 4.7.3. 25

NSC, supra note 2, Guideline 2.6; ABA, supra note 2, Standards 5-3.1, 5-3.2, 5-3.3; Contracting, supra note 2, Guidelines III-6, III-12, and passim. 26

ABA, supra note 2, Standard 5-3.3(b)(x); Contracting, supra note 2, Guidelines III-8, III-9.



have on the balance and on the other components of the justice system. Public defense should

participate as an equal partner in improving the justice system.27 This principle assumes that

the prosecutor is adequately funded and supported in all respects, so that securing parity will

mean that defense counsel is able to provide quality legal representation.

9. Defense counsel is provided with and required to attend continuing legal

education.

Counsel and staff providing defense services should have systematic and comprehensive

training appropriate to their areas of practice and at least equal to that received by

prosecutors.28

10. Defense counsel is supervised and systematically reviewed for quality and

efficiency according to nationally and locally adopted standards.

The defender office (both professional and support staff), assigned counsel, or contract

defenders should be supervised and periodically evaluated for competence and efficiency.29

27

ABA Defense Function, supra note 15, Standard 4-1.2(d). 28

NAC, supra note 2, Standards 13.15, 13.16; NSC, supra note 2, Guidelines 2.4(4), 5.6-5.8; ABA, supra note 2, Standards 5-1.5; Model Act, supra note 2, § 10(e); Contracting, supra note 2, Guideline III-17; Assigned Counsel, supra note 2, Standards 4.2, 4.3.1, 4.3.2, 4.4.1; NLADA Defender Training and Development Standards (1997); ABA Counsel for Private Parties, supra note 2, Standard 2.1(A). 29

NSC, supra note 2, Guidelines 5.4, 5.5; Contracting, supra note 2, Guidelines III-16; Assigned Counsel, supra note 2, Standard 4.4; ABA Counsel for Private Parties, supra note 2, Standards 2.1 (A), 2.2; ABA Monitoring, supra note 3, Standards 3.2, 3.3. Examples of performance standards applicable in conducting these reviews include NLADA Performance Guidelines, ABA Defense Function, and NLADA/ABA Death Penalty.



PART B.

BRENNAN CENTER GUIDELINES FOR

INDIGENT DEFENSE ELIGIBILITY

DETERMINATION*

* Source: Brennan Center for Justice, Eligible for Justice: Guidelines for Appointing Defense Counsel (New York:

Brennan Center for Justice at New York University School of Law, 2008), pp. 6-39, https://www.ils.ny.gov/files/Brennan%20Center%20Eligibility%20Report.pdf. Footnotes have been renumbered here from the original document.

https://www.ils.ny.gov/files/Brennan%20Center%20Eligibility%20Report.pdf



GUIDELINES WITH COMMENTARY

1. Screen people seeking the appointment of counsel to ensure that they are

financially eligible.

Screening is a good idea in almost every jurisdiction. In theory, a jurisdiction with adequate

resources could satisfy its constitutional obligation to provide counsel to those unable to afford

it by providing every defendant with an attorney, regardless of the individual’s income or

assets. However, most jurisdictions struggle to find the resources they need to finance

constitutionally adequate indigent defense services. By spending scarce resources on people

who are able to afford private counsel, jurisdictions risk providing substandard counsel to

everyone – a result that would be both constitutionally impermissible and bad public policy.

News stories of wealthy individuals receiving publicly funded counsel also lead legislatures to

question whether they are providing too much funding for public defenders. As a practical

matter, then, the relatively small expense of running a screening process is certainly

worthwhile.

Many of the public defenders responding to our questionnaire prefer systems that screen. One

defender in San Luis Obispo County, California, characterized the county’s failure to screen as

“particularly galling as I am a contract defender paid on a flat fee basis, and, as such, my

workload is negatively affected by judicial indifference [to screening].” This observation – that

a failure to screen can undercut the quality of the services provided, ultimately harming the

defendants – has potential relevance for all jurisdictions with limited resources, regardless of

the structure of their systems.1

For these reasons, if screening can reduce a jurisdiction’s expenses, jurisdictions should screen.

This is particularly true given that screening can be done accurately, efficiently, and cost

effectively, as explained in Guideline 5.

1 Flat fee” contract systems have been generally discouraged by the ABA and NLADA. According to the ABA,

“assigned counsel should receive prompt compensation at a reasonable hourly rate and should be reimbursed for their reasonable out-of-pocket expenses. Assigned counsel should be compensated for all hours necessary to provide quality legal representation.” American Bar Ass’n, Criminal Justice Standards: Providing Defense Services (3d ed., 1992), Standard 5-2.4. NLADA suggests that “in developing a fee schedule, the effect of the fee schedule upon the quality of the representation should be considered. Fee structures should be designed to compensate attorneys for the effort, skill and time actually, properly and necessarily expended in assigned cases.” Nat’l Legal

Aid and Defender Ass’n, Guidelines for Legal Defense Systems in the United States, Guideline 3.1 Assigned Counsel

Fees and Supporting Services (1976).



2. Apply screening criteria and processes uniformly, and commit them to

writing.

States should use uniform screening criteria and procedures as much as possible. After all,

when fundamental rights – like the right to counsel – are at stake, the Constitution requires

that similarly situated people be treated similarly.2 Moreover, as the Supreme Court has

stated, the “touchstone of due process is protection of the individual against arbitrary action by

government.”3 And states cannot be sure that they are fulfilling their Sixth Amendment

obligation to provide counsel if they allow counties, judges, or other actors to exercise

untrammeled personal discretion over who gets counsel and who does not. For a variety of

constitutional reasons, then, uniform criteria and procedures are needed.

In addition to fulfilling a constitutional imperative, uniform screening within a state is good

public policy. Uniform screening enables states, counties, and public defenders to forecast

future resource and budgetary needs. Furthermore, by promoting fair treatment of individuals,

uniform screening helps to increase public trust in the criminal justice system.

The requirement of uniformity involves several components. First, explicit, written standards

should instruct the person who conducts the screening as to the factors that are to be

considered when determining eligibility. If eligibility criteria are left entirely to a screener’s

discretion, one individual may consider money spent for certain expenses (such as childcare) to

be unavailable for defense costs, while another screener may not. Uncertainty regarding

eligibility criteria creates an unacceptable risk that a person found eligible by one screener

might be found ineligible if screened by someone else.

Although statewide uniformity of screening criteria and procedures is desirable, local variations

in the cost of retaining private counsel and in the cost of living may require that particular

jurisdictions depart from statewide standards (although screening “procedures” should always

remain uniform). As a general guideline, each jurisdiction – e.g. a county or judicial district –

should use uniform screening criteria insofar as relevant costs are consistent in the jurisdiction,

particularly the cost of retaining private counsel and the cost of living. Where these costs are

unique, income and assets eligibility criteria should be adjusted to reflect this reality. As

discussed further in Guideline 4, decisions regarding eligibility should always rest on the

individual’s actual ability to afford counsel.

2 See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) (“The Equal Protection Clause of the

Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.”) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). 3 Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (citation omitted).



Some states currently have uniform screening criteria and procedures throughout the state.

These include, for example, Massachusetts, New Hampshire and Oregon.4

However, other states lack uniform screening criteria or procedures, or both. In New York, for

example, each county is free to determine its own screening criteria and procedures.5 In

California, the website of the Los Angeles County Public Defender warns, “[N]ot every court

handles the issue of financial eligibility for the Public Defender in the same way.”6 Defenders in

Arizona, Arkansas, Florida, Illinois, Michigan, Oklahoma, Pennsylvania, Tennessee, and Virginia

all told us that screening practices varied throughout their states.7

Some defenders added that screening practices can even vary from judge to judge. One public

defender from Illinois wrote:

The bulk of defense work in the state is done by judges appointing public defenders, and the judge’s standards of poverty can vary wildly. I have seen some cases where the [public defender] has been appointed by one judge, and later another will review that appointment, especially if the defendant is on bond and there is cash on file with the court.

4 The Massachusetts indigency screening procedure, and the criteria screeners should use, are set out in Mass.

Gen. Laws Ann. ch. 211D §§ 2, 2 1/2, and in Supreme Judicial Court Rule 3:10. The New Hampshire indigency screening procedure, and the criteria screeners should use, are set out in N.H. Rev. Stat. Ann § 604-A:2 and N.H. Code of Admin. Rules § 1003.02.; Or. Rev. Stat. § 151.485(2) (requiring the Public Defense Services Commission to develop a financial eligibility form and “adopt uniform statewide guidelines and procedures that prescribe how to use the form and determine financial eligibility for appointed counsel”).

Additionally, the Nevada Supreme Court has proposed new, written criteria that would be applicable statewide but would provide for procedural variations in each judicial district based on “the unique circumstances and case management systems existent in the various judicial districts.” In the Matter Concerning the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases, ADKT No. 411 (Nev. Jan. 4, 2008), available at http://www.nvsupremecourt.us/documents/orders/ADK-T411Order.pdf. Although each judicial district was required to submit a plan regarding the administration of the new system by May 1, 2008, the order is currently stayed indefinitely for all but two counties. In the Matter Concerning the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases, ADKT No. 411 (Nev. Mar. 21, 2008), available at http://www.nvsupremecourt.us/documents/orders/ADKT411.order.pdf. 5 American Bar Ass’n, Gideon’s Broken Promise: America’s Continuing Quest For Equal Justice 12 (2004). For a

description of the problems caused by wide variety in eligibility standards and screening mechanisms in New York State, see N.Y. State Defenders Ass’n, Determining Eligibility for Appointed Counsel in New York State: A Report from the Public Defense Backup Center (1994), available at http://www.nysda.org/elig_toc.htm. 6 Los Angeles County Public Defender, Frequently Asked Questions, available at

http://pd.co.la.ca.us/FAQS.html#Anchor-Ho-14980. 7 A report by a Pennsylvania Supreme Court committee confirms, “The Commonwealth maintains . . . no written

indigency guidelines.” Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System (2003), p. 184, available at http://www.courts.state.pa.us/index/supreme/biasreport.htm.

http://www.nvsupremecourt.us/documents/orders/ADK-T411Order.pdf

http://www.nvsupremecourt.us/documents/orders/ADKT411.order.pdf

http://www.nysda.org/elig_toc.htm

http://pd.co.la.ca.us/FAQS.html#Anchor-Ho-14980

http://www.courts.state.pa.us/index/supreme/biasreport.htm



Even in states where screening is governed by state law, actual practice can vary widely. A

public defender from Ohio told us that although Ohio has an official statewide process,8

counties seem to pick and choose which parts of the state standard to use: small counties with

limited resources tend to screen for indigency, while larger counties tend not to do so.

3. Ensure that screening is performed by someone who does not have a conflict

of interest.

To ensure the legitimacy of the screening process, several general principles are important.

First, it is essential that screeners be free of any conflict of interest or other ethics violation.

Second, the screening process should not overly empower the prosecutor’s office. And third,

the screening process should not cast doubt on the defense counsel’s loyalty to his or her client

or on the presiding judge’s impartiality.

Given these principles, a number of people and entities can appropriately serve as screeners,

including: (1) the committing magistrate, court personnel, or judges other than the presiding

judge; (2) the pretrial services branch of the adult probation department; (3) an independent

pretrial services division; (4) another government agency; or (5) a non-government (“third-

party”) organization with a government contract. Screening should not, however, be

conducted by the prosecutors’ office, by the particular defender who would take the case, or by

the presiding judge. A rule promulgated in spring 2008 by the Nevada Supreme Court provides

a good model, stating that a “determination of indigency should be performed by an

independent board, agency, or committee, or by judges not directly involved in the case.”9

Special concerns arise when screening is performed by a non-government entity. Such

screening can reduce conflict of interest and fairness problems, cost relatively little, and allow

jurisdictions to take advantage of the expertise and specialized knowledge of dedicated

screeners. However, jurisdictions using third party screening must ensure that counsel is

appointed in a timely manner, that screeners do their job fairly and accurately, and that

screeners and are not motivated by financial or other incentives to deny counsel to eligible

people.

8 See Ohio Code § 120.03(B)(1) (requiring the Ohio public defender commission to issue financial eligibility rules for

the conduct of county-run indigent defense systems); Ohio Admin. Code § 120-1-03. 9 In the Matter Concerning the Review of Issues Concerning Representation of Indigent Defendants in Criminal and

Juvenile Delinquency Cases, ADKT No. 411 (Nev. Jan. 4, 2008), available at http://www.nvsupremecourt.us/documents/orders/ADKT411Order.pdf. The order is in effect in two counties, and has been stayed in all other counties. In the Matter Concerning the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases, ADKT No. 411 (Nev. Mar. 21, 2008), available at http://www.nvsupremecourt.us/documents/orders/ADKT411.order.pdf.

http://www.nvsupremecourt.us/documents/orders/ADKT411Order.pdf

http://www.nvsupremecourt.us/documents/orders/ADKT411.order.pdf



a. Do not allow prosecuting attorneys to screen.

In some jurisdictions, a defendant’s first encounter is with the prosecuting attorney, and the

defendant receives counsel only if the prosecutor determines that counsel is necessary or that

a plea bargain cannot be worked out.10 In other jurisdictions, the prosecutor does not conduct

the initial screening, but is free to challenge a determination of financial eligibility.11

But when prosecutors are involved in screening, a substantial risk arises that they will threaten

to deny or remove the defendant’s counsel as a means of persuading defendants to plead

guilty. Moreover, prosecutors who screen defendants risk violating both the American Bar

Association (ABA) Model Rules of Professional Conduct, which bar attorneys from giving legal

advice to an opposing party,12 and the ABA Standards for Criminal Justice, which bar

prosecutors from communicating with defendants who have not waived their right to counsel.13

Beyond any problems created by actual improper conduct, the involvement of prosecutors in

screening creates an appearance of unfairness that undermines the justice system. Simply put,

prosecutors should not screen.

b. Do not allow individual defenders and public defender programs to screen

their own clients.

Conflict of interest concerns, confidentiality rules, and harm to the attorney-client relationship

all caution against screening by either the defender or the public defender program that

represents a particular client. As a practical matter, many public defender programs do screen

their own clients, but as an ethical matter, they should not. If a defender program must screen,

it should institute procedural protections, such as ensuring that the individual defender

assigned to the case does not assess eligibility.14

The ABA Model Rules of Professional Conduct state that a conflict of interest exists if “there is a

significant risk that the representation of one or more clients will be materially limited by a

10

American Bar Ass’n, Gideon’s Broken Promise: America’s Continuing Quest For Equal Justice 23-25 (2004). 11

See, e.g., Wis. Stat. Ann. 977.06(4) (“A circuit court . . . shall review any indigency determination upon the motion of the district attorney.”). 12

American Bar Ass’n, Model Rules of Prof’l Conduct, R. 4.3 (2004) (“The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client”). 13

American Bar Ass’n, Criminal Justice Standards: Prosecution Function, Standards 3-3.10, 3-4.1 (3d ed. 1993). 14

See Nat’l Legal Aid and Defender Ass’n, Standards for the Administration of Assigned Counsel Systems, Standard 2.3(b) (“Individual assigned counsel shall not have responsibility for determining initial or continuing eligibility of clients.”) (1986).



personal interest of the lawyer.”15 The comments to that rule state that “the lawyer’s own

interests should not be permitted to have an adverse effect on representation of a client.”16

Defenders’ personal interests come into play in several ways when they are asked to screen

their own clients. For example, in order to provide adequate representation to their clients,

public defenders must maintain manageable caseloads.17 For salaried defenders, and

defenders with a contract to represent all defendants in a given geographic area, this may

create an incentive to conclude that potential clients are ineligible for representation. Thus, an

assistant public defender in Schuyler County, New York, told investigators from the NAACP

Legal Defense and Education Fund “that he uses eligibility requirements to limit the number of

clients he will represent.”18 Defenders may also have an incentive to reject cases that are time-

intensive, controversial, or undesirable in some other way. The Schuyler County defender

exemplifies this risk, too – he reported “telling eligible defendants that if they are willing to

work out a deal with the DA that day, he will represent them.”19

Even when a defender lacks such incentives, or is careful not to allow personal interest to sway the eligibility determination, the appearance of conflict can fatally undermine the attorney-client relationship.20

c. Do not allow the presiding judge to screen, although screening by other

judges or court employees is a good option.

According to the ABA Model Code of Judicial Conduct, a judge should uphold “the integrity and

independence of the judiciary” and “avoid impropriety and the appearance of impropriety” in

all activities.21 Screening by presiding judges might lead to the violation of these precepts in a

variety of ways. Presiding judges may use eligibility determinations as leverage over

defendants to induce plea bargaining. They may also assign or refuse to assign counsel

depending on which outcome they believe will move their dockets more quickly, or learn

information during screening that might affect their judgment regarding a case.

15

American Bar Ass’n, Model Rules of Prof’l Conduct, R. 1.7(a)(2). 16

Id. at R. 1.7, comment 10. 17

American Bar Association, Formal Op. 06-441 (2006). 18

NAACP Legal Def. & Educ. Fund, Inc., The Status of Indigent Defense in Schuyler County 15 (2004). 19

Id. 20

The need to avoid even the potential for a perceived conflict of interest is heightened in the public defense context. Public defenders’ clients do not get to choose their attorneys, so they may have stronger than usual concerns about trust and loyalty than defendants who can retain the lawyer of their choice. When a public defender conducts eligibility screening, client concern is likely to increase. 21

American Bar Ass’n, Model Code of Judicial Conduct, Canons 1, 2 (2004).



All of these concerns can be avoided, or at least minimized, by relying on a judge other than the

presiding judge, or on other court personnel, to conduct the screening. In Florida, for example,

judges are involved in screening only when a clerk finds a defendant ineligible for services.22

Alternatively, a clerk of the court, another court employee, or a third party can gather

information for the screening process, and a judge (other than the presiding judge) can become

involved in the process only when making final eligibility decisions.

Care must be taken, however, to ensure that a judicial screener does not have a financial

incentive to deny counsel. Such an incentive might be present in states where public defenders

compete for funding with the courts themselves. The generally insufficient amount of funds

allocated for public defenders and for court operations might provoke conflict over which

function should take precedence.23 Jurisdictions must take every precaution to ensure that this

conflict over funding plays no role in decisions regarding the financial eligibility of individual

defendants. If funding for the judiciary and for public defenders is intertwined, it may be

necessary to remove responsibility for screening from the judicial branch.

