F. Mixed Systems
Most criminal defense standards are written for a single type of defense system, involving either public defenders, a contract attorney office, or assigned counsel. ABA Defense Services Standard 1-1.2 requires a mixed system consisting of a Defender Office coupled with a substantial involvement of the private bar either through assigned counsel plans or contracts for service. Other organizational approaches may exist, such as a public defender/conflicts office or assigned counsel plan. In some states, public defender offices represent defendants in the urban jurisdiction while assigned counsel appear elsewhere.
The following groups of standards are included in this section:
1. Statewide defense
2. Case allocation
3. Related provisions1. Statewide Defense
Commentary. Three sets of national standards consider whether defense services should be organized at the state level. Only the ABA standards do not address this issue. The NLADA Guidelines for Legal Defense Systems explicitly prefer creation of a state-level defender organization. The Model Public Defender Act recommends the establishment of a new Office of Defender General in the executive branch. The national Advisory Commission standards take no position on the creation of a state system but do recommend that the state, rather than localities, fund defense services.
NLADA Guidelines for Legal Defense Systems in the United States
2.4 State Level Organization with Centralized Administration
Defender services should be organized at the state level in order to ensure uniformity and equality of legal representation and supporting services, and to guarantee professional independence for individual defenders. The defender system should provide services by means of city, county, or multi-county programs to every jurisdiction in the state.
(a) Except in the case of pre-existing agencies, the planning and creation of local or regional defender offices should be undertaken by a state defender office which is responsible for providing all defender services.
(b) The role of the State Defender Director with respect to offices throughout the state should be as follows:
(1) The State Defender Director should appoint Deputy Defenders to head the local and regional offices and should set general policy and guidelines regarding the operation of such offices and the handling of cases; however, the daily administration of the local and regional offices and the handling of individual cases should be the responsibility of the Deputy Defenders.
(2) The State Defender Director should ensure that on-site evaluations of each defender office or assigned counsel program in the state, whether organized as part of the state defender system or as a preexisting entity, are conducted not less than once a year. The State Defender Director should be authorized to contract with outside agencies where necessary for this purpose.
(3) The State Defender Director should visit all offices and programs around the state on a frequent basis.
(4) The Office of State Defender should provide initial training for all new defender staff attorneys and conduct seminars for the continuing education of the staff of all defender offices and coordinated assigned counsel programs in the state.
2.5 Preexisting Agencies in a State Defender System
The State Defender Director should be permitted to contract with preexisting qualified entities to provide defense services.
The State Defender Director should be responsible for ensuring compliance by contracted programs with national standards.
Where the on-going program has been determined to be in full compliance with national standards, it should be eligible to receive state funding for its program and the Office of the State Defender should provide any necessary back-up services.
Where the on-going defender or coordinated assigned counsel program fails to comply with national standards, that program should have 120 days in which to comply. If, upon reevaluation after that time, the program continues to fall short of national standards, the Office of State Defender should itself replace the prior program.
2.8 Regionalization of Defender Services
In states which have not yet established the Office of State Defender, local political subdivisions having a sufficient number of cases to occupy two or more attorneys on a full-time basis should be required to establish an organized defender system. If a local political subdivision lacks a sufficient number of cases to occupy the full-time services of at least two attorneys, it should be required to combine with other political subdivisions to establish a regional, organized defender system.
Statewide regulations should be established in conformity with national standards governing the staffing and budgetary requirements of local and regional defender offices to ensure provision of uniformly high quality defender services and to protect the independence of the office from political and judicial influence. Staffing requirements for regional offices should be related to travel time for attending court and jail facilities as well as to approved caseload standards.
In the absence of full state funding, participating local governments should allocate costs among themselves. Alternative bases for allocation should include, but not be limited to, population, caseload, and equal sharing.
5.12 Choice of Counsel in Defense Systems
In a mixed system where both defender and assigned counsel programs exist, the client should be given the option of selecting either system.
The initial assignment of attorneys in defender and assigned counsel programs should be an internal administrative function. However, to the extent administratively feasible and consistent with the overall effectiveness of the system, the client should be afforded an opportunity to choose a particular attorney.
Whenever an attorney-client relationship has been established between an eligible accused and his attorney, the defense system should not terminate or interfere with that relationship without great justification, and the attorney should resist efforts by the court to terminate or interfere with that relationship.
