I. Contract Defense

Another method for providing defense services is for the jurisdiction to contract with a local firm. As with any other form of government contracting, defense services contracts are typically subject to competitive bidding.

The advantages of contract defense services can include reduced costs, predictable costs, streamlining of the counsel appointment process, and counsel expertise.

The potential disadvantages of contract counsel come from possible underbidding by the winning firm, resulting in inadequate services. These are referred to as "low bid systems." Inadequate service may, of course, result in a denial of the Sixth Amendment right to counsel (per Gideon and Argersinger), which can be the basis for appealing a conviction.

The standards in this section are intended to maximize the advantages in this system while protecting against the disadvantages.

The following topics are addressed in this section:

1. Authorization of contract services
2. Compensation
3. Contract termination and minimum term
4. Contracting procedures
5. Contract provisions
6. Prohibition on substitution of attorneys
7. Related provisions

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1. Authorization of Contract Services

Commentary. Explicit provision for contract defense services is included in all but one of the national standards and in five state standards. (The New York City standards were written for contract providers.) The standards vary considerably in detail, ranging from the ABA's general approval of contract defense services to the North Dakota model contract.

One contradiction in the NLADA standards should be noted. The NLADA Guidelines for Legal Defense Systems would bar the letting of contracts through competitive bidding. However, the later-adopted NLADA Guidelines for Criminal Defense Contracts recognize that contract procurement is common and that standards are therefore necessary. These guidelines include a bar against awarding contracts on a low-cost basis only. The ABA, Kansas, and Washington standards also frown on awarding contracts exclusively to the lowest bidder. The Indiana standards imply competitive bid procedures, in contrast to the Georgia standards, which simply authorize such contracts. The Appellate Standards for Michigan specifically bar the use of contracts at the appellate level in favor of a statewide attorney roster. See also, Arkansas Public Defense Commission, Minimum Standards.

ABA Standards for Criminal Justice: Providing Defense Services

Standard 5-3.1. Use of contracts for services

Contracts for services of defense counsel may be a component of the legal representation plan. Such contracts should ensure quality legal representation. The contracting authority should not award a contract primarily on the basis of cost.

NLADA Guidelines for Legal Defense Systems in the United States

2.6 Private Defender Organizations

Where a defender organization provides services pursuant to contract, in order to maintain continuity and attract qualified personnel to the position of Defender Director, provision should be made, either by law or by contract, for the continuation of the defender service beyond the contract period.

The scope of the services to be provided should be stated explicitly in the contract.

Contracts for defender services should not be let on the basis of competitive bidding.

The contract should specify the workload anticipated as it relates to the amount of funds being provided in order to provide a formula in the event that the anticipated workload is exceeded.

NLADA Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services

Guideline IV-3 Awarding the Contract

The Policy Board and/or Contracting Authority should award contracts for representation for those unable to afford counsel only when Contractors have complied with these guidelines. Under no circumstances should a contract be awarded on the basis of cost alone. The Policy Board and/or Contracting Authority shall determine whether the proposed budget of a potential contractor will provide the capability of complying with these Guidelines.

National Conference of Commissioners on Uniform State Laws, Model Public Defender Act

Section 10. Office of Defender General

(d) Whenever appropriate, the Defender General may contract with private or public legal aid or other non-profit organizations that are equipped to provide the services to needy persons covered by this Act or to carry out any other function of the Office of Defender General. Each contract must provide (1) that the services performed shall meet the professional standards that this Act prescribes for services performed by the Office of the Defender General, and (2) that the services are subject to the Defender General's supervision and control.

Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent Defense Programs

Guideline 2.7 Contract Attorney Program

The local committee may elect to provide indigent defense services through a contract with an individual lawyer, or group of lawyers.

Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases

L. Contracts

The comprehensive plan shall contain provisions for contracts for defense services, in the event that such contracts are used. The plan shall provide that contracts not be awarded primarily on the basis of costs and shall otherwise ensure quality legal representation. Procedures for the award of contracts should be published by the contracting authority substantially in advance of the scheduled date of award. The contracting parties should avoid provisions that create conflicts of interest between the contractor and clients. Contracts for services should include, but not be limited to, the following subjects:

  1. the categories of cases in which the contractor is to provide services;

  2. the term of the contract and the responsibility of the contractor for completion of cases undertaken within the contract term;

  3. the basis and method for determining eligibility of persons served by the contract;

  4. identification of attorneys who will perform legal representation under the contract and prohibition of substitution of counsel without prior approval;

  5. a policy for conflict of interest cases and the provision of funds outside of the contract to compensate conflict counsel for fees and expenses;

  6. supervision, evaluation, training and professional development;

  7. provision of or access to an appropriate library;

  8. a system of case management and reporting; and

  9. the grounds for termination of the contract by the parties.

Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations

105-10-5. Assigned Counsel Contracts

A public defender, the state appellate defender, and the designated conflicts office may, upon written authorization by the director, contract for services with qualified attorneys to undertake representation of indigent defendants to which each office has been appointed.

105-31-1. General Provisions

(a) The board may elect to contract with one or more private attorneys for the delivery of indigent defense services in any county, counties, or district when there is evidence that such contracting may be cost effective or that the assigned counsel panel lacks attorneys of sufficient expertise or number.

(b) The duration of the contract shall be set forth in the contract and shall be subject to availability of funds.

North Dakota Legal Counsel for Indigents Commission, Indigent Defense Guidelines and Procedures

4. Model Contract for Counsel Services for Indigent Defendants

This CONTRACT is made between the following law firms:

hereinafter referred to as FIRM; and the State of North Dakota through its authorized representative, the presiding judge of the __________________ Judicial District, hereinafter referred to as STATE (and the County of ___________________ through its authorized representative ____________________, hereinafter referred to as COUNTY).

1. FIRMS AND ATTORNEYS:

The FIRM includes the firms listed above which include the following attorneys who will provide services under this contract:

as well as, subject to the prior approval of the presiding judge of the Judicial District, any other duly licensed attorney who may be hired by the FIRM while this agreement is in force.

5. Guidelines for Establishment of Ad Hoc Advisory Committees

Application of Guidelines

The North Dakota Legal Counsel for Indigents Commission recommends that each presiding district judge or municipal judge who is either developing or continuing a contract system of delivering indigent defense services appoint an ad hoc advisory committee pursuant to the following guidelines to assist the judge in the development or continuation of a contract indigent defense system within the judge's jurisdiction.

Purpose of Guidelines

The appointment of an advisory committee will insulate the judge from any criticism based on patronage in the awarding of the indigent defense contract and promote collective participation among the judiciary, bar, and funding entity in the establishment or continuation of a contract system of delivering indigent defense services.

Guidelines

Washington Defender Association, Standards for Public Defense Services

Standard Five. Administrative Expenses

Contracts for public defense services should include the administrative costs associated with providing legal representation. These costs may include travel, telephones, law library, financial accounting, case management systems, the reporting requirements imposed by these standards, and other costs necessarily incurred in the day to day management of the contract.

Standard Eighteen. Guidelines For Awarding Defense Contracts

The county or city should award contracts for public defense services only after determining that the attorney or firm chosen can meet accepted professional standards. Under no circumstances should a contract be awarded on the basis of cost alone. Attorneys or firms bidding for contracts must demonstrate their ability to meet these standards.

Contracts should only be awarded to:

a) attorneys who have at least one year's criminal trial experience in the jurisdiction covered by the contract (i.e., City and District courts, Superior Court or Juvenile court), or

b) to a firm where at least one attorney has one year's trial experience.

City attorneys, county prosecutors, and law enforcement officers should not select the attorneys who will provide indigent defense services.

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2. Compensation

Commentary. Only two standards are directed at the compensation paid to the attorney working for the contractor. The NLADA Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services would pay contractor attorneys at a rate equal to attorneys who contract with other government agencies. The Indiana standards would compare salaries to those of the prosecuting attorney's office.

Washington state standards do not address attorney salaries, but instead direct attention to the problem of extraordinary cases.

NLADA Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services

Guideline III-10 Compensation

The contract shall provide that the Contractor compensate:

(b) attorneys at a minimum rate which reflects the following factors:

Guideline III-11 Special Case Compensation

The contract should provide for reasonable compensation over and above the normal contract price for cases which require an extraordinary amount of time and preparation, including, but not limited to, capital cases. Services which require special fees should be determined in the contract.

Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases

G. Compensation of Salaried or Contractual Public Defenders

The comprehensive plan shall provide that the salaries and compensation of salaried and contractual public defenders shall be substantially comparable to similar positions in the office of the Prosecuting Attorney. Compensation shall include, but is not limited to, reimbursement for reasonable office expenses and other reasonable, incidental expenses, e.g., photocopying, long-distance telephone calls, postage and travel.