4. Ensure that counsel is provided to those unable to afford it.

The essential criterion of successful screening is that counsel be provided to those unable to

afford it on their own. The Constitution requires states to provide lawyers “for defendants

unable to employ counsel.”24 The federal government uses this standard to determine eligibility

for defense counsel in federal cases,25 as do many states and counties.26 A number of national

22

Fla. Stat. § 27.52(4). 23

For example, in Maine, the judiciary has considered closing courthouses or curtailing the hours that they are open in order to free up funds for appointed counsel. Trevor Maxwell, State Strains to Pay Lawyers: To Cover the Court-Appointed Lawyer Program’s $1.2 Million Deficit, Maine May Limit Courts’ Hours or Close Courthouse Doors, Portland Herald, Feb. 27, 2008, p. A1. 24

Gideon, 372 U.S. at 340 (stating that the Sixth Amendment has been construed to mean that “in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived”) (citing Johnson v. Zerbst, 304 U.S. 458, 468 (1938)). 25

18 U.S.C. § 3006A(b) (requiring the appointment of counsel for those “financially unable to obtain counsel”). In fact, in statements made before the Senate Commission on the Judiciary in 1963, Attorney General Robert F. Kennedy noted that this provision “studiously avoids the term ‘indigent.’ Instead it adopts the test of financial inability to secure a necessary part of adequate representation.” Criminal Justice Act of 1963: Hearings on S.63 and S.1057 before the Senate Comm. on the Judiciary, 88th Cong., 1st Sess. 11 (1963) (statement of Robert F. Kennedy, Att’y Gen. of the United States). 26

See State v. Tymcio, 325 N.E.2d 556, 560 (Ohio 1975); State v. Dean, 471 N.W.2d 310, 314 (Wis. Ct. App. 1991) (recognizing that even if a “legislature’s indigency criteria are not met, the court can still declare the defendant indigent for purposes of appointing counsel to protect the defendant’s constitutional right to counsel”).



guidelines, and many jurisdictions, have interpreted this standard as requiring the appointment

of counsel when a defendant is unable to afford counsel without “substantial hardship.”27

All screening must ultimately be based on a comparative assessment of a defendant’s financial

resources (income, liquid assets, expenses, debt and other financial resources and obligations)

and the costs of employing counsel. As the Supreme Court has warned, defendants may be

unable to afford counsel even if they do not satisfy a particular jurisdiction’s criteria for

indigency, and if this is the case then they are constitutionally entitled to counsel.28

Unfortunately, many jurisdictions instruct screeners to assess only whether defendants are

“indigent,” which may or may not include an assessment of whether they can afford counsel.29

Jurisdictions must avoid finding individuals ineligible based on strict income or asset cut-offs, or

on assumptions about an individual’s financial situation premised only on partial information.

The Constitution bars jurisdictions from finding defendants categorically ineligible for counsel

without conducting a careful assessment of the individual’s actual financial situation.30 Factors

27

See ABA Criminal Justice Standards: Providing Defense Services, supra note 1, Standard 5-7.1 (“Counsel should be provided to persons who are financially unable to obtain adequate representation without substantial hardship.”); NLADA, Standards for Assigned Counsel Systems, supra note 14, Standard 2.3(a) (“Any person who cannot retain private counsel without substantial hardship to that person, or to his or her family, shall be eligible to receive the assistance of assigned counsel in all situations in which a constitutional, statutory or other right to counsel exists”); NLADA, Guidelines for Legal Defense Systems, supra note 1, Guidelines 1.5 (“Effective representation should be provided to anyone who is unable, without substantial financial hardship to himself or to his dependents, to obtain such representation”); In the Matter Concerning the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases, ADKT No. 411 (Nev. Jan. 4, 2008), available at http://www.nvsupremecourt.us/documents/orders/ADKT411Order.pdf (“A person will be deemed ‘indigent’ who is unable, without substantial hardship to himself or his dependents, to obtain competent, qualified legal counsel on his or her own.”). 28 In Hardy v. United States, the Court warned:

Indigence must be conceived as a relative concept. An impoverished accused is not necessarily one totally devoid of means. . . . Indigence must be defined with reference to the particular right asserted. Thus, the fact that a defendant may be able to muster enough resources, of his own or of a friend or relative, to obtain bail does not in itself establish his non-indigence for the purpose of purchasing a complete trial transcript or retaining a lawyer.

375 U.S. 277, 289 n.7 (1964) (quotation marks and citations omitted) (holding that indigent defendants are entitled to a full transcript of their trial court proceedings on their appeal as of right). See also 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 11.2(e) (1984) (“The appellate courts agree that indigency is not a synonym for ‘destitute.’ A defendant may have income and assets yet still be unable to bear the cost of an adequate defense.”). 29

See Mass. Sup. Jud. Ct. R. 3:10 (in determining eligibility, “the judge shall make one of the following three determinations: (i) the party is indigent, (ii) the party is indigent but able to contribute, or (iii) the party is not indigent.”); Tenn. S. Ct. R. 13, § 1(d)(1) (“In the following cases, . . . the court or appointing authority shall advise any party without counsel . . . that counsel will be appointed if the party is indigent and requests appointment of counsel”). 30

See Smith v. State, 155 P.3d 793, 795 (Okla. Ct. Crim. App. 2007) (“In order to insure that a defendant is not improperly denied counsel to which he or she is constitutionally entitled, the district court must make a record inquiring about the defendant’s financial status and reflecting that the defendant understands that the

http://www.nvsupremecourt.us/documents/orders/ADKT411Order.pdf



like unusual expenses or a high cost of counsel for the charges involved, or extraordinary

expenses for healthcare or other necessary items, can easily render a defendant unable to

retain counsel despite income exceeding cut-off levels. Unfortunately, some jurisdictions,

including Georgia and Ohio, retain an absolute bar on eligibility for counsel for defendants

whose income is over a particular multiple of the federal poverty guidelines.31

Nor should jurisdictions find people categorically ineligible based on speculation regarding the

individual’s financial situation. Speculation is an impermissible basis for the denial of a

constitutional right. At least one company offers to screen defendants’ financial eligibility using

“software to capture relevant financial data and perform a credit history assessment to

determine a defendant’s debt-to-income ratio and financial position relative to Federal Poverty

Guidelines.”32 This method appears to rely on credit checks to make assumptions regarding an

individual’s income, assets and debts that will determine whether a defendant is eligible for

counsel. At the very least, defendants must be given the chance to challenge these

assumptions.

This is not to say that jurisdictions cannot presume eligibility based on certain criteria. After all,

the Constitution does not bar jurisdictions from providing counsel to people who can afford it.

When it proves too expensive to engage in screening precise enough to identify every ineligible,

it may be more reasonable to rely on certain presumptions of eligibility. Some presumptions

which have proved particularly effective are discussed further in Guideline 5.

Following are some principles for jurisdictions to follow in considering whether an individual

defendant can retain counsel without substantial hardship:

a. Consider the price of retaining private counsel to handle the particular

category of case.

In determining whether someone can afford counsel, jurisdictions should take into account the

actual cost of obtaining counsel.33 Some jurisdictions do well in adhering to this principle. For

presumption of non-indigency created by the posting of bond is rebuttable and that he or she may still be entitled to court appointed counsel upon sufficient proof of indigent status.”). 31

See, e.g., Ga. House Bill 1245, § 15 (“In no case shall a person whose maximum income level exceeds 150 percent of the federal poverty level or, in the case of a juvenile, whose household income exceeds 150 percent of the federal poverty level be an indigent person or indigent defendant.”) (effective May 14, 2008); Ohio Admin. Code § 120-1-03(B) (2) (“Applicants with an income over 187.5 per cent of the federal poverty level shall be deemed not indigent”). 32

D-Med Corporation & National Association of Counties, Are Indigent Defense Costs Destroying Your Budget?, available at http://www.urbancounties.org/Content/Content-Groups/Programs_and_Projects/Financial/FSC/D-MedMarketingPiece.pdf. 33

NLADA Guidelines for Legal Defense Systems, supra note 1, Standard 1.5.

http://www.urbancounties.org/Content/Content-Groups/Programs_and_Projects/Financial/FSC/D-MedMarketingPiece.pdf

http://www.urbancounties.org/Content/Content-Groups/Programs_and_Projects/Financial/FSC/D-MedMarketingPiece.pdf



example, the cost of counsel is considered under guidelines adopted by the Indiana Public

Defender Commission.34 Similarly, Washington State’s rules provide for the court doing the

screening to “consider the anticipated length and complexity of the proceedings and the usual

and customary charges of an attorney in the community.”35

Jurisdictions should not look to the compensation paid by the court to assigned counsel as the

measure of the actual cost of counsel, because in many jurisdictions such compensation is far

below the market rate.36 In some places, the appointed counsel compensation rate is so low

that courts are unable to persuade attorneys to take cases.37 Even in jurisdictions where courts

can persuade attorneys to take cases, individual defendants may be unable, on their own, to

locate attorneys willing to accept the low appointed counsel rate. Appointed counsel can be

reasonably sure of getting paid eventually by the government, but counsel in private practice

know that a substantial proportion of their clients will fail to pay at the conclusion of the

representation, either because they are incarcerated or for some other reason.38 As a result,

attorneys tend to charge higher fees to paying clients than to government funders.39

Nevertheless, some jurisdictions do rely on assigned counsel rates when conducting

screening.40

As the National Legal Aid and Defender Association notes, in addition to attorneys’ hourly rates,

the cost of obtaining counsel includes all “costs which may be related to providing effective

representation.”41 Thus, jurisdictions should take into account the costs associated with

investigation of the case and retaining expert witnesses.42 This is the practice in Maryland,

where the financial eligibility statute states: “Need shall be measured according to the financial

34

Ind. Pub. Defender Comm’n, Standards for Indigent Defense Services in Non-Capital Cases, Standard C.2 (2006) (“The determination of eligibility for the appointment of counsel will include an estimation as to the costs of retaining private counsel.”), available at http://www.in.gov/judiciary/pdc/docs/standards/indigent-defense-non-cap.pdf. 35

Wash. Rev. Code § 10.101.020(2). 36

See American Bar Ass’n, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice 9-10 (2004); In the Matter Concerning the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases, ADKT No. 411 (Nev. Jan. 4, 2008) (directing indigence screeners to consider “local private counsel rates”). 37

American Bar Ass’n, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice 9-10 (2004). 38

Pamela S. Karlan, Contingent Fees and Criminal Cases, 93 Colum. L. Rev. 595, 599-600 (1993) (listing reasons). 39

Adam M. Gershowitz, The Invisible Pillar of Gideon, 80 Indiana L.J. 571, 589 (2005). 40

See, e.g., Ohio Admin. Code § 120-1-03(C)(1) (“A defendant may be found not indigent if the individual possesses liquid assets in excess of the assigned/appointed counsel fees paid for a case of equal seriousness in the county in which the charges are brought.”). 41 NLADA Guidelines for Legal Defense Systems, supra note 1, Standard 1.5(b). 42

Id.

http://www.in.gov/judiciary/pdc/docs/standards/indigent-defense-non-cap.pdf

http://www.in.gov/judiciary/pdc/docs/standards/indigent-defense-non-cap.pdf



ability of the person to engage and compensate competent private counsel and to provide all

other necessary expenses of representation.”43

It is also important to take into account the fact that most privately retained criminal defense

attorneys require payment of a substantial retainer fee, or even of the attorney’s full fee, up

front.44 Defendants who cannot afford to pay a substantial amount immediately, and so cannot

find a lawyer to represent them, are constitutionally entitled to receive free counsel.45

Finally, jurisdictions should survey the costs charged by private counsel to provide a defense

against the most common categories of charges.46 Screeners can then rely on those figures to

determine whether defendants actually can afford counsel in particular cases.

b. Consider unavailable to pay for counsel the income a defendant needs to pay

for living and employment expenses and to maintain financial stability.

When determining whether defendants have enough money to pay for private counsel,

jurisdictions should consider unavailable to pay for counsel the portion of the defendant’s

income that the defendant needs to pay for the expenses of daily living and to maintain

employment. These expenses generally include the costs of food, housing, clothing, medical

care, child or other dependent care, and transportation.47 Income in the form of means-tested

public assistance benefits should also be considered unavailable, because such benefits usually

provide less income than people need to survive without substantial hardship.48

43

Md. Ann. Code art. 27A, § 7(a). 44

Pamela S. Karlan, Contingent Fees and Criminal Cases, 93 Colum. L. Rev. 595, 599 (1993). 45

See Barry v. Brower, 864 F.2d 294, 299-300 (3d Cir. 1988) (holding that defendant was constitutionally entitled to appointment of counsel, despite joint equity in $80,000 house, where six attorneys each had demanded “a substantial initial cash outlay” before representing him, and “none of them [was] willing to forego an up-front payment because of his interest in his jointly held residence”); Alaska R. Crim. Proc., Rule 39.1(d)(3) (“In assessing a defendant’s ability to pay the likely cost of private representation, the court should assume that at least 50 percent of the likely fee must be paid immediately and that the total fee must be paid within four months.”). 46

See Ohio Admin. Code § 120-1-03(C)(1) (“In lieu of using the assigned/appointed counsel fee, other methods of determining fees for competent counsel may be used, including a survey of attorneys representing defendants in criminal cases”). 47

See NLADA Guidelines for Legal Defense Systems, supra note 1, Standard 1.5 (advising jurisdictions to regard as unavailable liquid assets “needed for the support of the person or his dependents and for the payment of current obligations”). 48

According to one recent study, 29% of families with incomes under 200% of the poverty level experience critical hardships, such as lack of food, medical care, housing, or basic utilities. Seventy-four percent experience serious hardships, such as worrying about having enough food, being forced to rely on inadequate medical care (such as emergency rooms) or child care. Heather Boushey et al., Economic Policy Institute, Hardships in America: The Real Story of Working Families 2, 4, 28 (2001).



Unfortunately, some jurisdictions treat as available to pay for counsel income spent on

employment-related expenses. For example, the Ohio Public Defender, in its instructions to

individuals completing an affidavit of indigency, treats income spent on child care as available

“if any adult member of the applicant’s household is unemployed and able to provide

supervision,” regardless of whether that member actually is willing to care for a child.49 The

Ohio public defender also treats the funds defendants use for auto repairs as available to pay

for counsel (although it does consider unavailable income needed by the defendant for other

commuting costs).50

Jurisdictions also should consider unavailable to pay for counsel the income needed to assure a

defendant’s financial stability. The Wisconsin State Public Defender, for example, considers

income spent on student loan payments to be unavailable.51 Likewise, the Ohio Public

Defender considers income spent on minimum monthly credit card payments to be

unavailable.52

c. Consider unavailable to pay for counsel the assets a defendant needs to pay

for living and employment expenses, and any illiquid assets that cannot be

quickly converted to cash.

In addition to available income, jurisdictions should evaluate whether a defendant has available

assets that could be used to pay for private counsel. Jurisdictions should treat as available a

defendant’s liquid assets, such as cash, bank accounts, stocks and bonds. However, just as

jurisdictions should consider unavailable all revenue used for the basic expenses of daily living

or to maintain employment, jurisdictions should consider unavailable all assets used for such

purposes, such as a defendant’s primary residence, household furnishings, and clothing, and

the car a defendant uses to get to work.53 Several states have model practices in this regard.

Wisconsin appropriately considers unavailable all assets needed “to hold a job, or to shelter,

49

Instructions for Completing Financial Disclosure/Affidavit of Indigency Form OPD-206R § IV(23) (Office of the Ohio Pub. Defender, effective Sept. 29, 2005), available at http://opd.ohio.gov/reimb/reim_Aug_26_2005_memo.pdf; Ohio Admin. Code § 120-1-03(K). 50

Id. at § IV(24). 51

Wis. Admin. Code § PD 3.03(2). 52

Ohio Instructions for Completing Financial Disclosure/Affidavit of Indigency Form § VII(51), available at http://www.lcmunicipalcourt.com/CmsData/Site/Documents/FinancialDisclosureForm_AffidavitofIndigency.pdf. 53 See NLADA Guidelines for Legal Defense Systems, supra note 1, Standard 1.5(a).

http://opd.ohio.gov/reimb/reim_Aug_26_2005_memo.pdf

http://www.lcmunicipalcourt.com/CmsData/Site/Documents/FinancialDisclosureForm_AffidavitofIndigency.pdf

http://www.lcmunicipalcourt.com/CmsData/Site/Documents/FinancialDisclosureForm_AffidavitofIndigency.pdf



clothe and care for the person and the person’s immediate family.”54 Massachusetts likewise

considers unavailable “[a]ny motor vehicle necessary to maintain employment.”55

Because counsel must be appointed quickly, jurisdictions should also consider unavailable all

assets that cannot be converted to cash within days after an arrest.56 The Constitution provides

that the right to counsel attaches at the first appearance before a judicial officer, prior to such

critical events as plea negotiations, and the entry of a guilty plea.57 National standards require

an appointment as soon as possible after an individual is incarcerated.58 And aside from any

constitutional imperatives, early appointment also constitutes good financial policy for

jurisdictions. For example, once appointed, an attorney can advocate for bail, which, if granted,

may enable the government to avoid the costs associated with jailing the individual.59 For

these reasons, many jurisdictions consider property to be unavailable if it cannot be “readily” or

“reasonably” converted to cash.60 In applying either standard, the decisionmaker must use as

the touchstone whether the individual can convert the asset to cash in time to obtain counsel in

time for critical pre-trial proceedings.

Unfortunately, though, some state and local screening practices explicitly require screeners to

view the non-liquid assets of potential clients as available to pay for counsel, without regard to

how difficult or time consuming it would be to convert them to cash, and often without regard

to whether the client needs the assets to live or work. Examples include:

54

Wis. Stat. § 977.07(2). 55

Mass. Sup. Jud. Ct. R. 3:10, § 1(h). 56

See NLADA Guidelines for Legal Defense Systems, supra note 1, Standard 1.5(a); Barry v. Brower, 864 F.2d 294, 299-300 (3d Cir. 1988) (“The Constitution requires states to meet a ‘present’ need for counsel. If by their nature an accused’s assets cannot be timely reduced to cash and cash is required, the ‘present’ financial inability to obtain counsel which defines indigence for Sixth Amendment purposes appears.”). Whether jurisdictions can and should consider some portion of such assets available to reimburse the government for the cost of appointing counsel is a separate question. Reimbursement and co-pays are beyond the scope of this report. 57 Rothgery v. Gillespie Country, 128 S. Ct.2578, 2583 (2008); American Bar Ass’n, Gideon’s Broken Promise:

America’s Continuing Quest For Equal Justice 22 (2008). 58

Id. 59

The costs of incarcerating pretrial detainees include the daily cost of housing people in prison, and the inability of incarcerated people to work and pay income taxes or child support. NAACP Legal Defense & Educ. Fund, Inc., Assembly Line Justice: Mississippi’s Indigent Defense Crisis 20 (2003), available at http://www.abanet.org/legalservices/down-loads/sclaid/indigentdefense/ms-assemblylinejustice.pdf. 60

See Mass. Sup. Jud. Ct. R. 3:10, § 1(h) (stating that the defendant’s liquid assets shall be defined as “[c]ash, savings accounts, bank accounts, stocks, bonds, certificates of deposit, equity in real estate, and equity in a motor vehicle or in other tangible property; provided that any equity in real or personal property is reasonably convertible to cash”); Wis. Stat. § 977.07(2) (instructing screeners to consider any assets “which can be converted to cash within a reasonable period of time”).

http://www.abanet.org/legalservices/down-loads/sclaid/indigentdefense/ms-assemblylinejustice.pdf



Arizona: Screeners consider as available to pay for counsel the equity in a defendant’s

primary residence and vehicle.61

Texas: In Collin County, defendants are ineligible for the appointment of counsel if they

own a home or have more than $2,500 in assets (excluding the value of their primary

car).62

Florida: Defendants are ineligible for the appointment of counsel if they “own[ ], or

ha[ve] equity in, any intangible or tangible personal property or real property or the

expectancy of an interest in any such property having a net equity value of $2,500 or

more, excluding the value of the person’s homestead and one vehicle having a net value

not exceeding $5,000.”63

New Hampshire: Residents charged with a juvenile offense or misdemeanor offense

may be found ineligible for the appointment of counsel if they own real estate worth

more than $10,000. Those charged with a felony other than homicide are ineligible if

they own real estate worth more than $20,000.64 No exceptions are made for a primary

residence or for real estate necessary for one’s business. A person whose sole asset is

the family home could be denied free counsel, even if the home is worth only $20,000.