Whenever it reasonably appears to counsel for an eligible accused that he is unable, for any reason, to furnish effective representation to a particular client, he should withdraw from the case with the consent of the client and the approval of the court, and should assist the client in securing new counsel. The defense system should not seek to prevent the individual attorney's withdrawal under these circumstances.
Whenever an eligible accused requests that different counsel be assigned to his case, the defense system should investigate the grounds for the request and should assign new counsel if (1) this constitutes the client's first such request, or (2) the investigation discloses that the attorney, for any reason, is unable to provide effective representation to the client. In all other cases the defense system should refuse to reassign the case, and should inform the client of his right to petition the court for reassignment of counsel.
National Conference of Commissioners on Uniform State Laws, Model Public Defender Act
Section 10. Office Of Defender General
(a) The Office of Defender General is established in the executive branch of the state. The head of the office is the Defender General.
(b) The Defender General shall be appointed by the Governor, with the advice and consent of the [appropriate state legislative body], for a term of 6 years and until his successor is appointed and qualified. To be qualified for appointment, a person must be licensed to practice law in the state. He may be removed from office only as judges of courts of general jurisdiction are removed and only for the reasons for which such judges are removed. The Defender General is entitled to compensation at the annual rate of [$].
(c) The Defender General has the primary responsibility for providing needy persons with legal services under this Act. He may provide these services personally, through deputies or assistants, through [district] public defenders employed under section 12 (a), or as provided by subsection (d). No other official or agency of the state may supervise the Defender General or assign him duties in addition to those prescribed by this Act. He may not practice law other than in the performance of his duties under this Act or engage in any other occupation, except as provided in section 17.
Section 11. Local Offices
The Defender General may establish as many branch or local offices as necessary to carry out his responsibilities under this Act. Each branch or local office shall be headed by a [district] public defender who is an assistant public defender selected by the Defender General. A [district] public defender is entitled to annual compensation not proportionately less than the compensation of the [county] prosecutor.
Section 16. Reports
(a) An attorney who is assigned by a court to represent a needy person under section 3 (d) or 6 shall report to the Defender General on his representation of the needy person, as prescribed by the Defender General.
(b) The Defender General shall submit an annual report to the [Governor] [legislature] showing the number of persons represented under this Act, the crimes involved, the outcome of each case, and the expenditures (totaled by kind) made in carrying out the responsibilities imposed by this Act.
National Advisory Commission on Criminal Justice Standards and Goals, Report of the Task Force on the Courts
Standard 13.6. Financing of Defense Services
Defender services should be organized and administered in a manner consistent with the needs of the local jurisdiction. Financing of defender services should be provided by the State. Administration and organization should be provided locally, regionally, or statewide.
Standard 13.8. Selection of Public Defenders
¶1 The method employed to select public defenders should insure that the public defender is as independent as any private counsel who undertakes the defense of a fee-paying criminally accused person. The most appropriate selection method is nomination by a selection board and appointment by the Governor. If a jurisdiction has a Judicial Nominating Commission as described in Standard 7.1, that commission also should choose public defenders. If no such commission exists, a similar body should be created for the selection of public defenders.
¶2 An updated list of qualified potential nominees should be maintained. The commission should draw names from this list and submit them to the Governor. The commission should select a minimum of three persons to fill a public defender vacancy unless the commission is convinced there are not three qualified nominees. This list should be sent to the Governor within 30 days of a public defender vacancy, and the Governor should select the defender from this list. If the Governor does not appoint a defender within 30 days, the power of appointment should shift to the commission.
2. Case Allocation
Commentary. The NLADA Guidelines for Legal Defense Systems is the only set of standards to address the question of how cases are allocated in a mixed system.
NLADA Guidelines for Legal Defense Systems in the United States
2.2 Allocation of Cases
In a mixed defender and assigned counsel system, the percentage of cases handled by each component of the system should depend upon the relative sizes, expertise and availability of the defender staff and of the panel of private lawyers.
Cases should be allocated in accordance with a fair and well-promulgated plan. The administrator should be responsible for developing, promulgating and implementing this plan.
The plan should allocate a substantial share of cases to each component of the system and should not a priori preclude allocation of any specific type or types of cases from assignment to either component. Provision should be made for cases involving multiple defendants, conflicts of interest, and matters requiring special expertise.
