D. Right to Counsel
The Gideon-Argersinger requirement that defendants in criminal cases be provided counsel when they cannot afford private counsel and face potential incarceration requires a clear offer of counsel. Most standards do not address how or when the information should be communicated to arrestees. Failure to address this issue has led to excessive delay in assigning counsel to clients in some jurisdictions. If the counsel offer is refused, there must be an explicit refusal; otherwise, there later may be a claim of non-waiver. Two additional related topics are telephone access to counsel and facilities for private discussion between the defendant and counsel.
The standards in this section address the following topics:
1. Pre-assignment communication
2. Waiver of right to counsel
3. Facilitating attorney-client communication1. Pre-Assignment Communication
Commentary. Procedures for implementing the right to counsel begin with informing the defendant of that right. Because of the critical nature of this step, the failure of most sets of standards to include this step is somewhat surprising. While most of the national standards include a statement relating to the right to counsel, only the Georgia guidelines among all the state standards do so.
ABA Standards for Criminal Justice: Providing Defense Services
Standard 5-8.1. Providing counsel to persons in custody
(a) A person taken into custody or otherwise deprived of liberty should immediately be informed, preferably by defense counsel, of the right to legal representation. An offer of counsel should be made in words easily understood, and it should be stated expressly that one who is unable to pay for representation is entitled to counsel.
(b) Custodial authorities should provide access to a telephone, the telephone number of the defender, assigned counsel or contract for services program, and any other means necessary to establish communication with a lawyer.
(c) The defender, assigned counsel or contract for services program should ensure that information on access to counsel is provided to persons in custody. An attorney or representative from the appropriate program should be available to respond promptly to a person in custody who requests the services of counsel.
NLADA Standards for the Administration of Assigned Counsel Systems
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.
National Conference of Commissioners on Uniform State Laws, Model Public Defender Act
Section 3. Notice and Provision of Representation
(a) If a person who is being detained by a law enforcement officer without charge or judicial process, or who is charged with having committed or is being detained under a conviction of a serious crime, is not represented by an attorney under conditions in which a person having his own counsel would be entitled to be so represented, the law enforcement officer, [magistrate], or court concerned shall:
(1) clearly inform him of the right of a needy person to be represented by an attorney at public expense; and
(2) if the person detained or charged does not have an attorney, notify the appropriate public defender that he is not so represented.
This shall be done upon commencement of detention, formal charge, or postconviction proceeding, as the case may be. As used in this subsection, the term "commencement of detention" includes the taking into custody of a probationer or parolee.
(b) Upon commencement of any later judicial proceeding relating to the same matter, the presiding officer shall clearly inform the person so detained or charged of the right of a needy person to be represented by an attorney at public expense.
…
(e) Information given to a person under this section is effective only if:
(1) it is in writing or otherwise recorded;
(2) he records his acknowledgment of receipt and time of receipt, or, if he refuses to make this acknowledgment, the person giving the information records that he gave the information and that the person informed refused so to acknowledge it; and
(3) the material so recorded under paragraphs (1) and (2) is filed with the court next concerned.
National Advisory Commission on Criminal Justice Standards and Goals, Report of the Task Force on the Courts
Standard 13.3. Initial Contact with Client
The first client contact and initial interview by the public defender, his attorney staff, or appointed counsel should be governed by the following:
1. The accused, or a relative, close friend, or other responsible person acting for him, may request representation at any stage of any criminal proceedings. Procedures should exist whereby the accused is informed of this right, and of the method for exercising it. Upon such request, the public defender or appointed counsel should contact the interviewee.
Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent Defense Programs
Guideline 1.3 Appointment of Counsel
The Administrator of the indigent defense program or designee shall within 72 hours of detention:
(a) Appoint counsel for those who are indigent and without counsel;
(b) Clearly advise detained persons of their right to have counsel and that if they cannot afford a lawyer, one will be appointed to represent them;
(c) Allow or assist a person claiming to be indigent and without counsel to immediately complete an Application for Appointment of Attorney and Certificate of Financial Resources for a determination of indigency or not.
2. Waiver of Right to Counsel
Commentary. The right to counsel, like most other rights, may be waived. Formal waiver of the right to counsel on the record is required to document the fact of waiver. Three of the national standards (ABA, NLADA, Model Act) establish procedures for ensuring that any waiver is knowing and is documented.
ABA Standards for Criminal Justice: Providing Defense Services
Standard 5-8.2. In-court waiver
(a) The accused's failure to request counsel or an announced intention to plead guilty should not of itself be construed to constitute a waiver of counsel in court. An accused should not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed before a judge and a thorough inquiry into the accused's comprehension of the offer and capacity to make the choice intelligently and understandingly has been made. No waiver of counsel should occur unless the accused understands the right and knowingly and intelligently relinquishes it. No waiver should be found to have been made where it appears that the accused is unable to make an intelligent and understanding choice because of mental condition, age, education, experience, the nature or complexity of the case, or other factors. A waiver of counsel should not be accepted unless it is in writing and of record.
(b) If an accused in a proceeding involving the possibility of incarceration has not seen a lawyer and indicates an intention to waive the assistance of counsel, a lawyer should be provided before any in-court waiver is accepted. No waiver should be accepted unless the accused has at least once conferred with a lawyer. If a waiver is accepted, the offer should be renewed at each subsequent stage of the proceedings at which the accused appears without counsel.
NLADA Standards for the Administration of Assigned Counsel Systems
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.
National Conference of Commissioners on Uniform State Laws, Model Public Defender Act
Section 7. Waiver
A person who has been appropriately informed under section 3 may waive in writing, or by other record, any right provided by this Act, if the court, at the time of or after waiver, finds of record that he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law. The court shall consider such factors as the person's age, education, and familiarity with the English language, and the complexity of the crime involved.
3. Facilitating Attorney-Client Communication
Commentary. Among standards studied, only the ABA Defense Function Standards address the necessity of private interviews between the attorney and the client, including telephone access to counsel and facilities.
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4-2.1. Communication
Every jurisdiction should guarantee by statute or rule of court the right of an accused person to prompt and effective communication with a lawyer and should require that reasonable access to a telephone or other facilities be provided for that purpose.
Standard 4-3.1. Establishment of Relationship
…
(b) To ensure the privacy essential for confidential communication between defense counsel and client, adequate facilities should be available for private discussions between counsel and accused in jails, prisons, courthouses, and other places where accused persons must confer with counsel.
(c) Personnel of jails, prisons, and custodial institutions should be prohibited by law or administrative regulations from examining or otherwise interfering with any communication or correspondence between client and defense counsel relating to legal action arising out of charges or incarceration.