Before considering any liquid or illiquid assets, or even income, available to pay for private

counsel, jurisdictions should subtract the value of any debt the individual owes.65 For example,

jurisdictions should subtract the value of credit card debt and student loans.66

Moreover, defendants must never be required to assume debt that would jeopardize their

ability to pay for the “necessities of life.”67 Jurisdictions may require defendants to sell illiquid

assets, or to use those assets to secure a loan, so long as they retain enough equity and assets

to survive without substantial hardship.68 For example, a defendant could be required to sell a

particularly expensive car used for employment and buy another, cheaper one, if he or she

were able to do so in time to retain counsel. But a defendant could not be required to assume

61

We learned this from a public defender who responded to the questionnaire described supra note 7. 62 Ed Housewright, Collin Cuts Indigent Defense Costs, Raises Legal Concern, Dallas Morning News, Aug. 4, 2007, at

A1. 63

Fla. Stat. § 27.52. 64

71 N.H. Code Admin. R. Adm 1003.02(f)(1)(b)-(c). 65

See Official Committee of Disputed Litigation Creditors v. McDonald, 42 B.R. 981, 987 (D. Tex. 1984) (“Numerous courts have noted that a consideration of the accused’s debt situation is appropriate in determining his eligibility for appointed counsel.”). 66

See, e.g., La. Rev. Stat. 15:175B(1) (listing “outstanding obligations” as a factor for screeners to consider). 67

Whitehead v. State, 130 S.W.2d 866, 878 (Tex. Crim. App. 2004). 68

Michigan, for example, looks at the “availability and convertibility, without undue financial hardship to the defendant and the defendant’s dependents, of any personal or real property owned.” Mich. R. Crim. Proc., Rule 6.005(B)(4).



a home equity loan for such a large amount that the defendant would risk losing the home, or

be unable to afford another home if the first home were sold. Nor can a defendant be required

to assume debt that the individual is unable to pay back without substantial hardship.69

Finally, jurisdictions may examine whether an asset has been conveyed, or debt has been

incurred, solely to render the individual eligible for the appointment of counsel.70

d. Do not deny counsel because a defendant has made bail.

Jurisdictions should not deny counsel because a defendant or someone else has posted a bond

to allow him to make bail.71 The ability to post bond does not by itself establish an individual’s

ability to afford the expense of retaining private counsel. Consequently, jurisdictions that deny

counsel to individuals who post bond risk denying counsel to individuals who are

constitutionally entitled to receive counsel.72 Moreover, denying counsel to those who post

bond encourages people who can afford either bail or private counsel, but not both, to avoid

posting bond, and therefore to remain in jail at county and taxpayer expense. It also makes

those defendants less able to participate in their defense, which can result in unnecessarily long

sentences and in avoidable appeals – both of which increase the costs to taxpayers.

For these reasons, many jurisdictions, including Washington State73 and Ohio,74 explicitly inform

screeners that the ability to post bond should not bar the appointment of counsel. However,

some jurisdictions do treat posting of a bond by the defendant or by a family member as

evidence that the defendant possesses additional resources.75 For example, in Shelby County,

Tennessee, the Uniform Affidavit of Indigency Form asks whether a client or family member is

69

See Alaska R. Crim. Pro., Rule 39.1(c)(6) (“In assessing available credit, the court shall consider only the amount the defendant can realistically afford to repay.”). 70

See Minn. Stat. § 611.17(b)(3) (instructing screeners to examine “whether the transfer of an asset is voidable as a fraudulent conveyance”). 71

See ABA Criminal Justice Standards: Providing Defense Services, supra note 1, Standard 5-7.1 (“Counsel should not be denied because . . . bond has been or can be posted.”); NLADA Guidelines for Legal Defense Systems, supra note 1, Standard 1.5(a); Elliott v. District Court of Denver, 402 P.2d 65, 66 (Colo. 1965); People v. Eggers, 188 N.E.2d 30, 32 (Ill. 1963). 72

See Ramirez v. State, 779 So. 2d 364, 365 (Fla. Dist. Ct. App. 2000) (holding that a trial court violated the Constitution when it denied appointment of counsel to a defendant solely because his mother had posted a bond of more than $5,000). See also 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 11.2(e) (1984) (stating that “the defendant cannot be forced to relinquish one constitutional right in order to obtain the other”). 73

Wash. Rev. Code § 10.101.010(4) (providing that “available funds” should be calculated “after provision is made for bail obligations”). 74

Ohio Rev. Code § 120.03(B)(1) (“Release on bail shall not prevent a person from being determined to be indigent.”); Ohio Admin. Code § 120-1-03(C)(3). 75

See Mo. Rev. Stat. § 600.086(1).



able to post bond,76 and one Tennessee public defender told us that judges in his county will

actually incarcerate defendants who have posted bond but not hired an attorney. In Wisconsin,

the State Public Defender considers “available assets” to include “[a]ny money belonging to the

person and expended to post bond to obtain release regarding the current alleged offense.”77

In Florida, when defendants seek review of a finding that they are not indigent, there is a

presumption against eligibility if “the applicant has been released on bail in an amount of

$5,000 or more.”78 Such requirements serve neither the Constitution nor public policy.

e. Do not deny counsel based on the income or assets of the defendant’s friends

and family.

Screeners should consider unavailable the income and assets of family members or friends

when those resources are not under the direct control of the defendant and therefore not

actually available to the defendant.79 The right to counsel belongs to the defendant, and the

decision whether to retain counsel cannot be left to a third party. Accordingly, some

jurisdictions appropriately bar consideration of the resources of friends or relatives.80

76

Shelby County, Tenn., Uniform Affidavit of Indigency, Question 11, available at http://co4.shelbycountytn.gov/court_clerks/criminal_court/FORMS/UnifAffidavitIndig%20CC7-87(a-b).pdf. Likewise, Tennessee Code Annotated § 40-14-202(c)(6) states that when making a determination of indigency, the court shall take into account “[t]he amount of the appearance or appeal bond, whether the party has been able to obtain release by making bond, and, if the party obtained release by making bond, the amount of money paid and the source of the money.” 77

Wis. Admin. Code § PD 3.03(1)(b). 78

Fla. Stat. § 27.52(4)(a)(1). See also Ramirez, 779 So. 2d at 365 (interpreting this provision as creating a presumption against eligibility, but refusing to deny counsel solely on the basis that the defendant has posted bail). 79

See Dubose v. State, 662 So.2d 1189, 1191 (Ala. 1995); Knapp v. Hardy, 523 P.2d 1308, 1311 (Ariz. 1974); Roberts v. State, 438 S.E.2d 905, 906-07 (Ga. 1994); Schmidt v. Uhlenhopp, 140 N.W.2d 118, 122 (Iowa 1966); Tinsley v. Commonwealth, 185 S.W. 668, 670, 674 (Ky. Ct. App. 2006); Baldwin v. State, 444 A.2d 1058, 1067-68 (Md. Ct. Spec. App. 1982). See also ABA Criminal Justice Standards: Providing Defense Services, supra note 1, Standard 5-7.1 (“Counsel should not be denied because . . . friends or relatives have resources to retain counsel.”); N.Y. State Bar Ass’n, Standards for Providing Mandated Representation, Standard C-2 (2005) (“Mandated representation shall not be denied because . . . friends or relatives have resources to retain counsel.”), available at http://www.nysba.org/AM/Template.cfm?Section=Substantive_Reports&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=2726. 80

In Alabama, the state supreme court has agreed with the holding of the state court of criminal appeals that “the assets of friends and relatives, not legally responsible for the defendant, are not included within the [statutory] definition of ‘assets.’” Dubose, 662 So.2d at 1191 (citing Russaw v. State, 572 So.2d 1288 (Ala.Cr.App.1990)). In Ohio, “[n]o applicant shall be denied counsel based on the financial status of a member of the client’s household when that household member has no legal duty to support the applicant, or when that household member refuses to provide or pay for counsel.” Ohio Public Defender, Standards and Guidelines for Appointed Counsel Reimbursement, State Maximum Fee Schedule for Appointed Counsel Reimbursement, County Public Defender Office Reimbursement Standards 2 (2000). Moreover, “no child shall be denied counsel solely because the child’s parents or guardians are unwilling to disclose their financial status or to provide or pay for counsel.” Id. See also Ohio Admin. Code § 120-1-03(C)(4) (“Counsel shall not be denied solely because an applicant’s friends or relatives

http://co4.shelbycountytn.gov/court_clerks/criminal_court/FORMS/UnifAffidavitIndig%20CC7-87(a-b).pdf

http://www.nysba.org/AM/Template.cfm?Section=Substantive_Reports&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=2726




In some cases, it may be acceptable to treat certain third parties’ resources as available to the

defendant – as in jurisdictions where spouses are liable as a matter of law for each other’s

criminal defense costs, or parents are liable for the costs of their minor children’s criminal

defense.81 Thus, in Midland County, Texas, “[a]ny resources from friends or family, except

spousal income available to a defendant, may not be considered” available for the costs of

defense.82 However, because spouses and parents may be reluctant to pay legal costs, and

because it may take time for defendants to enforce legal obligations establishing their right to

this support, the better practice is for jurisdictions to provide free counsel to defendants and

seek reimbursement from liable spouses or parents afterward.

Unfortunately, many jurisdictions consider assets or income possessed by a family member to

be available to pay the costs of retaining private counsel, regardless of whether such family

members are liable as a matter of law for such criminal defense costs. Virginia takes into

account “regular support from an absent family member,” as well as “the income, assets, and

expenses of the spouse, if any, who is a member of the accused’s household, . . . unless the

spouse was the victim of the offense or offenses allegedly committed by the accused.”83 And a

public defender from Hall County, Nebraska, informed us that no attorney is appointed in that

county if the spouse is found capable of providing for the family.

f. Err on the side of providing counsel, and avoid overly stringent screening

criteria that chill the exercise of the right to counsel.

Jurisdictions should avoid imposing requirements that discourage qualified individuals from

exercising their right to counsel. One common barrier is the requirement that individuals prove

they have made efforts to secure private counsel. In Tennessee, for example, the state’s

Affidavit of Indigency Form asks defendants to provide the names and contact information of

those private attorneys who have refused to represent them.84 Similarly, New Jersey considers,

have resources adequate to retain counsel.”). The federal government’s practice is that “[t]he initial determination of eligibility should be made without regard to the financial ability of the person’s family, unless his family indicates a willingness and financial ability to retain counsel promptly”). Administrative Office of the U.S. Courts, Guide to Judiciary Policies and Procedures, ch. 2, § 2.06 (2005). 81

See United States v. O’Neill, 478 F. Supp. 852, 854 (E.D. Pa. 1979) (holding spouse liable for legal fees for criminal defense representation under Pennsylvania common law); United States v. Connecticut, 645 F. Supp. 44, 45 (E.D. Wis. 1986) (holding spouse liable under Wisconsin marital property law); In re J.B., 603 A.2d 368, 368-69 (Vt. 1991) (noting that counsel must be provided to juvenile with parents unwilling to pay for private counsel but that state may seek reimbursement from parents). 82

Midland County, Texas, Indigent Defense Plan, § IV.B (2005), available at http://www.co.midland.tx.us/DCourts/318/Forms/Midland_County_Indigent_Defense_Plan_2005.pdf. 83

Va. Code Ann. § 19.2-159(B)(1), (2). 84

Tennessee Uniform Affidavit of Indigency Form (July 1, 1993) per Tenn. Sup. Ct. R. 13, available at http://www.tsc.state.tn.us/geninfo/Publications/Forms/TrialCourtForms.htm.

http://www.co.midland.tx.us/DCourts/318/Forms/Midland_County_Indigent_Defense_Plan_2005.pdf

http://www.tsc.state.tn.us/geninfo/Publications/Forms/TrialCourtForms.htm



“[w]here appropriate, the ability of the defendant to demonstrate convincingly that he has

consulted at least three private attorneys, none of whom would accept the case for a fee within

his ability to pay.”85 While this is one way for individuals to prove that they cannot afford

counsel, delaying the appointment of counsel until people have contacted and been denied by

multiple attorneys is constitutionally unacceptable.86 Reaching out to multiple attorneys may

cause particularly long delays for individuals who are incarcerated.

Jurisdictions also should not impose excessive expense reporting requirements that discourage

eligible defendants from exercising the right to counsel. For example, one public defender

informed us that Tipton County, Tennessee asks defendants to state all their expenses for the

last six months and those they expect to incur over the next six months. The defender

observed that it is nearly impossible to complete such a worksheet accurately.

Nor should jurisdictions impose harsh punishment on defendants for unintentional or minor

errors in describing their income and assets. Such punishment may dissuade individuals from

exercising their right to counsel, for fear that an innocent error will lead to a large penalty. In

Massachusetts, for example, the Governor’s fiscal year 2005 budget assumed that the

Committee for Public Counsel Services (CPCS), which oversees the provision of defense services

to people eligible for such services, “will collect three million dollars . . . by contracting with

collection lawyers to sue any client who ‘materially underestimates or misrepresents his

income or assets or ability to pay to qualify for legal representation intended for destitute,

indigent or marginally indigent persons[.]’”87 According to a CPCS newsletter, an unintentional

misstatement could expose an individual defendant to suit for the estimated value of the

lawyer services received:

[T]he allegedly careless or fraudulent client would be sued, not for the $150 or

$300 which he arguably should have paid – but for the $5,000[,] $7,500, or

$10,000, which is defined as the ‘fair market value of attorney services[.]’ This

wild inflation – five thousand dollars is twenty-five times the average cost of

legal representation for a District Court case – is designed to give collection

outfits an incentive to participate in this scheme.88

85

N.J. Rev. Stat. § 2A:158A-14(g). 86

See Alan J. Tomkins & Elizabeth Neeley, Preliminary Evaluation of the Lancaster County Indigency Screener Project 17 (2003) (“If the defendant must search for private counsel in order to show the court that counsel cannot be arranged with the funds available to the defendant, it delays justice.”), available at http://ppc.unl.edu/publications/documents/indigency_final_report.pdf. 87

Chief Counsel’s Message, CPCS Children and Family Law Newsletter (Comm. For Public Counsel Servs., Boston, Mass.) Winter 2004, at 3, available at http://www.mass.gov/cpcs/newsletters/Winter_2004_Newsletter.pdf. 88

Id. at 4. See also Mass. Gen. L. 211D, § 2 1/2(e) (“If the court finds that a person has materially misrepresented or omitted information concerning his property or assets for purposes of determining indigency, and that such

http://ppc.unl.edu/publications/documents/indigency_final_report.pdf

http://www.mass.gov/cpcs/newsletters/Winter_2004_Newsletter.pdf



Overzealous enforcement is unlikely to result in significant cost savings for jurisdictions,

particularly when the cost of ensuing court proceedings is factored in. It is likely, however, to

result in the waiver of the right to counsel by eligible defendants.

In contrast, the eligibility rules in Ohio, where “the pivotal issue in determining indigency is not

whether the applicant ought to be able to employ counsel but whether the applicant is, in fact,

able to do so,”89 do a good job of reminding screeners not to get excessively caught up in the

details of a potential client’s finances. The rules also warn screeners that “[t]he procedure

whereby it is determined whether or not a person is entitled to have publicly provided counsel

shall not deter a person from exercising any constitutional, statutory, or procedural right,”90

and instruct screeners not to apply the eligibility rules with such “stringency . . . as may cause a

person to waive representation of counsel rather than incur the expense of retained counsel.”91

In North Dakota, similar rules remind screeners that “[c]lose questions regarding defendant’s

indigency should be resolved in favor of eligibility” and that an effort should be made to ensure

early appointment of counsel.92 Such rules should serve as a model for other states seeking to

reform their screening procedures.

Finally, jurisdictions should avoid screening regimes that would cost more than the jurisdiction

might save by denying counsel to those few ineligible people whom such regimes would

identify. For example, a report found that in Lancaster County, Nebraska, a court’s reliance on

a staffer to verify the information provided by defendants cost $9 per defendant, but did not

produce greater honesty from defendants and did not uncover financial information that would

make the difference between eligibility and ineligibility.93 The justification for such a measure is

clearly tenuous, at best.

5. Streamline screening to speed up the process and save money.

In practice, it is not necessary to engage in a time-consuming eligibility assessment for each

defendant, because there are shortcuts that jurisdictions can and should take. First,

jurisdictions can appropriately presume eligibility for persons whose income is beneath the

level defined as poor by the federal poverty guidelines. Second, jurisdictions can use other

person does not meet the definition of indigency, the court shall immediately terminate any assignment or appointment of counsel made under chapter 211D and shall assess costs of not less than $500 against such person.”). 89 Ohio Admin. Code § 120-1-03(A). 90

97 Id. § 120-1-03(H). 91

98 Id. 92

North Dakota Commission on Legal Counsel for Indigents, Procedures to Determine Eligibility for Appointment of Indigent Defense, § III(1), (2) (2006). 93

Tomkins & Neeley, supra note 93 at i, 23-24.



indicators strongly associated with an inability to pay for private counsel to judge eligibility for

counsel, such as a defendant’s receipt of needs-based public benefits, inability to post bond,

residence in a mental health facility, and residence in a correctional institution.

a. Use a multiple of the federal poverty guidelines to create a presumption of

eligibility.