3. Related Provisions
Commentary. The NLADA Guidelines for Legal Defense Systems include three miscellaneous standards relating to the following topics:
- Rural programs
- Planning capacity
- Use of law students
NLADA Guidelines for Legal Defense Systems in the United States
3.3 Projecting Defense System Personnel Needs
Defense system personnel needs should be projected by means of detailed resource planning. Such planning requires, at a minimum, detailed records on the flow of cases through the criminal justice process and on the resources expended on each case at each step in the process.
4.1 Task Allocation in the Trial Function: Specialists and Supporting Services
Defender organizations should analyze their operations for opportunities to achieve more effective representation, increased cost effectiveness and improved client and staff satisfaction through specialization. The decision to specialize legal and supporting staff functions should be made whenever the use of specialization would result in substantial improvements in the quality of defender services and cost savings in light of the program's management and coordination requirements; provided that attorney tasks should never be specialized where the result would be to impair the attorney's ability to represent a client from the beginning of a case through sentencing.
Proper attorney supervision in a defender office requires one full-time supervisor for every ten staff lawyers, or one part-time supervisor for every five lawyers.
Social workers, investigators, paralegal and paraprofessional staff as well as clerical/secretarial staff should be employed to assist attorneys in performing tasks not requiring attorney credentials or experience and for tasks where supporting staff possess specialized skills.
Defender offices should employ investigators with criminal investigation training and experience. A minimum of one investigator should be employed for every three staff attorneys in an office. Every defender office should employ at least one investigator.
Professional business management staff should be employed by defender offices to provide expertise in budget development and financial management, personnel administration, purchasing, data processing, statistics, record-keeping and information systems, facilities management and other administrative services if senior legal management are expending at least one person-year of effort for these functions or where administrative and business management functions are not being performed effectively and on a timely basis.
The primary responsibility for managing, evaluating and coordinating all services provided to a client should be borne by the attorney. The attorney should conduct the initial interview with the client and make an evaluation of the case prior to entry by specialists and supporting staff into the case with the exception of specific ministerial duties necessary to start the attorney's file.
Except where an assigned counsel plan provides such services, defender organizations should provide appointed counsel with specialist and supporting services in cases not involving a present or potential conflict of interest.
Defender offices should employ staff to gather and maintain information on all aspects of the available pre-trial diversion options and to assist defense counsel and defendants both in determining the suitability of any given program and in expediting the client's entry into a program when the client so desires.
4.2 Task Allocation and Supporting Services in Rural Programs
Defender programs in rural areas which are staffed by only two or three attorneys should meet standards prescribed for larger programs except that specialization should be avoided and case assignments and routine administrative and public relations duties should be rotated to ensure that each staff attorney is fully familiar with the operation of the program and with all components of the criminal justice system.
4.4 Use of Law Students
Although law schools throughout the nation should be encouraged to establish closely supervised clinical criminal law courses in cooperation with local defender offices, it is deplorable that law students are now filling gaps that should be filled by the practicing bar. Law student programs should not be viewed as a long-term answer to the problem of adequately meeting the needs of defendants in the criminal justice system.
Law students utilized as supporting personnel in defender agencies should be carefully supervised, given a broad range of experience and, where appropriate, adequately compensated for their work.
Law students functioning as subcounsel in criminal matters should be thoroughly prepared in criminal law and procedure, ethics, and court practice before being permitted to handle actual courtroom appearances.
A law student should be permitted to handle as lead counsel motions, hearings, and trials only after the student has been certified under a student practice rule and provided that the supervising lawyer has determined that, to the best of his knowledge and belief, the student will not bias either the court or the jury against the defendant. The student should not be permitted to handle the case unless the client has consented in writing to student representation; however, the consent of the trial judge should not be required. The client's consent should be indicated on the court record prior to any courtroom proceeding.
Law students should not conduct initial substantive client interviews without the presence of a supervising lawyer.
Law students should not handle as lead counsel criminal cases in which the charges against the accused involve complex legal, evidentiary, or tactical decisions, or where there is a likelihood of a substantial deprivation of liberty upon conviction.
The requirement of close supervision necessitates that the supervising lawyer have a complete understanding of the case, be available to the student prior to any court appearance for consultation and be physically present and immediately available for consultation during the time the student is presenting a matter in court.