The federal poverty guidelines provide a convenient shortcut for quickly determining that some

defendants are eligible for counsel, obviating the need to screen them further.94 Given the

poverty of the vast majority of the prospective client population, most defendants can quickly

and appropriately be deemed eligible simply because their income is beneath the level defined

as poor by the federal poverty guidelines. These guidelines are based on the cost of food and

other essentials for families of different sizes.95 The guidelines set the poverty level extremely

low, making it likely that even people with incomes exceeding the guidelines by 100% will

spend their entire incomes on basic necessities, so that it would be impossible for them to

afford counsel without substantial hardship.96 The best practice – which is followed in many

jurisdictions – is to use a multiple of the guidelines in determining eligibility.97 Jurisdictions with

particularly high costs of counsel or of living should use even higher multiples.

b. Presume eligibility when an individual receives need-based public benefits,

cannot post bond, or resides in a correctional or mental health facility.

In addition to presuming eligibility for individuals whose income falls beneath a multiple of

levels established by the federal poverty guidelines, jurisdictions can save money and time by

presuming eligibility for people who receive need-based public benefits (such as Food Stamps,

Temporary Assistance for Needy Families, Medicaid, disability benefits, or public housing), who

cannot post bond, or who reside in mental health facilities or correctional institutions.98

94 Section 673(2) of the Omnibus Budget Reconciliation Act of 1981 (codified at 42 U.S.C. § 9902(2)) requires the

Secretary of the Department of Health and Human Services to update the poverty guidelines annually. The 2008 Federal Poverty Guidelines are available at http://aspe.hhs.gov/POVERTY/08poverty.shtml. 95

John Iceland, Experimental Poverty Measures: Summary of a Workshop 3 (2005). 96

See note 55 and accompanying text. See also Adam M. Gershowitz, The Invisible Pillar of Gideon, 80 Indiana L.J. 571, 601-03 (2005). 97

See, e.g., Fla. Stat. § 27.52(2)(a) (defendant presumptively eligible if income is equal to or below 200% of the federal poverty guidelines); In the Matter Concerning the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases, ADKT No. 411 (Nev. Jan. 4, 2008) (treating as presumptively eligible defendant earning less than 200% of the federal poverty guidelines); Wash. Rev. Code § 10.101.010(1)(c) (defendant eligible if income is 125% or less of federal poverty guidelines). 98

See ABA Criminal Justice Standards: Providing Defense Services, supra note 1, Standard 5-7.1 & Commentary (stating that eligibility for welfare or public assistance should be used to indicate “presumptive eligibility”).

http://aspe.hhs.gov/POVERTY/08poverty.shtml



Many jurisdictions already presume defendants to be eligible for free counsel when they

receive certain need-based public benefits. For example, in Louisiana defendants are

presumptively deemed eligible if they receive public assistance, such as Food Stamps,

Temporary Assistance for Needy Families, Medicaid, Disability Insurance,” or “reside[ ] in public

housing.”99 In Washington State, people are deemed eligible if they receive “[t]emporary

assistance for needy families, general assistance, poverty-related veterans’ benefits, food

stamps . . . refugee resettlement benefits, medicaid, or supplemental security income.”100

Jurisdictions should also presume that defendants who are unable to post bond are eligible for

appointment of counsel. Even though, as previously discussed, the ability to post bond does

not establish that an individual can afford private counsel, the inability to post bond may be

equated with indigence. After all, the advantages of making bond include regaining freedom,

the capacity to continue employment, and an ability to help with one’s own defense.101 Thus, a

public defender in King County, Washington, advised us that clients in that jurisdiction who

remain in custody are presumed to be indigent because the county assumes that they would

have posted bond to regain their freedom if they could afford to do so.

Because the vast majority of people incarcerated in a correctional institution are indigent,102

jurisdictions can save time and money by presuming eligibility for these individuals, as well.

Likewise, jurisdictions should consider providing counsel automatically to all defendants housed

in a mental health facility. Louisiana and Nevada presume eligibility in both instances,103 while

99

La. Rev. Stat. Ann. § 15:175(A)(1)(b). 100

Wash. Rev. Code § 10.101.010(1)(a). See also In the Matter Concerning the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases, ADKT No. 411 (Nev. Jan. 4, 2008) (presuming eligibility if defendant receives “public assistance, such as Food Stamps, Temporary Assistance to Needy Families, Medicaid, Disability Insurance, [or] reside in public housing”); N.M. Rules Ann., Form 9-403 (presuming eligibility if defendant receives “temporary assistance for needy families (TANF), general assistance (GA), supplemental security income (SSI), social security disability income (SSDI), food stamps, Medicaid, disability security income (DSI), public assisted housing or Department of Health, Case Management Services (DHMS)”); Va. Code Ann. § 19.2-159(B) (stating that “the court shall determine whether or not the accused is a current recipient of a state or federally funded public assistance program for the indigent” but providing that the presumption is rebuttable “where the court finds that a more thorough examination of the financial resources of the defendant is necessary”). 101

See Ric Simmons, Private Criminal Justice, 42 Wake Forest Law Rev. 984-85 (2007) (noting that “defendants who are incarcerated prior to trial are 35% more likely to be convicted than those who are not – if the defendant is facing a felony charge, he is 70% more likely to be convicted if he is in jail before trial and is much more likely to plead guilty”). 102

Caroline Wolf Harlow, Bureau of Justice Statistics, U.S. Dep’t of Justice, Defense Counsel in Criminal Cases 1 (2000), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/dccc.pdf. 103

La. Rev. Stat. Ann. § 15:175(A)(1)(b); In the Matter Concerning the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases, ADKT No. 411 (Nev. Jan. 4, 2008). The Nevada order is in effect in two counties, and has been stayed in all other counties. In the Matter Concerning the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases, ADKT No. 411 (Nev. Mar. 21, 2008).

http://www.ojp.usdoj.gov/bjs/pub/pdf/dccc.pdf



Washington State provides counsel to everyone involuntarily committed to a mental health

facility.104

Of course, jurisdictions should treat these presumptions as rebuttable, retaining the capacity to

deny counsel in the rare instances in which a person is able to afford counsel despite receiving

public assistance, being unable to post bond, or residing in a correctional facility or mental

health institution.

6. Ensure that required procedural protections are in place.

a. Maintain the confidentiality of information divulged during the screening

process.

For a number of reasons, the screening system should maintain the confidentiality of

information that defendants provide during the screening process.105 First, defendants must

not be forced to choose between their Sixth Amendment right to counsel and their Fifth

Amendment right not to incriminate themselves.106 Potentially incriminating information

revealed to the screener should be shielded by statute, court rules, a protective order, or by

other means. In Washington, D.C., for example, where screening is done by the Pretrial Services

Agency, a statute provides:

Any information contained in the agency’s files, presented in its report, or

divulged during the course of any hearing shall not be admissible on the issue of

guilt in any judicial proceedings, but such information may be used in . . . perjury

proceedings, and for the purposes of impeachment in any subsequent

proceeding.107

Additionally, some of the information that defendants must reveal in order to establish

eligibility for defense services may be highly personal. For example, a defendant may reveal

104

Wash. Rev. Code § 10.101.010(1)(b). 105

According to the New York State Bar Association, “Rules, regulations and procedures concerning the determination of initial eligibility and continuing eligibility for mandated representation shall be designed so as to protect the client’s privacy and constitutional rights and to not interfere with the attorney’s relationship with his or her client.” N.Y. State Bar Ass’n, Standards for Providing Mandated Representation, Standard C-4 (2005), available at http://www.nysba.org/AM/Template.cfm?Section=Substantive_Reports&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=2726. 106

United States v. Pavelko, 992 F.2d 32, 34 (3d Cir. 1993) (holding that statements made in the context of a financial eligibility determination under the Sixth Amendment cannot be used against a defendant on the issue of guilt in violation of the Fifth Amendment). See also Simmons v. United States, 390 U.S. 377, 394 (1968) (holding that defendants cannot be forced to choose between asserting their Fourth and Fifth Amendment rights because it is “intolerable that one constitutional right should have to be surrendered in order to assert another”). 107

D.C. Code § 23-1303(d).





that she is the victim of domestic violence and so is unable to rely on her husband’s income,108

receives public assistance,109 has a disability for which she receives public benefits, or has

extraordinary medical expenses. Defendants should not be forced to choose between their

right to privacy and the right to counsel.110 In addition to this constitutional consideration,

shielding information revealed to the screener is a good idea because defendants who fear that

the information they provide may be used against them are unlikely to volunteer relevant

information.111 Shielding the information can improve the accuracy and efficiency of the

screening process, and ensure that eligible people are provided with counsel.

Some jurisdictions expressly provide for confidentiality by statute or court rule. For example, in

Vermont, “[a]ny financial information furnished or disclosed . . . [during the eligibility

determination] shall be confidential and available for review only by the clerk or judicial officer

or the person submitting the financial information.”112 Vermont even provides that “[a] person

who knowingly violates [this provision] shall be fined not more than $500.00, and shall be liable

in a civil action for any damages resulting from improper disclosure.”113

Unfortunately, some other jurisdictions explicitly state that information provided to the

screener will become part of the defendant’s court file and thus, presumably, a matter of public

record.114 Some jurisdictions even require screening to be done in open court. In Tennessee,

for example, a statute provides that“[a]ll statements made by the accused seeking the

appointment of counsel shall be by sworn testimony in open court or written affidavit sworn to

before the judge.”115

108

Publicly stating that the defendant is a victim of domestic violence may place the defendant at heightened risk of abuse. See Myrna S. Raeder, People v. Simpson: Perspectives on the Implications for the Criminal Justice System, 69 S. Cal. L. Rev. 1463, 1468 n.18 (1996) (noting that one study of women murdered by their batterers found that 45 percent of the murders “were generated by the man’s rage over the actual or impending estrangement from his partner”). 109

This information is so sensitive that many federal and state laws protect its confidentiality. See 42 U.S.C. § 602(a)(1)(A)(iv) (requiring states receiving federal public assistance funds to “[t]ake . . . reasonable steps . . . to restrict the use and disclosure of information about individuals and families receiving assistance under the program”); N.Y. Soc. Serv. Law § 136 (restricting disclosure of names of welfare applicants and recipients, and deeming violation of the statute by a newspaper a misdemeanor). 110

See U.S. v. Lexin, 434 F. Supp. 2d 836, 854 (S.D. Cal. 2006) (denying news organization’s request for access to documents regarding individual’s application for appointed counsel, because “a defendant who requests appointment of counsel would necessarily be forced to choose between his constitutional right to counsel and his constitutional right to informational privacy”). 111

Id. 112

Vt. Stat. Ann., title 13, § 5236(f). 113

Id. at § 5236(g). 114

See, e.g., Va. Code Ann. § 19.2-159(C) (requiring defendants seeking appointment of counsel to execute a written financial statement which “shall be filed with and become a part of the record of such proceeding”). 115

Tenn. Code Ann. § 40-14-202(b).



If no statute, rule, or regulation exists to protect the information the defendant reveals to the

screener, then having a public defender do the screening may be the only way to protect the

confidentiality of that information.116 However, as discussed above, it is preferable not to

involve the defender handling the case in the screening process.

b. Do not re-examine eligibility determinations during the life of a case unless

there is a compelling reason to do so.

Protecting the interests of taxpayers may require that eligibility be re-examined during the life

of a case. However, jurisdictions should ensure that the potential for such reexamination does

not become a tool to punish a defendant or public defender.

For example, eligibility re-examinations should take place only at pre-determined intervals (for

example, when a case is transferred from one court to another), or upon public disclosure of

certain pre-determined types of new information (for example, the client winning the lottery).

Massachusetts takes such an approach, with a party’s eligibility amenable to review only “if

information regarding a change in financial circumstances becomes available to a probation

officer or other appropriate court employee, through the court’s verification system, or from

some other source, including the party.”117

A prosecutor should not be allowed to request an eligibility re-examination as a way to punish a

defendant for being uncooperative. Nonetheless, according to a public defender practicing in

New Hampshire, eligibility in his state sometimes is reevaluated during the life of a case solely

because the prosecution has raised the issue. Likewise, in Missouri, “[u]pon motion by either

party, the court in which the case is pending shall have authority to determine whether the

services of the public defender may be utilized by the defendant.”118

c. Allow clients to appeal a determination of ineligibility to a judge or

magistrate.

Defendants who have been determined to be ineligible for the appointment of counsel should

be accorded the right to appeal to a judge or magistrate, and should be informed of this

116

The significant risk of self-incrimination forms a basis for the NLADA’s recommendation that public defenders screen so that “[a]ny information or statements used for the determination should be considered privileged under the attorney-client relationship.” NLADA Guidelines for Legal Defense Systems, supra note 1, Standard 1.6. 117

Mass. Sup. Jud. Ct. R. 3:10, § 7(a). 118

Mo. Rev. Stat. § 600.086.



right.119 A number of states have instituted such an appeals process, either through statute or

rule, although the process varies from state to state:

Vermont: After a clerk or other judicial officer makes an initial determination regarding

eligibility, that determination is reviewed by the presiding judge of the trial court.120

Then, pursuant to statute, “the applicant, the state, or the office of the defender

general may appeal the determination to a single justice of the [state] supreme

court.”121

Massachusetts: A “party has the right to reconsideration in a formal hearing of the

findings and conclusion as to the party’s entitlement to assigned counsel.”122

Florida: Defendants found ineligible by the clerk conducting the initial screening have

the right to appeal to a judge.123 According to one public defender in Florida practicing

in Pinellas and Pasco counties, 98% of such appeals result in a determination that the

client is indigent.

Georgia: Parties denied counsel have the right to appeal their indigency

determinations.124

Unfortunately, in many states, immediate review of a trial court’s determination that an

individual is not eligible for counsel requires a defendant to pursue some form of extraordinary

appellate relief, such as a direct or “extraordinary” appeal to the state’s high court, a motion for

a “supervisory order,” or a petition for “special action.”125 Because most unrepresented

119

According to the NLADA Guidelines, “[a] decision of ineligibility which is affirmed by a judge should be reviewable by an expedited interlocutory appeal. The person should be informed of this right to appeal and if he desires to exercise it, the clerk of the court should perfect the appeal.” NLADA Guidelines for Legal Defense Systems, supra note 1, Standard 1.6. 120

Vt. Stat. Ann. § 5236(c). 121

Id. 122

Mass. Sup. Jud. Ct. R. 3:10, § 7(b); see also Fla. Stat. § 27.52(2)(e) (“The applicant may seek review of the clerk’s determination that the applicant is not indigent in the court having jurisdiction over the matter at the next scheduled hearing. If the applicant seeks review of the clerk’s determination of indigent status, the court shall make a final determination.”); Haw. Rev. Stat. § 802-4 (“Unless otherwise ordered by the court, the determination of indigency shall be made by a public defender, subject to review by the court.”). 123

Fla. Stat. § 27.52(2). 124

Georgia Standards for Determining Indigence § 4 (2006), available at http://www.gpdsc.com/cpdsystem-standards-determining_indigence.htm. 125

See State v. Wolverton, 533 N.W.2d 167, 174 (Wis. 1995) (holding that the proper way to appeal from a denial of publicly funded counsel is to seek leave to appeal to the court of appeals); State v. Gardner, 626 S.W. 2d 721, 722 (Tenn. Crim. App. 1981) (addressing issue of “whether the appellant/defendant is an indigent” via “an extraordinary appeal by permission from this Court”); People v. Power, 330 N.E.2d 857 (Ill. 1975) (granting motion for issuance of a “supervisory order” regarding trial court’s failure to determine whether defendant was indigent); Knapp v. Hardy, 523 P.2d 1308, 1390 (Ariz. 1974) (“We granted this petition for special action to review the orders of the Superior Court of Maricopa County which denied defendant association of private counsel with the public defender.”).

http://www.gpdsc.com/cpdsystem-standards-determining_indigence.htm

http://www.gpdsc.com/cpdsystem-standards-determining_indigence.htm



defendants will not know how to seek such relief, few such individuals will be able to exercise

their right to appeal, and, ultimately, their right to counsel.

CONCLUSION

The message of this report is that determining eligibility for free counsel can be guided by

simple procedures that protect the public fisc while also effectuating the Sixth Amendment.

Screening for eligibility is actually a valuable part of the justice system, preventing unnecessary

expenditures by communities on counsel for ineligible defendants and ensuring quality

representation for eligible defendants by lawyers unburdened by excessive caseloads. This

report considers constitutional requirements and policy concerns, as well as information

gathered from defenders across the country, in formulating a set of guidelines for instituting

effective screening procedures. We invite jurisdictions across the country to preserve taxpayer

revenue, while protecting constitutional rights, by taking advantage of these “best practices.”



PART C.

NLADA STANDARDS FOR THE

ADMINISTRATION OF ASSIGNED COUNSEL

SYSTEMS*

*http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Coun

sel (as downloaded May 2013). © Copyright, 2011 National Legal Aid & Defender Association, 1140 Connecticut

Ave. NW, Suite 900, Washington, DC 20036. (Phone) 202.452.0620 | (Fax) 202.872.1031 | [email protected]

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel

mailto:[email protected]



Standards for the Administration of

Assigned Counsel Systems

Contents

Introduction

Standard 1. Scope

Standard 2.1 Provision of Quality Representation

Standard 2.2 Independence from Judiciary and Funding Source

Standard 2.3 Financial Eligibility

Standard 2.4 Contribution and Recoupment

Standard 2.5 Early Representation

Standard 2.6 Duration and Continuity of Representation

Standard 2.7 Waiver Safeguards

Standard 2.8 Standby Counsel

Standard 2.9 Standards for Performance of Counsel

Standard 3.1 Establishment of Legal Representation Plan

Standard 3.1.A Assigned Counsel in All Eligible Cases

Standard 3.1.B Mixed Delivery System Including Assigned Counsel

Standard 3.1.C Assigned Counsel for Conflicts Only

Standard 3.2.1 Creation of Board

Standard 3.2.2 Functions of Board

Standard 3.3.1 Position of Administrator

Standard 3.3.2 Qualifications of Administrator

Standard 3.3.3 Employment Status and Pay of Administrator

Standard 3.3.4 Functions of Administrator

Standard 3.4 Budget and Funding

Standard 3.5.1 Insurance for Board and Administrators

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#introduction

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#one

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#twoone

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#twotwo

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#twothree

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#twofour

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#twofive

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#twosix

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#twoseven

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#twoeight

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#twonine

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threeone

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threeonea

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threeoneb

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threeonec

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threetwoone

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threetwotwo

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threethreeone

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threethreetwo

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threethreethree

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threethreefour

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threefour

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threefiveone

http://www.nlada.org/Defender/Defender_Standards/Defender_Standards_NLADA

http://www.nlada.org/Defender/Defender_Standards/Defender_Standards_ABA

http://www.nlada.org/Defender/Defender_Standards/Defender_Standards_Comp



Standard 3.5.2 Insurance for Program Attorneys

Standard 3.6 Office Space, Equipment, Supplies

Standard 4.1 Establishment and General Operation of Assigned Counsel Roster

Standard 4.1.1 Qualifications of Attorneys

Standard 4.1.2 Workloads of Attorneys

Standard 4.1.3 Publicizing the Program

Standard 4.2 Orientation

Standard 4.3.1 Entry-Level Training

Standard 4.3.2 In-Service Training

Standard 4.4 Supervision of Attorneys

Standard 4.4.1 Mentoring

Standard 4.4.2 Monitoring

Standard 4.5 Disciplinary Policies and Procedures

Standard 4.5.1 Penalties Less than Removal

Standard 4.5.2 Removal from Program Roster(s)

Standard 4.5.3 Reinstatement After Removal

Standard 4.6 Support Services

Standard 4.7.1 Assigned Counsel Fees

Standard 4.7.2 Method of Compensation

Standard 4.7.3 Payment of Expenses

Standard 4.7.4 Only Authorized Compensation

Blackletter Standards

Introduction

The National Legal Aid and Defender Association (NLADA) is a private, nonprofit, national membership organization dedicated to the provision of quality legal services to poor people in both criminal and civil cases. Since 1911, NLADA has worked to ensure that poor people have the same access to quality legal services as those who can afford to retain counsel, and since 1958 has specifically included poor persons accused of crime in that goal. Yet, access to quality legal assistance is still denied to many persons in our criminal justice system. While governments have a constitutional duty to provide counsel to poor persons charged with criminal offenses, the poor frequently receive inadequate representation from their government-supplied lawyers. In other words, there are two systems of justice: one for the poor and one for those who can afford to hire counsel.

Assigned counsel – that is, private attorneys appointed in individual cases – is the primary method for delivery of defense services in about 50% of the counties in the United States. Defense services are also provided through defender offices and

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threefivetwo

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#threesix

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourone

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fouroneone

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fouronetwo

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fouronethree

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourtwo

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourthreeone

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourthreetwo

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourfour

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourfourone

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourfourtwo

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourfive

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourfiveone

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourfivetwo

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourfivethree

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#foursix

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#foursevenone

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourseventwo

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#fourseventhree

http://www.nlada.org/Defender/Defender_Standards/Standards_For_The_Administration_Of_Assigned_Counsel?printable=yes#foursevenfour



contracts with law firms or private organizations. While there are national standards governing the delivery of defense services by defender offices and contract systems, the only standards for assigned counsel systems are those contained in general defense services standards or employed in a few local jurisdictions. In most assigned counsel jurisdictions, the absence of standards has resulted in an absence of structure, quality control, training and support services. In fact, some assigned counsel “systems” amount to no more than an ad hoc assignment of attorneys by individual judges.

It is to remedy these deficiencies – and thereby improve the quality of representation provided by assigned counsel – that NLADA is promulgating these Standards. These Standards represent what NLADA believes to be the ideal system for providing representation through assigned counsel. While financial, administrative and other considerations may prevent some jurisdictions using assigned counsel from immediately achieving this ideal, the Standards provide a model for improving representation of those who cannot afford to retain private counsel, and a goal that assigned counsel systems should work to achieve.

Standard 1. Scope

These Standards apply whenever private counsel, rather than defender offices or contracting entities are being assigned to provide representation for persons who are financially unable to retain counsel (as defined in Standard 2.3) and who are entitled to representation.

Standard 2.1. Provision of Quality Representation

(a) Provision of quality representation to all persons eligible under Standard 2.3 is the overarching purpose of these Standards, and shall inform the creation and maintenance of all Assigned Counsel Programs.

(b) Assigned counsel shall provide to their clients quality representation equivalent to that provided by a skilled, knowledgeable and conscientious criminal defense lawyer to paying clients.

(c) Assigned counsel shall provide quality representation in all relevant legal proceedings involving their clients.

Standard 2.2. Independence from Judiciary and Funding Source

(a) The Assigned Counsel Program and individual assigned counsel shall be free from political influence and shall be subject to judicial supervision only to the extent that privately retained attorneys are.

(b) The Assigned Counsel Program shall operate under and enforce a clear policy protecting the integrity of the relationship between assigned counsel and his or her client.

(c) Assigned counsel shall reject any attempts at interference with the conduct of a particular case.



Standard 2.3. Financial Eligibility

(a) Any person who cannot retain private counsel without substantial hardship to that person, or to his or her family, shall be eligible to receive the assistance of assigned counsel in all situations in which a constitutional, statutory or other right to counsel exists.

(b) Rules, regulations and procedures concerning the determination of initial eligibility and/or continuing eligibility shall not interfere with assigned counsel's independence to advocate for his or her clients on any relevant matter, including the question of their financial status. Individual assigned counsel shall not have responsibility for determining initial or continuing eligibility of clients.

(c) Rules, regulations and procedures concerning the determination of initial eligibility and/or continuing eligibility shall not require assigned counsel to make any disclosures of facts concerning his or her clients' financial status beyond those disclosures mandated by the binding ethical rules of the jurisdiction.

Standard 2.4. Contribution and Recoupment

(a) Persons eligible for representation by assigned counsel (Standard 2.3) shall not be asked to contribute toward, nor to reimburse the jurisdiction for, the cost of assigned counsel.

(b) Jurisdictions that do require payment by eligible persons of some portion of the cost of assigned counsel shall establish a procedure for determining the amount of contribution to be paid. This procedure shall be implemented prior to or early in representation by assigned counsel, and shall include a hearing on the ability of person to pay.

(c) Any payment by or on behalf of a person represented by assigned counsel toward the cost of representation shall be made to a fund or through a mechanism established for that purpose, and not directly to assigned counsel. Assigned counsel shall not be responsible for collection of payment.

(d) Payment toward the costs of representation by assigned counsel shall never be made a condition of probation or other sentence-related supervision.

Standard 2.5. Early Representation

(a) It is the responsibility of the Assigned Counsel Program, along with other components of the criminal justice system, to ensure that counsel is provided to the accused at the earliest possible stage in the proceedings.

(b) Upon request, counsel shall be appointed for persons who have not been taken into custody and who require representation for criminal proceedings.

(c) Assigned counsel shall contact their new clients as soon as possible after appointment.

Standard 2.6. Duration and Continuity of Representation



(a) The duration of representation by counsel assigned under these Standards shall be until all appropriate avenues of relief, direct and collateral, are exhausted or until counsel is replaced by subsequent or substitute counsel.

(b) There shall be continuity of representation by assigned counsel at the trial stage. There shall be continuity of representation by assigned counsel on appeal, which shall be provided by different counsel than at the trial stage, except when the best interests of the clients dictate otherwise.

Standard 2.7. Waiver Safeguards

(a) All persons eligible for representation by assigned counsel shall be informed of that right.

(b) Any person who is represented by appointed counsel and who expresses a desire to proceed pro se shall be fully informed, on the record, of the dangers of proceeding without counsel. Eligible, unrepresented persons shall receive a renewed offer of counsel at every stage of the proceedings against them.

(c) The legal representation plan shall include a designation of responsibility for ensuring that these safeguards are implemented.

Standard 2.8. Standby Counsel

(a) If a person eligible for representation by assigned counsel waives counsel on the record, in favor of self-representation, standby counsel shall be appointed.

(b) Standby counsel shall be available to advise the pro se defendant on preparation and presentation of his or her case, and shall be prepared to represent the defendant if the waiver of counsel is withdrawn at any point.

Standard 2.9. Standards for Performance of Counsel

(a)The Assigned Counsel Program shall identify, and enforce adherence to, minimum standards for the performance of counsel and shall assist counsel in meeting, and striving to exceed, those standards.

(b)Assigned counsel shall meet, and strive to exceed, minimum standards for the performance of counsel.

Standard 3.1. Establishment of Legal Representation Plan

(a)Provision of assigned counsel to eligible persons shall be made according to a written plan consistent with these Standards.

(b)Jurisdictions that rely in whole or in part upon assigned counsel for the provision of defense services shall consider whether and how to combine assigned counsel with one or more other methods of providing representation. Three alternative systems are set out in Standards 3.1.A through 3.1.C below.

Standard 3.1.A. Assigned Counsel in All Eligible Cases

Jurisdictions which have no defender office and which do not contract with any entity



to provide defense services shall establish an assigned counsel plan, consistent with these Standards, for affording quality representation to all eligible persons (Standard 2.1).

Standard 3.1.B. Mixed Delivery System Including Assigned Counsel

(a)Jurisdictions which choose to utilize a defender office and/or contracting entity in conjunction with assigned counsel to provide defense services to eligible persons shall establish a coordinated plan for delivery of defense services.

(b)The plan shall delegate to assigned counsel a substantial portion of all eligible cases, as well as those cases which the defender office and/or contracting entity cannot handle due to conflicts of interest.

(c)None of the defense entities in such a system shall be precluded from providing representation in any particular classification of case.

Standard 3.1.C. Assigned Counsel for Conflicts Only

Jurisdictions which choose to utilize a defender office and/or contracting entity as the primary method of providing defense services to eligible persons, and rely on assignment of private counsel for cases which pose a conflict of interest to the primary entity (or entities), shall establish a coordinated plan for the assignment of counsel in those conflict cases.

Standard 3.2.1. Creation of Board

(a)The Assigned Counsel Program shall be operated under the aegis of a general governing body, the Board.

(b)The majority of the members shall be attorneys but none shall be judges, prosecutors or law enforcement officials.

(c)Members shall not receive a salary but shall be reimbursed for reasonable, actual and necessary expenses.

(d)Terms of office shall be staggered.

Standard 3.2.2. Functions of Board

(a)The Board shall establish policy and exercise general supervision over the operations of the Assigned Counsel Program.

(b)The Board shall also hire an Administrator (Standard 3.3.1).

(c)The Board shall refrain from interference in the conduct of individual cases.

Standard 3.3.1. Position of Administrator

The Board shall appoint an Administrator who shall implement policy and manage the Assigned Counsel Program, except when the legal representation plan requires that the Director of the defender office also act as Administrator, and the plan provides for the independence of the Director/Administrator from the judiciary and funding source



(Standard 2.2).

Standard 3.3.2. Qualifications of Administrator

(a)The Administrator shall be an attorney licensed to practice in the jurisdiction or jurisdictions in which the Assigned Counsel Program operates. The experience of the Administrator shall include extensive work in the criminal defense field and in administration.

(b)He or she shall have a reputation for integrity and commitment to program principles.

(c)The Administrator shall be appointed on merit alone and shall be dismissed only for good cause found upon a hearing before the Board.

Standard 3.3.3. Employment Status and Pay of Administrator

(a)The office of Administrator shall be a full-time position whenever feasible; a full-time Administrator shall not engage in the private practice of law.

(b)The Administrator shall be appointed for a stated term of office and shall be compensated at a rate not less than the local presiding judge, chief prosecutor and, where applicable, the chief defender.

Standard 3.3.4. Functions of Administrator

The Administrator shall implement Program policy and manage Program operations.

Standard 3.4. Budget and Funding

(a)The Board, in consultation with the Administrator, shall submit a complete and sufficient budget to the funding authority.

(b)The funding authority has a constitutional and policy-based duty to fund the Program in a manner and in an amount consistent with provision of quality representation (Standard 2.1) and sound administration.

(c)The Administrator shall maintain records and accounts of expenditures in accordance with accepted accounting practices.

Standard 3.5.1. Insurance for Board and Administrators

(a)The Program shall insure the Board and the Administrator for all insurable risks incident to the Program to a dollar amount specified by the Board.

(b)The funding agency shall indemnify the Board and the Administrator for all liability arising from their authorized activities pursuant to the Program.

Standard 3.5.2. Insurance for Program Attorneys

All attorneys seeking appointment under the Program shall provide evidence of being adequately insured for all insurable risks to the Program caused by their representation of clients under Program auspices, to a dollar amount specified by the Program.



Standard 3.6. Office Space, Equipment, Supplies

The Program shall be provided with suitable space, equipment and supplies at appropriate locations, or with the funds necessary to obtain them.

Standard 4.1. Establishment and General Operation of Assigned Counsel Roster

(a)The Board, or at its direction the Administrator, shall categorize by levels of seriousness and difficulty the types of cases in the jurisdiction.

(b)The Board, or at its direction the Administrator, shall establish standards detailing the qualifications attorneys must have before being assigned cases at each level under paragraph (a), as described in Standard 4.1.1.

(c)The Board, or at its direction the Administrator, shall establish standards and procedures relating to attorney workload, as described in Standard 4.1.2.

(d)The Administrator shall establish a roster or rosters containing the names of attorneys who have applied to receive appointments from the Program and who have been found qualified to handle a given level of cases.

(e)The Administrator shall review all incoming cases, classify them by type and level of seriousness according to the categories established under paragraph (a), and assign them to available, qualified attorneys on the appropriate roster, in rotation. Departures from assignment by rotation of the names of available attorneys shall be made when such departure will protect the best interests of the person to be represented and may be made when efficient administration of the Program so requires.

(f)If the Board determines that the number of attorneys to be included on a roster should be limited, the Board shall establish a procedure to ensure fairness in the selection of attorneys from all qualified attorneys who apply.

Standard 4.1.1. Qualifications of Attorneys

(a)The attorney qualifications established pursuant to Standard 4.1(b) shall include criteria reflecting the experience and training required for assignment in cases of different levels of seriousness, and a requirement that attorneys have the proficiency and commitment necessary to provide the quality representation mandated by Standard 2.1.

(b)The Program may allow the substitution of equivalent experience for specific experiential requirements, but may not compromise the proficiency and commitment requirements.

(c)An attorney applying for inclusion on a Program roster, or for reclassification (Standard 4.1.(d)), shall provide to the Administrator information needed for verification of all qualifications offered in support of the application.

Standard 4.1.2. Workloads of Attorneys

(a)The Board, or at its direction the Administrator, shall develop standards relating to



caseload/workload size limits for attorneys who desire to receive appointments from the Program, and procedures through which attorneys whose workloads have become excessive can be relieved of caseload responsibilities that they cannot competently meet.

(b)The Administrator shall provide notice to attorneys eligible for assignments of the caseload/workload standards and procedures established by the Board, and of the attorneys' obligation not to accept more work than they can effectively handle.

(c)The Administrator shall keep records of assignments made to individual attorneys in a manner that allows the Administrator to avoid assigning an excessive number of cases to any attorney.

Standard 4.1.3. Publicizing the Program

The Administrator shall publicize the existence and functions of the Assigned Counsel Program to the practicing bar, to the criminal justice community, and to the public.

Standard 4.2. Orientation

The Administrator shall ensure that lawyers new to the Program receive a mandatory orientation on Program policies and procedures before they are assigned cases.

Standard 4.3.1. Entry-Level Training

(a)The Administrator shall be responsible for preparing, in accordance with Board specifications, an entry-level training program.

(b) Entry-level training shall be mandatory for all attorneys unless they come under exceptions specified by the Board, or the Administrator acting at its direction.

Standard 4.3.2. In-Service Training

(a)The Board shall establish regulations requiring attorneys to attend a specified number of training units per year in order to remain on a Program roster.

(b)The Administrator shall be responsible for preparing, in accordance with Board directives, periodic in-service training programs to provide systematic, comprehensive instruction in substantive law and courtroom skills. He or she shall also determine, upon request, whether training offered by entities other than the Program may be counted toward the training units required by the Board.

(c)The Administrator shall ensure that attorneys remaining on a Program roster have attended the number of training units required by the Board.

(d)The Board and Administrator shall encourage attorneys to participate in training sessions beyond the mandatory units.

Standard 4.4. Supervision of Attorneys

(a)The Board shall establish policies regarding supervision of assigned counsel working within the Program. These policies shall include a procedure for handling complaints



from clients and others. (b)The Administrator shall be responsible for supervision.

Standard 4.4.1. Mentoring

(a)The Board shall establish a policy with regard to the provision of mentors -- more experienced, competent attorneys -- to advise less experienced attorneys on a Program roster.

(b)Mentors shall be compensated for mentoring services according to Board specifications.

Standard 4.4.2. Monitoring

(a)The Administrator, under the direction of the Board, shall establish a system for monitoring the performance of the attorneys on the Program roster(s). Monitoring shall be done by the Administrator or his or her designee.

(b)The standard against which Program attorneys are measured shall be that of a skilled, knowledgeable and conscientious criminal defense lawyer adhering to the performance standards established under Standard 2.9.

(c)The Administrator shall publicize the criteria used in monitoring, and shall inform monitored attorneys of results upon request, upon the decision to impose penalties (Standard 4.5.1), or to seek removal (Standard 4.5.2) and otherwise in the Administrator's discretion.

(d)The Administrator shall not have access to privileged work product, and shall not invade attorney-client confidentiality.

Standard 4.5. Disciplinary Policies and Procedures

(a)The Board shall establish policies and procedures for imposition of penalties, including removal from the Program roster, on attorneys for failure to observe Program policies and rules, including failure to provide the quality representation mandated by these Standards.

(b)No attorney shall be removed from a case in which representation has already begun except with the consent of the client and in accordance with the governing ethical and judicial rules of the jurisdiction.

Standard 4.5.1. Penalties Less than Removal

The Board may permit, and the Administrator may establish, a schedule of penalties less than removal from the Program roster(s) for failure to comply with Program rules, policies, or required performance. Such penalties shall be coupled with a requirement that the attorney correct the deficiencies in question.

Standard 4.5.2. Removal from Program Roster(s)

(a)Where an attorney has failed to correct deficiencies for which penalties under Standard 4.5.1 have been imposed, or where egregious deficiencies in performance have occurred, the Administrator shall give the attorney notice, in writing, that



removal of the attorney from the roster is contemplated. Such notice shall be given within a period of time established by the Board (or as part of the legal representation plan).

(b)Where the alleged actions or inactions of the attorney involve a pattern of failing to provide competent representation to clients, or the Administrator has cause to believe that the attorney cannot provide competent representation to new clients, the Administrator may suspend assignments to the attorney immediately.

(c)After notice has been given, the Administrator (or the Board, or a Removal Committee of the Board if the Board has so directed) shall, unless the attorney consents in writing to removal, conduct a hearing to determine whether cause exists for removal of the Attorney from the Program roster(s). The decision to remove or retain the attorney shall be made in writing.

(d)Where the decision to remove is made by the Administrator or a Removal Committee, the attorney shall have the right to appeal the decision to the Board, whose decision shall be final.

(e)Where removal has been for failure to provide competent representation to one or more clients, the Administrator may seek, in court, substitution of counsel in cases already assigned to the attorney in question, if there is reason to believe competent representation is not being provided in those cases.

(f)Unless removed from pending cases by the court in which the cases are lodged, an attorney removed from the Program roster(s) shall complete work in cases to which he or she was already assigned at the time of removal, and shall be entitled to compensation in the usual manner. If substitution of counsel is granted, the Program shall compensate the attorney for work done up to the date of removal unless ordered by the court not to do so.

Standard 4.5.3. Reinstatement After Removal

(a)The Board shall establish a procedure for consideration of a removed attorney's application for reinstatement to the Program roster(s).

(b)The procedure should include a requirement that the attorney demonstrate that the deficiencies which led to removal will not be repeated.

Standard 4.6. Support Services

The Assigned Counsel Program shall ensure that the many support services necessary for the effective defense of clients are available to assigned counsel at every phase of the cases to which counsel are assigned.

Standard 4.7.1. Assigned Counsel Fees

Reasonable compensation shall be provided to assigned counsel, at a rate commensurate with that paid for other contracted government legal work (e.g. work contracted for by attorneys general, county legislatures or commissions, etc.) or with



prevailing rates for similar services performed by retained counsel in the jurisdiction.

Standard 4.7.2. Method of Compensation

(a)Attorneys shall be compensated at an hourly rate, with no distinction between rates for services performed in and outside of court.

(b)The amount of compensation sought shall be reviewed by the Administrator and approved unless there is cause to believe the amount is unwarranted.

(c)Maximum fee limits shall not be established. Where they exist, they shall be subject to exception, upon approval by the Administrator acting within guidelines established by the Board.

(d)Periodic billing and payment during the course of counsel's representation shall be provided for, at least in lengthy cases.

Standard 4.7.3. Payment of Expenses

(a)The Board shall establish policies as to expenses which will be reimbursed (including reasonable and necessary travel and long-distance and client collect telephone calls) and those which will not.

(b)Routine office expenses and out-of-pocket expenses shall be paid for by assigned counsel without reimbursement from the Program. The Administrator, with the guidance of the Board, shall approve reimbursement of extraordinary amounts which were reasonable, actual and necessary.

4.7.4. Only Authorized Compensation

Assigned counsel shall neither seek nor accept payment from a client, or from any source on behalf of the client, that is in addition to the fees and expenses authorized by the Program.



PART D.

ACCD BEST PRACTICES COMMITTEE

REPORT ON IMPLEMENTATION OF ABA

TEN PRINCIPLES IN ASSIGNED COUNSEL

SYSTEMS*

* Source: National Legal Aid & Defenders Association (NLADA), American Council of Chief Defenders, Best Practices

Committee, “Implementation of the ABA’s Ten Principles in Assigned-Counsel Systems” (Preliminary Report, September 2010), http://www.nlada.org/Defender/Defender_ACCD/DMS/Documents/1285271312.2/NLADA%20best%20prac%209-12-10mt%20final.pdf (as downloaded in May 2013).

http://www.nlada.org/Defender/Defender_ACCD/DMS/Documents/1285271312.2/NLADA%20best%20prac%209-12-10mt%20final.pdf

http://www.nlada.org/Defender/Defender_ACCD/DMS/Documents/1285271312.2/NLADA%20best%20prac%209-12-10mt%20final.pdf



Implementation of the ABA’s Ten Principles in Assigned-Counsel Systems National Legal Aid & Defenders Association (NLADA)

American Council of Chief Defenders

Best Practices Committee

Preliminary Report

The NLADA’s Best Practices Committee prepared this report to assist administrators of systems

that provide representation to indigent defendants by assigning private attorneys. The

committee recognizes the American Bar Association’s (ABA) Ten Principles of a Public Defense

Delivery System (2002) (Ten Principles) as a concise summary of best practices for indigent-

defense systems. This report discusses how these principles apply to assigned-counsel systems,

primarily by providing specific examples from several systems. The committee gathered

information primarily through a survey of NLADA members; the survey covered the topics areas

addressed in the ABA Ten Principles in the context of an assigned-counsel system. This report is

not an exhaustive study, and it does not provide qualitative comparisons of different assigned

counsel systems. By describing the challenges faced in implementing the Ten Principles in

assigned counsel systems and some of the means that have been used to meet those

challenges, we hope that this paper will provide helpful guidance for policymakers and

indigent-defense service providers.

Indigent-defense representation is generally provided by public defenders, who receive a salary

from a governmental agency, or by an assigned counsel system that provides private attorneys

to represent indigent clients. Assigned counsel systems differ significantly in their structure,

but each system has one or more of the following elements: (1) case assignments to private

attorneys as part of an organization or other system that also employs staff public defenders

(mixed system); (2) case assignments to private attorneys on a case-by-case basis made by the

court or by an assigned-counsel administrator; (3) contracts between a governmental entity

and either an attorney or an organization to provide representation in a certain number of

cases or all cases meeting certain criteria. In short, any system is considered to have an

assigned-counsel component if it assigns some or all cases to attorneys other than staff public

defenders.

This report discusses the Ten Principles in the context of four major topics: 1. Independence; 2.

Funding & Structure, Workloads, and Parity; 3. Qualifications, Training, and Accountability; and

4. Prompt Appointment, Attorney-Client Communication, and Continuity of Representation.



The committee greatly appreciates the cooperation and the information provided by

representatives of the assigned-counsel programs cited in this report. The committee

encourages representatives of other programs to share additional examples of practices that

adhere to the Ten Principles.

The Appendix provides general information about the programs discussed in the report,

including links to their websites.

1. Independence of defense function

Principle 1: Independence of assigned-counsel system

Assigned-counsel systems should have a management structure that is independent of the judicial, executive, and legislative branches of government and that promotes the delivery of skilled and zealous representation to indigent clients.

All systems1 providing indigent-defense services inevitably depend on public funding; thus,

complete independence from the executive, legislative, and judicial branches of government is

impractical (if not impossible). However, the structure of the indigent defense system can

provide a degree of independence from external influence in its operations. For example, an

oversight board comprising diverse members provides more independence than direct

appointment of the administrator or director by a single judge or political leader.

Massachusetts, San Mateo County (California), Alameda County (California), Kern County

(California), Erie County (New York), and Wisconsin are examples of jurisdictions in which such

a board governs the indigent-defense organization.

In jurisdictions where the judiciary, or other branch of government, retains complete authority

to appoint independent attorneys to indigent cases, a less-desirable but alternative solution to

independence is for representatives of the defense bar to seek a cooperative role in the

composition, administration, and management structure of the assigned-counsel system. In

the District of Columbia, the judiciary administers the assigned-counsel system, but recognizes

the benefits of consultation and advice by members of the defense bar. To this end, the

judiciary created an attorney advisory committee whose primary role is to review applications

of new panel attorneys seeking admission to the court's assigned-counsel system and to make

recommendations accordingly. Additionally, the committee has coordinated its efforts with the

courts on other significant issues pertinent to the functioning of the assigned-counsel system,

such as the development of attorney practice standards. In creating an attorney advisory

committee, the judiciary invited the participation of all defense-bar stakeholders, including the

1 “System” as used in this report refers to any mechanism for assigning private attorneys, and the term

“organization” refers to an entity established for the specific purpose of providing indigent-defense services.



D.C. Public Defender Service, the Superior Court Trial Lawyers Association, and local law school

clinics.

Board Appointed by Bar Association

San Mateo County’s Private Defender Program (PDP) is a program that assigns cases exclusively

to private attorneys. The San Mateo County Bar Association administers the program. A 14-

member board of the bar association oversees the Chief Defender and other PDP staff. PDP

oversees appointments of cases to about 115 participating attorneys.

The Alameda County Civil Court-Appointed Attorneys Program is a non-profit organization

administered by the county bar association. The association’s president appoints a committee

of attorneys to oversee the program. The Kern County Bar Association Indigent Defense

Program is also a non-profit with two committees appointed by the Bar president:

Qualifications and Oversight.

Erie County’s Assigned Counsel Program assigns cases only to private attorneys. A 21-member

Board of Directors oversees the program. The board members are attorneys, and they serve

staggered 3-year terms. The appointing authority is the Board of Directors of the Erie County

Bar Association, which generally follows the recommendations of the incumbent members of

the Assigned Counsel Program’s Board. The Administrator is an attorney appointed by the

Assigned Counsel Program’s Board.

Board Appointed by Governmental Officials

The assigned-counsel program in Massachusetts is governed by a board of 15 directors called

the Committee for Public Counsel Services (CPCS). The directors are attorneys appointed for

staggered three-year terms by the state Supreme Judicial Court. The Chief and Deputies Chief

Counsel are selected by the Committee. CPCS provides all indigent legal services in the state

courts in which there is a constitutional, statutory, or case-law based right to counsel: criminal,

post-conviction, child welfare, juvenile delinquency, mental health, sex offender registration,

sex-offender commitment, and minor seeking abortion. The program has staff attorneys as well

as private attorneys providing representation. All cases except child welfare are assigned to

attorneys by Committee staff or by Committee contractors, not by judges.

The Wisconsin Office of the State Public Defender (WSPD) is, like Massachusetts, a statewide

organization consisting of staff defenders and an assigned-counsel program. WSPD is governed

by a 9-member board, appointed by the Governor and confirmed by the state senate. Members

serve staggered three-year terms and may be re-appointed.



The Board is responsible for selection of the State Public Defender, who in turn appoints the

Deputy State Public Defender and division administrators. More than 1,000 private attorneys

are certified to accept WSPD appointments through the agency’s Assigned Counsel Division.

2. Funding & Structure, Workloads, and Parity

Principle 2: Participation of Private Bar and Defender Staff

Principle 5: Reasonable Workload/Caseload

Principle 8: Parity of Resources with Prosecution and Equal Voice

Three of the Ten Principles (listed above) focus on the indigent-defense system’s general

structure and the level of resources available. By their nature (generally dependent upon

external policymakers), these factors are often beyond the day-to-day control of the

organization’s leadership, but are instructive as benchmarks and as strategic goals for

organizational improvement.

Principle 2-Participation of Private Bar and a Defender Office

Assigned counsel systems that operate as part of mixed systems should have separate oversight structures to protect against conflicts of interest.

Assigned counsel systems should work cooperatively with public defender offices where available, to provide joint training, ensure adequate resources, and provide uniform high-quality representation to all of the jurisdiction’s clients.

Principle 2 calls for a mixed system of indigent-defense services, when the caseload is

sufficiently high, with a defender office and private-bar participation. This principle also

recommends state funding for all defense services and a statewide structure to ensure uniform

quality throughout the state.

A defender office can provide training, certification, and other support to an assigned counsel

program, in addition to assigning experienced and specialized staff to represent clients. An

assigned-counsel program can provide broad support among attorneys for indigent defense

and can provide the flexibility to assign additional cases to the private bar when the volume of

cases increases, in addition to providing counsel in cases involving conflicts of interest.

Whether a jurisdiction has a single system or separate systems providing representation, high-

quality representation for all indigent clients should be the paramount goal. Administrators

should work cooperatively and strategically to seek resources (both for public defenders and for

the private bar) and to share resources when possible (for example, by holding joint training

sessions and by making materials accessible electronically).



Mixed System within One Organization

Connecticut, Massachusetts, and Wisconsin are mixed statewide systems operating within a

single organization. In these states, the members of the private bar are certified or otherwise

selected by the defender organization, rather than by judges, thus supporting the principle of

independence in the determination of who receives case assignments (see section 1 above).

The chief administrators of these organizations, overseen by their respective boards, are

responsible for seeking sufficient resources for both programs and for ensuring an equitable

division of resources to promote quality representation for all clients.

These statewide organizations separate the staff defender program from the assigned counsel

program to avoid ethical conflicts that might otherwise arise between (for example) co-

defendants. In each organization, the assigned-counsel program is headed by a director, who is

responsible for services to the participating attorneys and for oversight of their performance.

Mixed System with Separate Organizations

Erie County maintains a mixed staff-private system in the city of Buffalo, the largest

municipality in the county. The Buffalo defender office is the primary defender in

misdemeanors and lesser felonies, while the Assigned Counsel Program is the conflict provider

in those cases and the primary defender in major felonies. In the remainder of the county, the

Assigned Counsel Program provides all indigent defense representation.

Sacramento County also has a mixed staff-private system in which the assigned counsel

program and the county public defender both handle a large volume of cases. The assigned

counsel program receives appointments in cases that would be a conflict for the public

defender and in cases that would result in an excessive workload for the public defender.

The District of Columbia is another jurisdiction with both a staff defender program and a system

of court appointments to private attorneys. The District of Columbia Public Defender Service

(PDS) plays an active role in assisting the private bar and the courts to promote quality

representation for all indigent defendants. This role is codified in a statutory directive for PDS

to provide technical assistance to the courts in administering the Criminal Justice Act.

However, unlike the other jurisdictions discussed in this section, the District Columbia relies

upon judges to appoint cases directly to private attorneys.

Principle 5-Reasonable Workload/Caseload

Assigned-counsel systems should measure attorney workload and should ensure that attorneys who accept appointments have adequate time to provide ethical and competent representation.



Principle 5 (defense counsel’s workload is controlled to permit quality representation) is often a

challenge for staff public defenders, because indigent-defense organizations are often not

provided funding for sufficient staff positions to allow for reasonable caseloads. Assigned-

counsel programs may also face this challenge. Excessive workload or caseload can result from

a contract to handle an unreasonable (or unlimited) number of cases, such as a fixed fee paid to

a single attorney or firm to handle all of a certain case type in a jurisdiction. Absent such a

contract, an excessive caseload may result from an attorney accepting an excessive number of

individual case appointments. An additional challenge in an assigned-counsel system is that the

participating attorneys often handle private-pay cases, thus reducing the amount of time

available to work on the indigent defense cases.

San Mateo County monitors workload by use of a case-weighting system that considers the

relative complexity of case types. In setting individual workload limits, the San Mateo County

program also considers the percentage of time that each panel member spends on private

cases. Verifying the private workload of each attorney may be difficult. Nonetheless, this

workload may greatly affect an attorney’s ability to handle a given volume of appointed cases.

Therefore, consideration of each attorney’s total workload, including private cases, strongly

supports the goal of Principle 5.

Other systems focus on the number of appointments made to each attorney, although they do

not measure the other workload of the participating private attorneys. Massachusetts and

Wisconsin use case-weighting systems to control workload, using the average time that

attorneys spend on a specific type of case as a measure. Erie County reviews felony

assignments weekly and other assignments monthly to ensure that individual attorney

workloads are acceptable. Sacramento County monitors attorney workload using a

management system that reviews the caseload of the individual attorney before each new

appointment.

A pattern of complaints about an attorney may indicate deficient practices related to an

excessive workload. Thus, many assigned-counsel programs not only investigate complaints,

but also keep records regarding their nature. Multiple complaints about lack of communication

or about missing deadlines may be signs that an attorney is handling too many cases. However,

because complaints inevitably occur only after the attorney has been appointed on the case or

cases in question, a complaint log should not substitute for other methods of monitoring

workload.

Principle 8-Parity of Resources and Equal Voice

Principle 8 calls for parity of resources between the defense and prosecutions and for the

indigent-defense organization to be an equal partner in the justice system. This principle



addresses compensation of assigned counsel as follows: “Assigned counsel should be paid a

reasonable fee in addition to overhead and expenses. Contracts with private attorneys for

public defense services should never be based primarily on cost; they should specify

performance requirements and the anticipated workload, provide an overflow or funding

mechanism for excess, unusual, or complex cases, and separately fund expert, investigative,

and other litigation support services.”

Parity of Resources

Assigned-counsel systems should provide reasonable compensation and access to support services to participating attorneys, so that attorneys can devote adequate time to each case and can retain experts and investigators when appropriate.

Because prosecutors are salaried employees who receive employee benefits, office space, and

other operational necessities from the county or state, it is difficult to compare the fee

schedule of an assigned-counsel program with the compensation of prosecutors. Nonetheless,

a prerequisite for parity of resources in an assigned-counsel system is a fee schedule that

compensates participating attorneys sufficiently so that they can devote adequate time to each

case.2

San Mateo County has a fee schedule that combines event-based and hourly methods of

compensation. For example, attorneys receive a base fee of $270 in misdemeanor cases, with

additional payment of $265 per day for out-of-court preparation and $125 per hour for in-court

time during a jury trial. An hourly rate applies in felony cases, ranging from $125-$165 in cases

that carry a possible sentence of life imprisonment.

Sacramento County has a fee schedule providing hourly rates that range from $60 per hour for

misdemeanors to $90 per hour for serious felonies. The schedule provides for higher rates in

two specific situations. Death penalty cases are paid at the rate of $150 per hour, and the

attorneys with specialized training in DNA issues are paid $125 per hour in cases presenting the

need for that expertise.

2 In a defender organization, the allocation of resources to the defense and the prosecution can be measured in

large part by comparing items such as salary, staff size (including support staff), technology, and equipment. However, even this type of comparison is incomplete unless readily available ancillary resources are considered, such as law enforcement agencies and crime laboratories that work closely with the prosecution. Another factor that complicates a comparison that is the workload of the prosecution and the indigent-defense system are not identical; for example, the prosecution handles cases of non-indigent defendants and, in many jurisdictions, handles non-criminal charges. Conversely, many indigent-defense systems appoint attorneys in revocation proceedings in which the adversary is department of corrections, rather than the prosecutor’s office.



In Massachusetts, private attorneys are paid an hourly amount that ranges from $50-$100,

depending on the case type. After the rates were increased to the current levels in 2005, the

program experienced a 40% increase in the number of attorneys participating. This increase

confirms that adequate compensation is essential to encourage broad participation from the

private bar. Conversely, a low rate of compensation may not be enough to pay the overhead

expenses of private attorneys who participate, thereby discouraging consistent participation by

experienced attorneys.

Connecticut has a mechanism to review compensation rates bi-annually to ensure that the

rates remain reasonable in light of inflation. Although this practice does not guarantee that

funding will be available in a given budget cycle to increase the rates, it helps with the issue of

compensation by providing a forum for regular review and reconsideration.

Connecticut, Massachusetts, Wisconsin, San Mateo County, and Sacramento County do not

have a maximum amount that an attorney may be paid in a single case. The absence of a per-

case cap is important because such a cap provides a disincentive for litigation (for example, the

attorney’s hours in preparing for a trial may result in the attorney receiving no compensation

for the time spent in trial). However, these systems maintain data regarding the billing history

of individual attorneys, and they have procedures to ensure that overall program costs are

reasonable.

Assigned counsel programs need to review attorney bills sufficiently to safeguard against billing

irregularities that could adversely impact the program’s credibility. Connecticut, Wisconsin,

and Massachusetts use an on-line billing system to review bills and to identify attorneys who

consistently submit bills substantially higher than the average for the type of case. A similar

system is under development in Erie County. Wisconsin and Erie County generally resolve

billing issues directly with the attorney, considering the unique circumstances of each case.

Sacramento County uses online billing for cases with invoices up to $1500. All other bills are

individually reviewed by administrative staff and substantively reviewed by the Director or

Deputy Director.

Access to qualified experts, investigators, and interpreters is another critical area in which

parity of resources is essential. An organization independent of the courts, such as the

organizations described in this report, offers the practical advantage that the private attorney

can apply for these services without having to reveal details of a possible defense theory.

Conversely, in a court-administered system, a private attorney may need to disclose

information about the case in support of a request for an expert or investigator.

San Mateo County and Erie County assign private investigators upon request to assist the

private attorneys. The investigators are paid $55 per hour in San Mateo County and $40 per



hour in Erie County. Attorneys may also apply to the Chief Defender or Administrator,

respectively, to hire expert witnesses, and these requests are generally granted. The attorneys

appointed by these assigned counsel programs have comparable access to these support

services as do prosecutors. Other jurisdictions have similar procedures by which private

attorneys apply to the assigned-counsel organization to hire experts, investigators, and

interpreters.

Because they are independent contractors, assigned counsel are responsible for many

resources that are provided to prosecutors by the employing governmental unit. These

resources include office space and equipment, secretarial staff, and research materials. An

assigned counsel system ordinarily cannot provide these resources directly to its participating

attorneys. However, adequate compensation increases the ability of the participating

attorneys to maintain resources comparable to those provided in the public sector. Some

programs, such as San Mateo County, Sacramento County, and Erie County, provide ancillary

services to participating attorneys, such as access to conference rooms and research tools.

Equal Voice

Assigned-counsel systems should have a voice in efforts to improve the justice system, such as designating representatives to serve on work groups within the justice system and to provide information to policymakers.

Although the “equal partner” phrase in Principle 8 could be read as merely restating the

principle of equal resources, the commentary indicates a broader interpretation: that “[p]ublic

defense should participate as an equal partner in improving the justice system.”

In addition to providing high-quality representation to their clients, indigent-defense systems

have the potential to improve the quality of the justice system through participation in work

groups at both the state and county level. Ongoing communication with policymakers can build

relationships of trust that help in the continuing challenge of obtaining resources.

Representatives of assigned-counsel systems, through their communication and their

participation in work groups, can enhance the credibility of their programs, can advocate for

resources, and can influence criminal-justice policy.

Although the specific strategies for improving the justice system inevitably vary by jurisdiction

and over time, two helpful factors are professional relationships and the reputation for

providing reliable information. Individual defense attorneys (whether staff defenders or private

bar) can work collaboratively with other justice professionals on treatment courts and other

initiatives. This type of collaboration requires participants with adversarial roles in individual

cases to work together professionally and cooperatively to improve the justice system.



In an assigned-counsel system, one barrier to having the system’s voice heard is that within the

local court system, it may be impractical to designate one of the participating private attorneys

as the defender system’s representative.3 However, the local defense bar may work through

the bar association or may form an organization to provide input and to share information on

justice issues. Furthermore, on a statewide or countywide level, the administrator of an

assigned counsel program (or a designee) can provide indigent defendants with a voice on

issues affecting criminal justice.

3. Qualifications, Training, and Accountability

Principle 6-Attorney Qualifications for Case Assignments

Principle 9-Training and Continuing Legal Education

Principle 10-Supervision and Review of Performance

Assigned-counsel systems should have procedures to review the qualifications of attorneys who wish to accept appointments, to train attorneys, and to review attorney performance.

Three of the Ten Principles (listed above) focus on ensuring that the participating attorneys

have the necessary skills to defend their clients effectively. These principles are discussed in

this section. To implement these principles, an assigned-counsel system should review

attorneys’ qualifications before approving them to receive appointments, should ensure that

participating attorneys receive ongoing training, and should regularly review attorney

performance.

Principle 6-Attorney Qualifications for Case Assignments

Principle 6 (matching case appointments to attorney qualifications) is addressed in assigned-

counsel programs through initial certification of attorneys, continuing training and education

(addressed more specifically under Principle 9, below), and review of performance (addressed

more specifically under Principle 10, below). Several programs use a certification system to

ensure that attorneys have the requisite knowledge and experience for the types of cases

assigned to them.

Wisconsin has administrative rules governing certification criteria for different case types, with

stricter criteria for homicides, other aggravated felonies, and specialized areas such as sex-

offender commitments and termination-of-parental-rights proceedings. The State Public

Defender may remove attorneys from certification lists for cause. Similarly, in Connecticut,

Massachusetts, Erie County, and Sacramento County, all private attorneys must meet specified

3 An attorney who volunteers for a courthouse work group, for example, would likely be participating in his or her

personal capacity and not as a representative of the defender system.



training and/or trial experience requirements to be certified for assignment to different types

of cases. For the most-serious cases, Massachusetts requires recertification every 5 years. Erie

County conducts a recertification review at least once every 4 years for attorneys on its felony

panel. Sacramento County also conducts periodic reviews of certification.

Principle 9-Training and Continuing Legal Education

Principle 9, regarding continuing legal education, also promotes appropriate attorney

qualifications for case assignments. Assigned-counsel programs may implement this principle in

two ways. First, the program may require specific training in criminal law and other specialized

areas in which the program provides representation. For example, Massachusetts has

specialized training requirements for private attorneys who have not tried a case to a jury

within the preceding year (or 5 cases within the preceding 5 years). Connecticut,

Massachusetts, Wisconsin, and Erie County require a minimum number of annual training hours

in criminal law or another relevant area of law.

Second, the program may provide training directly, through either live programs or online

resources. Wisconsin has an annual Trial Skills Academy, an annual two-day conference,

certification programs in specialty areas such as juvenile cases and revocations, and online

resources (such as training outlines and case digests). Massachusetts provides an annual

training conference, specialized training for every practice area, and county-based training

events presented by local attorneys on the assigned-counsel panel.

Erie County’s Assigned Counsel Program provides ongoing training from basic to advanced

levels. For example, the program provides 15-20 certified continuing legal education

presentations annually, attended by both public defenders and private attorneys. The program

thoroughly screens all participating private attorneys and certifies them for specific case types

commensurate with their levels of skill and experience. The program also follows a periodic

recertification process to review performance. All programs are recorded and made available

to all participating attorneys. The program has a formal curriculum for inexperienced attorneys

before they are approved to receive case assignments.

Sacramento County requires 40 hours of training, provided by the assigned-counsel program,

before a private attorney is eligible for case assignments. Thereafter, the program requires

periodic training and discontinues appointments to attorneys who fail to comply with this

requirement. Kern County also requires specialized training in criminal law. The program

either provides the training or sends attorneys to designated seminars.

In addition to providing formal training, several organizations provide valuable information

online for the private bar, such as training materials, case summaries, and resource directories.

For example, the District of Columbia Public Defender Service has a directory on its website that



includes local treatment courts, rehabilitative programs, sentencing resources, vocational

programs, and potential employees. By making this information readily available, a defender

organization shares with the private bar the expertise that stems from specialization. Private

bar attorneys, who typically handle fewer criminal cases as part of a mixed practice, can locate

information on a website regarding programs and resources that are potentially beneficial to

their clients.

Some organizations provide specific programs to assist new attorneys. In Erie County, new

attorneys are mentored and supervised by a full-time training attorney for a period of

approximately 8-10 months before receiving final approval to receive assignments. Connecticut

assigns (and compensates) an experienced private attorney to mentor a new attorney during

his or her first year of accepting appointments. Sacramento County follows a thorough

screening process before private attorneys are accepted as provisional panel members. New

attorneys are reevaluated after 1 year to determine if they will be granted full membership

status. Requests for upgrades to a higher panel classification require an additional evaluation.

Principle 10-Supervision and Review of Performance

By definition, an assigned-counsel system relies on the services of private attorneys (not

employed directly by the indigent-defense organization). Thus, the model of direct employer-

employee supervision must be modified to comply with applicable laws and ethical rules. For

example, client confidentiality may preclude direct discussion of specific actions on behalf of an

identified client, absent client consent to disclosure. File reviews may also raise confidentiality

issues because, even when client names are redacted, the client may be identifiable by virtue of

other information already known to the attorney conducting the file review. Nonetheless,

assigned-counsel programs should provide sufficient oversight to promote high-quality

representation, and the examples below describe some methods to review the performance of

private attorneys.

The mentoring programs described above (p. 10) provide feedback regarding the progress of

new attorneys, which in turn informs the decision about their future eligibility to receive

appointments.

Massachusetts contracts with experienced local attorneys to conduct formal and regular

performance reviews of private attorneys’ criminal and delinquency cases. Over 600 such

reviews are performed every year. Attorney performance is evaluated consistent with

published Performance Standards that address each practice area. Attorneys are required to

maintain case files for at least six years in case the attorney is selected for a billing audit. The

completeness of attorney files is also examined in performance reviews.



San Mateo County's Chief Defender and staff annually evaluate each private attorney accepting

appointments through the county’s Private Defender Program. These reviews encompass

advocacy skills, professionalism, and client relationships.

Although less systematic than formal performance reviews, other methods to review

performance include feedback from attorneys and judges, investigation of complaints, and

client-satisfaction surveys. Sacramento County and Wisconsin rely on these methods to

identify and respond to concerns about performance of private attorneys (the satisfaction

surveys are used to assess the overall assigned-counsel program, not the individual attorneys).

Sacramento County utilizes a peer review committee to investigate and respond to concerns

and complaints; often, minor issues are handled through informal mentoring of attorneys.

Clients in Massachusetts are notified that their attorneys are assigned through the Committee

for Public Counsel Services (CPCS) and given contact information for CPCS, so that clients can

make complaints if dissatisfied with the representation provided. CPCS investigates complaints

about assigned counsel, whether received from clients, judges, or others.

Erie County utilizes a combination of formal and informal methods to oversee attorney

performance. Clients are given contact information for the Administrator, who receives and

investigates all complaints. A client-satisfaction questionnaire is sent on a weekly basis to a

random sample of clients whose cases have recently been completed. Felony attorneys are

evaluated regularly, and the program is planning to expand such reviews to include attorneys

on the misdemeanor and Family Court panels.

4. Prompt Appointment, Attorney-Client Communication, and Continuity of

Representation

Principle 3-Prompt Appointment of Counsel

Principle 4-Sufficient Time and Confidential Meeting Space

Principle 7-Continuous Representation by the Same Attorney

Three of the Ten Principles (listed above) focus on the defender system’s ability to promote an

effective attorney-client relationship through specific attributes of its case assignments and the

local conditions for appointed attorneys to communicate with their clients.

Principle 3-Prompt Appointment of Counsel

Assigned-counsel systems should provide for prompt determination of eligibility and appointment of counsel, to ensure that clients receive legal representative throughout the entire proceeding and to ensure that attorneys have adequate time to prepare for each phase of the proceeding.



Principle 3 recognizes the importance of providing counsel promptly to an indigent client. A

wealthy person is generally able to retain an attorney promptly, so equal justice for an indigent

person depends on adherence to Principle 3. This principle can be challenging in an assigned-

counsel program, because the private attorney ultimately assigned to the case is often not

present at the client’s first court appearance.

In Connecticut, staff of the Division of Public Defender Services complete financial forms by

interviewing applicants before their initial court hearing. A staff attorney presents the financial

information to the court, which immediately determines eligibility for appointed counsel.

Generally, a qualified private attorney is available in court to accept an appointment if the case

is one that will not be assigned to a staff public defender.

In Wisconsin, another mixed staff-private system, the State Public Defender (SPD) is the

appointing authority for cases in which applicants qualify for its services. SPD staff go to the

county jails throughout the state to conduct the financial screening before the defendant’s

initial court hearing (in juvenile cases and mental-commitment cases, this financial screening is

not required). SPD staff attorneys provide representation at the initial appearance to seek

release on bail, even in cases that will later be assigned to the private bar. The appointments to

private bar generally occur within two days of the eligibility screening, and priority in the

appointment process is given to cases with imminent hearings. Colorado and the District of

Columbia are other jurisdictions in which the indigent-defense provider determines eligibility4

and can promptly appoint attorneys for clients held in custody.

In most other programs, eligibility screening occurs at or after the initial court hearing. Two

programs that are examples of prompt appointment at this hearing are San Mateo County and

Kern County, which assign a private attorney to every arraignment calendar. This procedure

allows the client to have contact with an attorney at the initial hearing. The same procedure

for eligibility screening is followed in Massachusetts. In murder cases, Massachusetts assigns

an attorney as soon as possible following an arrest, subject to a subsequent indigency

determination by the court.

4 Although Principle 3 advocates for prompt determination of eligibility for appointed counsel, it does not specify

the organization that should perform the financial screening. If the indigent-defense provider conducts the screening, its staff should be sensitive to the distinction between the administrative screening function and the advocacy role. For example, although attorney-client communications are generally confidential, an exception may exist for financial information provided in an application to have an attorney appointed. Cf. Wis. Stat. § 977.06(2)(b) (criminal liability for an intentional false statement in application for public defender).



Principle 4-Sufficient Time and Confidential Meeting Space

Assigned-counsel systems should require attorneys to communicate regularly and confidentially with their clients and should work with other justice officials to provide adequate meeting time and space in courthouses, jails, and prisons.

Principle 4 is closely related both to an attorney’s overall workload (Principle 5) and to prompt

appointment (Principle 3). An attorney who is appointed promptly and who has a reasonable

workload is most likely to have time available to meet with a client before the next court

hearing.

Access to a confidential meeting space to meet with an incarcerated client can be a challenge,

depending on the availability of meeting rooms at the courthouse or jail. The San Mateo

County attorneys have access to confidential meeting rooms at the county courthouse and jail.

Other jurisdictions report differences among their facilities, including some jails that limit face-

to-face contact and some courthouses that do not have sufficient conference rooms. Although

it may be beyond the capability of an indigent defense system to compel the courthouse or jail

to provide enough confidential meeting rooms throughout the day to accommodate all

attorney-client meetings, the defender system can train attorneys on the importance of

maintaining confidentiality and of communicating sufficiently with their clients.

Massachusetts, San Mateo County, and Wisconsin all have performance standards that inform

private attorneys of the need to communicate properly and promptly with their clients.

Sacramento County requires attorneys to meet with in-custody clients within 48 hours of

accepting an assignment. Massachusetts requires counsel to meet with a new client in custody

at the place of confinement within 3 days. Massachusetts, Alameda County, Erie County, Kern

County, and Sacramento County require that private attorneys have an office accessible to the

clients in the county where the attorneys accept appointments. San Mateo County and Erie

County have conference facilities available at their offices for that purpose.

Telephone communications with incarcerated clients can be a challenging issue for indigent-

defense providers, regardless of the structure of the defender system. Face-to-face meetings

with clients are ordinarily preferable, but often workload and travel requirements make a

telephone conversation more convenient. Two concerns with these telephone calls are

confidentiality and cost. Confidentiality may be compromised either by a recording system or

by the physical proximity of others (for example, correctional officers or inmates) to the client

during the telephone call.

Cost concerns may be significant if the clients are required to place collect telephone calls.

Administrators of indigent defense providers should seek dedicated, toll-free, and confidential

telephone communication with incarcerated clients. However, the absence of a free telephone



line does not excuse a failure to communicate adequately with a client; therefore,

administrators should recognize that attorneys may need to accept some collect calls to ensure

adequate attorney-client communication. The cost of these calls should be reimbursable as a

reasonable and necessary expense incurred during the representation.

Principle 7-Continuous Representation by the Same Attorney

Assigned-counsel systems should appoint attorneys to provide vertical representation throughout the proceeding at the trial-level and should have the ability to appoint separately for the purpose of postdispositional proceedings.

Principle 7 recognizes that quality representation is ordinarily furthered by continuous

representation by the same attorney throughout trial-court proceedings (for example, in a

criminal case, from initial appointment through dismissal, imposition of sentence, or other

disposition). Similarly, Principle 7 calls for continuous representation throughout a direct

appeal (although the appellate attorney does not need to be the same attorney who

represented the client in the trial court). In Massachusetts, new counsel is required on appeal

(unless the client requests otherwise) to assure adequate consideration of ineffectiveness

claims. Several organizations have separate qualification standards for post-conviction

representation, such that the trial attorney may not be eligible to provide such representation.

Most assigned-counsel programs appoint attorneys in conformity with this principle of

continuous or vertical representation. However, there can be tension between this principle

and the principle of attorney qualifications (for example, an attorney assigned to handle bail

hearings may be qualified to handle most cases, but may not have the necessary experience to

handle cases of the highest severity). In some programs, such as San Mateo County, Kern

County, Connecticut, and Massachusetts, continuous representation ordinarily begins at the

first court appearance. These programs have a private attorney assigned to the arraignment

court (or readily available), and, unless there is a conflict of interest, an issue of attorney

qualifications, or another compelling circumstance requiring a change of attorney, this attorney

provides representation throughout the trial-level proceedings.

In other programs, there is tension between the principle of vertical representation and the

principal of providing counsel promptly. The attorney who represents the client at the initial

hearing may not be the attorney subsequently appointed. However, a private attorney is

appointed shortly after the initial hearing, and this attorney’s representation continues

throughout the trial-level proceedings. This system, although compromising the principle of

vertical representation at the initial hearing, is preferable to a system in which the defendant

has no representation at the initial hearing.



APPENDIX

The following assigned counsel programs are discussed in this report, and their administrators

are available to provide additional information regarding the operations and organization of

their respective programs.

Name of Program State or County Staff & Private? Website

Alameda Co. CCAAP1 County No acbanet.org

Erie Co. ACP2 County No3 assigned.org

Massachusetts CPCS4 State Yes publiccounsel.net

Sacramento Co. CCD5 County No6 ppaccd.saccounty.net

San Mateo Co. PDP7 County No smcba.org

Wisconsin SPD8 State Yes wisspd.org

Kern County BA IDP9 County No10 KCBA-IDP.org

Connecticut DPDS11 State Yes ocpd.state.ct.us

District of Columbia PDS12 District of Columbia No pdsdc.org

Notes 1 Civil Court-Appointed Attorneys Program 2 Assigned Counsel Program 3 The county has a staff defender organization in addition to the assigned counsel program. 4 Committee for Public Counsel Services 5 Conflict Criminal Defenders 6 The county has a staff defender organization in addition to the assigned counsel program. 7 Private Defender Program 8 State Public Defender 9 Bar Association Indigent Defense Program 10 The county has a staff defender organization in addition to the assigned counsel program. 11 Division of Public Defender Services 12 Public Defender Service. As noted above [in the commentary on Section 1, Principle 1], in the

District of Columbia, the judges appoint cases directly to private attorneys. PDS, in addition to providing representation through its staff defender, participates in an advisory committee that seeks to enhance the quality of private-bar representation to indigent clients.



PART E.

NACDL ASSIGNED COUNSEL POLICIES*

* Source: National Association of Criminal Defense Lawyers (NSCDL), Indigent Defense Committee, “Indigent

Defense Policies: Standards, Contracts & Professional Responsibility” (as amended with approval by NACDL Board of Directors, May 3, 1997), http://www.sado.org/fees/1997-05-01-ind00005.pdf.

http://www.sado.org/fees/1997-05-01-ind00005.pdf



NACDL Indigent Defense Committee

Indigent Defense Policies: Standards, Contracts & Professional Responsibility

At the request of the Indigent Defense Committee, the Board of Directors approved

amendments to the NACDL Assigned Counsel Policies at the Spring Meeting in Boston on May

3, 1997. New provisions were added, addressing the need for "vertical" representation, and

establishing proper conditions for indigent defense contracting.

"Vertical" representation -- by the same lawyer throughout the trial level proceedings -- is also

endorsed by the ABA's Standards for Providing Defense Services, 5-6.2 (3d ed. 1992). The ABA's

Commentary explains that the "horizontal" alternative -- different defenders representing the

accused at different stages of the proceedings -- has many disadvantages, including the

negative perception, by the client, of being processed through an assembly line; and inherent

inefficiency where each successive attorney must start from scratch at becoming familiar with

the case and the client. "Moreover, when a single attorney is not responsible for the case, the

risk of substandard representation is probably increased." Id. at 83. Especially when

inadequate funding -- virtually universal -- results in caseloads several times larger than the

most capable counsel can competently manage.

Indigent defense contracting, as a low-cost alternative to assigning individual lawyers to

individual cases, has grown enormously over the past decade, and should be subject to strict

quality controls, as outlined by NACDL's new paragraph 8. Reference is also made to Rules of

Professional Conduct that are routinely negated by indigent defense systems designed to

maximize the forfeiture of liberty -- and even life itself – at the lowest cost to the government.

The state supreme courts and the organized bar, responsible for enforcing ethics rules in most

jurisdictions, have long been blind to the reality of underfunded indigent defenses systems

manifested by ongoing, wholesale violation of rules demanding competent representation --

including the legal knowledge, skill, thoroughness and preparation necessary for competent

representation (ABA Model Rule 1.1); diligence and promptness (Model Rule 1.3); and

adequate client communication (Model Rule 1.4); and forbidding conflicts of interest, including

conflicts with duties owed to other clients (Model Rule 1.7).



In order to reverse the ethical degeneration of decades of neglect, it is now incumbent upon

the organized bar to apply to indigent defense systems the Rules of Professional Conduct

applicable to all attorneys. One small step was taken recently by the Disciplinary Board of the

Louisiana Bar Association in case No. 96-PDB-012. Upon concluding that inmate Vincent

Singleton's right to appeal had been neglected by the appellate public defender for over two

years, the Board directed the Office of Disciplinary Counsel to "investigate the matter further to

ascertain if the system is as [lawyer's name deleted] describes it and if the system . . . needs to

be altered to meet the requirements of the Rules of Professional Conduct." Disciplinary

Counsel did so, and wrote to the Director of the Orleans Indigent Defender Program, with a

copy to the Chief Justice of the Louisiana Supreme Court, about incompetent representation.

Some excerpts:

I am cognizant of the financial and time constraints which are placed upon your

program. Within the resources available to you, however, it is imperative that

this dilemma be addressed. Clearly, the failure to designate responsible counsel

when files are accepted by the O.I.D.P. fosters a system which fails to meet the

standards of diligent representation as required by the Rules of Professional

Conduct.

We call this matter to your attention in an effort to aid and assist you in not only

rectifying the problems of the complainant in this matter, but as further

demonstration of your need for commitment from those parties responsible for

insuring proper and sufficient funding and support which will allow your

attorneys and staff to provide legal services as are envisioned by the Supreme

Court Rules of Professional Conduct.

Those "parties responsible for insuring proper and sufficient funding" are usually

elected members of the legislative and executive branches of state and local

government. If they happen also to be members of the bar, are they not

exposed to disciplinary action if systemic ethical violations are the inevitable

result of underfunding? And as for low-bid indigent defense contracts, does not

the organized bar (and every individual member thereof) have an affirmative

responsibility to monitor the terms and performance of those contracts -- signed

by one or more members of the bar -- for compliance with the Rules of

Professional Responsibility? And to declare such contracts void as against public

policy if they fail to measure up? The professionally responsible answer, yes to

all the above, is also the key to improving the dismal public image of the bar in

general, and criminal defense in particular.



NACDL Assigned Counsel Policies (as amended May 3, 1997)

On November 5, 1994, and May 3, 1997, the NACDL Board of Directors adopted general policies

on Assigned Counsel Systems, to provide aspirational context and direction to NACDL

endeavors and to explicitly endorse standards promulgated by the American Bar Association,

the National Legal Aid & Defender Association, and other groups.

1. The goal of systems providing assigned counsel must be to provide quality, vertical1

representation equivalent to that provided by skilled, knowledgeable and conscientious

counsel hired by paying clients, rather than the lower "reasonably effective assistance"

standard of Strickland v. Washington.2

2. Assigned counsel systems must include substantial participation by the private bar, in order

to assure the continued interest of the bar in the welfare of the criminal justice system.3

3. Assigned counsel systems should be administered by and funded through an agency

independent from the judiciary.4

4. Compensation: Assigned counsel should be paid a fee comparable to that which an average

lawyer would receive from a paying client for performing similar services.5

5. Eligibility to serve: Private bar participation must be voluntary; counsel must meet specific

qualification standards.6

6. Rotation of assignments and revision of roster: Ordinarily, assignments should be made in an

orderly, sequential way to avoid patronage and its appearance. The roster should be

1 Vertical representation means the same lawyer will represent a client from arraignment through trial, and, if

necessary, sentencing. 2 ABA Standards for Criminal Justice Providing Defense Services (ABA Standard), 5-1.1 (3d Ed. 1992); National Legal

Aid & Defender Association, Standards for the Administration of Assigned Counsel Systems (NLADA Standard), 2.1(b) (Nov. 14, 1989). 3 ABA Standard 5-1.2 (Systems for legal representation).

4 ABA Standard 5-1.3 (Professional independence); NLADA Standard 2.2 (Independence from Judiciary and Funding

Source). 5 President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts, 61

(1967). "[I]t is simply unfair to ask those lawyers who happen to have skill in trial practice and familiarity with criminal law and procedure to donate time to defense representation. It is worth remembering that the judge, prosecutor, and other officials in the criminal courtroom are not expected to do work for compensation that is patently inadequate." ABA Standard 5-2.4 (Commentary). "Reasonable compensation shall be provided to assigned counsel, at a rate commensurate with that paid for other contracted government legal work (e.g., work contracted for by attorneys general, county legislatures or commissions, etc.) or with prevailing rates for similar services performed by retained counsel in the jurisdiction." NLADA Standard 4.7.1. 6 ABA Standard 5-2.2; NLADA Standard 2.9, 4.1.1.



periodically revised to re-certify assigned counsel and ensure quality representation.

Specific criteria for removal should be adopted in conjunction with qualification standards.7

7. Should an attorney be removed, the attorney shall have the opportunity to be heard by a

removal committee, to be represented by counsel, and an opportunity to appeal to the

administrator, whose decision shall be final. Procedures shall be established for

consideration of a removed attorney's application for reinstatement, including an

opportunity to demonstrate that the deficiencies which led to removal will not be

repeated.8

8. If contracts for services of defense counsel are a component of a jurisdiction's legal

representation plan, such contracts should ensure quality legal representation. Contracts

should not be awarded primarily on the basis of cost, and should include terms requiring

contractors to maintain standards necessary to deliver quality vertical representation and to

comply with standards of professional responsibility,9 including: maximum caseloads;

minimum levels of experience and ongoing training; reasonable compensation, including

provision for additional compensation in the event of unforeseen extraordinary

circumstances; and sufficient support services and expenses for investigative services,

expert witnesses and other litigation expenses.10

These goals pursue basic constitutional principles: the right of indigents to quality

representation from counsel appointed by the court and paid by the government; the right to

fair compensation when property, including services, is taken for public use; and the right to

procedural due process (notice, hearing, review) when property and liberty interests are at

stake.

7 ABA Standard 5-2.3; NLADA Standard 4.1 et seq.

8 NLADA Standard 4.5 et seq. The NLADA's detailed guidelines recommend due process procedures, including

sanctions less onerous than suspension, prior to discipline. NLADA Standard 4.5.2. 9 Most jurisdictions have adopted some form of the ABA Model Rules of Professional Conduct requiring Competent

Representation -- including the legal knowledge, skill, thoroughness and preparation necessary for competent representation (Rule 1.1); Diligence and Promptness (Rule 1.3); and adequate Client Communication (Rule 1.4); and forbidding Conflicts of Interest, including conflicts with duties owed to other clients (Rule 1.7). 10

See ABA Standard 5-3.1, 5-3.3; NLADA, Guidelines for Negotiating and Awarding Governmental Contracts for criminal Defense (1984).



PART F.

CHARACTERISTICS OF DEFICIENT AND EFFECTIVE CONTRACT DEFENDER

SYSTEMS*

* Source: Robert L. Spangenberg, et al., Contracting for Indigent Defense Services: A Special Report (Washington,

DC: Bureau of Justice Assistance, NCJ 181160, April 2000), Chapter III, pp. 13-18, https://www.ncjrs.gov/pdffiles1/bja/181160.pdf.

https://www.ncjrs.gov/pdffiles1/bja/181160.pdf



Characteristics of Deficient and Effective Contract Systems

Scholars and practitioners who have studied indigent defense contract systems agree that fairly

specific features differentiate effective contract systems that are constitutionally and ethically

sound from those that fail to deliver acceptable standards of representation.

Characteristics of Deficient Contract Systems

The most seriously criticized contract systems:

Place cost containment before quality.

Create incentives to plead cases out early rather than go to trial.

Result in lawyers with fewer qualifications and less training doing a greater percentage

of the work.

Offer limited training, supervision, or continuing education to new attorneys or

managers.

Reward low bids rather than realistic bids.

Provide unrealistic caseload limits or no limits at all.

Do not provide support staff or investigative or expert services.

Result in case dumping that shifts cost burdens back to the institutional defender.

Do not provide for independent monitoring or evaluation of performance outside of

costs per case.

Do not include a case-tracking or case management system and do not incorporate a

strategy for case weighting.

In Jones County, Mississippi, the contract system was so poorly constructed that the

contractors themselves filed suit, contending that they should be found to be ineffective in all

cases as a result of the conditions under which the contract required them to provide services.

In 1992, Jones County provided $32,000 for indigent representation in criminal cases. Two

attorneys were hired at $13,000 each, leaving the attorneys $6,000 for expenses. When they

agreed to the contract, neither attorney was aware of a backlog of 400 pending felony cases

that the previous contractor had been paid to represent.

The two contractors brought suit to compel the county to limit their caseload and increase

funding. While the case was pending in the appellate courts, the Jones County Board of

Supervisors reached an agreement with the contractors by increasing the amount of the

contract to $118,000.



North Dakota solved a similar problem in a different way. The state provides indigent defense

services through contracts in each of North Dakota’s seven judicial districts. The contracts are

for flat fees without caseload caps. Rather than award contracts to the lowest bidders, judges

establish the amount of the contract and issue notice that it is available. Attorneys may then

apply, and the presiding judge selects from the applicants.

This practice calls attention to the issue of independence in awarding contracts. Both the ABA

Standards and NLADA Guidelines recommend that the professional independence of indigent

defense systems, including contractors, be protected by creating an independent organization

such as a board of trustees or policy board to administer and award contracts.

In the North Dakota system, if an attorney receives a particularly difficult case toward the end

of the contract period, he or she is expected to carry the case to completion. In some cases,

that has meant continuing to work without compensation after the contract ends. Recent

changes to the system now allow attorneys to approach the presiding judge to negotiate either

continued payment or transfer of the case, but such actions are discretionary.

Low-bid contracts often require participating attorneys to accept an unlimited number of cases

during a contract period with no mechanism for relief. In Yuma County, Arizona, for instance, in

fall 1995, a contract attorney who believed that her caseload exceeded her ability to provide

competent representation to all her clients asked the superior court to withhold further

appointments under her contract until she was able to decrease her workload. She cited the

presumptive caseload caps created under Arizona Supreme Court case law. The superior court

rejected her claim and continued to assign cases to her. The case was then heard by the

Arizona Supreme Court, which sent it back to the superior court for fact-finding. Before a

hearing could be held, however, the Yuma County Board of Supervisors decided to establish a

public defender office.

As with any forecast or projection, there is uncertainty in predicting the number and type of

cases that will be filed in a jurisdiction in any given year. If the number of cases filed is higher

than projected, it may result in poor representation and jeopardize the constitutional rights of

indigent defendants. Further, the situation poses an ethical dilemma for the contracting

attorney, who must determine whether it is possible to fully and ethically advocate for each of

his or her clients.

Contractors may also find themselves earning exceptionally low fees as a result of fixed-fee

contracts. Recently, a contractor working in Montana accumulated an excessive caseload of

100 felonies and 250 misdemeanors. The tacit understanding when he agreed to accept the

contract was that he would represent up to 60 felony cases and up to 100 misdemeanor cases

per year. One felony case ended in a 5-week trial, leaving him little time to attend to the other



cases during that period. By the end of the year, based on the contract amount, he was earning

approximately $18 an hour, with no compensation for overhead.

With these experiences in mind, the Board of Supervisors in Ventura County, California,

recently decided to continue its contract with Conflict Defense Associates (CDA), a group of

attorneys that has provided indigent defense services in the county for the past 18 years for

cases in which the primary public defender office has a conflict. In 1999, in response to 4

consecutive years of cost overruns, the board opened bidding on the contract for the first time

since CDA began contracting with the county. A firm with contracts with five other counties in

California bid $1.1 million for the contract, roughly $700,000 less than CDA’s final bid. Based on

the bid price alone, a three-judge subcommittee recommended the firm to the other superior

court judges.

The full review of the bid, however, also considered quality issues. In reviewing the provision of

services in other counties, it was learned that the out-of-county firm saved money by using

unlicensed investigators, limiting support staff, and using very inexperienced attorneys. A judge

in another county had complained that this firm used inexperienced lawyers who were often

unavailable in court, did not maintain full-time offices, and seemed more interested in

obtaining other contracts than in providing services.

In the end, the Ventura County Superior Court judges and the Ventura County Board of

Supervisors determined that quality of services had to be considered along with cost. This

meant evaluating more than the per-case costs of the proposed bids. Both the judges and the

supervisors determined that experience and quality of services supported continuing the CDA

contract, which they did in July 1999.*

Characteristics of Effective Contract Systems

Contract systems viewed by critics as the most effective share features that allow

administrators to monitor and evaluate costs while providing quality representation. These

features include:

Minimum attorney qualifications.

Provisions for support costs such as paralegals, investigators, and social workers.

Independent oversight and monitoring.

Workload caps.

Limitations on the practice of law outside the contract.

* In 1992, Ventura County’s auditor-controller issued a report that found the county could save up to $435,000 a

year by establishing a second public defender’s office rather than continuing to contract for conflict services. That option was not considered during the most recent attempt to cut costs.



Provisions for completing cases if the contract is completed but breached or not

renewed.

Caseload caps.

Case management and tracking requirements.

Guidelines on client contact and notification of appointment.

A mechanism for oversight and evaluation.

One such model operates statewide in Oregon. It is administered by the Indigent Defense

Services Division of the State Court Administrator’s Office (SCA).

In Oregon, 92 percent of the trial-level state court indigent defense caseload is covered by

contracts awarded by SCA in response to an RFP. In 1999, there were 85 contracts for services

(including 5 contracts with non-attorneys) in 34 of Oregon’s 36 counties. Four basic types of

contracts were used: contracts with nonprofit public defender organizations with salaried staff;

contracts with law firm consortia in which groups of attorneys or law firms joined together to

provide defense services; partnerships in which individual law firms agreed to have their

attorneys provide indigent defense services while continuing to serve private clients; and

contracts with individual attorneys.

Ann Christian, Executive Director of the Indigent Defense Services Division (IDSD), believes that

a strength of Oregon’s system is that it operates statewide. “Because we have been able to

create a statewide system that fixes costs within predictable ranges,” she said, “other members

of the criminal justice system, such as the judges, are able to focus more attention on issues of

quality of indigent defense representation. The stability and longevity of our system allows us

to accurately assess expected caseloads and costs.”

Oregon has developed a detailed RFP to solicit bids from potential contractors. The RFP is

based on a model contract that establishes expectations for caseloads, costs, areas of coverage

(including geographic limits and types of cases), level of services, staffing plans, and the

applicants’ experience and qualifications. The review process includes consultation with local

courts and judicial staff and an assessment that the proposal is consistent with the needs of the

county, region, and state.

Oregon has also established a process by which extraordinary expenses related to cases are

paid through a mechanism outside the standard contract. In most death penalty and serious

mandatory minimum sentence cases, funds for experts, investigators, and other expenses not

specified in the contract are submitted to IDSD for review. In less serious cases, such funding

requests are reviewed judicially. In Oregon, unlike most other systems, these expenses do not

come from the money set aside for the contractor’s basic operations.



In New Mexico, the standard contract specifies that each contract attorney will independently

investigate each case, seek the assistance of a social worker for considering a sentencing

alternative, and seek the assistance of an expert witness when such assistance is likely to have a

significant impact on the outcome of the case.

Typically, good contract systems cost more per case than do public defender or assigned

counsel programs. In part, this results from the costs of administering the contracts, from the

costs of overseeing and evaluating multiple providers, and from the costs of additional work

necessitated when contractors lack the institutional knowledge that accumulates within a staff-

based organization. A study of San Diego County, California, for example, found that a contract

system would cost $8 million more per year than a staff-based defender agency.

The initial savings a jurisdiction can achieve by switching from an assigned counsel system to a

contract system can vanish in subsequent years if, as experience has shown, experienced

attorneys drop out of the bidding process as the contracts prove to be more time consuming

than anticipated. Many contracts do not even cover average hourly overhead. Jurisdictions are

then faced with a dilemma: Do they accept the attrition of experienced attorneys and contract

with inexperienced attorneys, risking jail, court delays, and ineffectiveness claims, or do they

increase the contract payments to maintain system efficiency and stability? Jurisdictions with

particularly strong bar associations often find that they must keep increasing contract rates to

continue attracting competent attorneys.

King County, Washington, uses a contracting system to provide indigent defense services. Like

the examples discussed above, the contract establishes standards for the quality of

representation and caseload limits. A central administrative agency, the Office of Public

Defender (OPD), currently contracts with four nonprofit defender organizations to provide

primary representation. Each contractor carries a mixed caseload of felony cases, juvenile

cases, and other types of cases. When these organizations are unavailable because of conflicts,

the county turns to assigned private counsel.

According to Bob Boruchowitz, Director of the Defenders Association, the largest and oldest of

the four contractors, Seattle defenders worked for years to persuade local government that

there should be maximum caseloads for defense attorneys. With the help of a bar association

task force called to respond to a report alleging “supermarket justice” in the municipal courts,

the defense community in King County developed caseload standards that led to the city and

the county agreeing that there should be reasonable caseload limits. “Caseload limits,”

Boruchowitz said, “have been the key to protecting our ability to provide effective

representation and obtaining the resources we need.”