Washington Defender Association, Standards for Public Defense Services

Standard One. Compensation

Contracts should provide for extraordinary compensation over and above the normal contract terms for cases which require an extraordinary amount of time and preparation, including, but not limited to, death penalty cases. Services which require extraordinary fees should be defined in the contract.

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3. Contract Termination and Minimum Term

Commentary. Contract providers can be particularly vulnerable to political pressures. Conflict between aggressively defending the client and protecting the economic self-interest of the contractor is an especial danger. However, provisions can be put into the contract to reduce these pressures. Hence, standards are needed to ensure that jurisdictions do not void the conflict unless good cause is demonstrated and that a minimum term for the contract is provided for. Of the one national and three state standards here, the NLADA, Georgia, and Washington standards agree on requiring good cause for termination. The North Dakota standards provide only for 90 days' notice before termination without cause. The NLADA and Georgia standards provide for a minimum term for the contract, and the North Dakota standards speak to the question of what happens to cases previously assigned if the contract is terminated. See also standards relating to the independence of the defense function supra. Other related standards include Arkansas Public Defender Commission, Minimum Standards, recommending a minimum two-year contract period.

NLADA Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services

Guideline III-4 Term of Contract

Contracts for legal defense service should be awarded for at least two year terms. Removal of the Contractor short of the agreed term should be for good cause only.

Guideline III-5 Definition of "Good Cause"

The Contract shall define "good cause" such as is required for removal of the Contractor (Guideline III-4) as: failure by the contractor to comply with the terms of the contract to an extent that the delivery of services to clients by the Contractor is impaired or rendered impossible, or a willful disregard by the Contractor of the rights and best interests of clients under this contract such as leaves them impaired. The individual actions of the Contractor or any one attorney taken in connection with one case alone shall not necessarily constitute "good cause" for removal.

Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent Defense Programs

Guideline 2.7 Contract Attorney Program

The local committee may elect to provide indigent defense services through a contract with an individual lawyer, or group of lawyers. Contracts for legal defense services should be awarded for at least a one year term. Removal of the Contractor short of the agreed term should be for good cause only.

The contract shall define "good cause" such as is required for removal of the Contractor as: failure by the Contractor to comply with the terms of the contract to an extent that the delivery of services to clients by the Contractor is impaired or rendered impossible, or a willful disregard by the Contractor of the rights and best interest of clients under this contract such as leaves them impaired. The individual actions of the Contractor or any one attorney taken in connection with one case alone shall not necessarily constitute "good cause" for removal.

North Dakota Legal Counsel for Indigents Commission, Indigent Defense Guidelines and Procedures

Guideline 4. Model Contract

10. Contract Term:

The duration of this contract is from July l, _____ through June 30, _____ (preferably two years) and is renewable for an additional period of ______________ at the option of both parties in writing on the following terms:

All necessary counsel services listed in Section 4 above for cases or proceedings for which appointments are made to the FIRM on or before June 30, _____ must be completed as part of this contract.

22. Termination of Contract:

Any party may terminate this CONTRACT immediately for cause at any time. Any party may terminate the CONTRACT without cause by 90 days written notice. All cases assigned and not completed within 90 days after expiration or notice of termination of the CONTRACT may be completed following consultation between the parties:

A. By the FIRM assigned to the case before expiration of the CONTRACT;

B. On an assigned counsel basis;

C. By inclusion of the uncompleted cases in any subsequent contract; or

D. Through any combination of A, B, or C.

Washington Defender Association, Standards for Public Defense Services

Standard Sixteen. Cause for Termination or Removal of Attorney

Contracts for defense services shall include the grounds for termination of the contract by the parties. Termination of an attorney's contract should only be for cause. Good cause shall include the failure of the attorney to render adequate representation to clients; the willful disregard of the rights and best interests of the client; and the willful disregard of the standards herein addressed.

The representation in an individual case establishes an inviolable attorney-client relationship. Removal of counsel from representation therefore normally should not occur over the objection of the attorney and the client.

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4. Contracting Procedures

Commentary. In order to minimize political involvement, some standards outline the procedures to be used for awarding contracts or require jurisdictions to determine and publish procedures for awarding contracts. In addition to the standards here, the North Dakota guidelines elsewhere in this volume detail contracting procedures. Indiana Standard L also calls for publishing the procedures for awarding of contracts, and Washington State Standard 18 prohibits certain classes of government officials from being involved in selecting the contractors.

ABA Standards for Criminal Justice: Providing Defense Services

Standard 5-3.2. Contracting parties and procedures

(a) The contracting authority and each contractor should be identified in the contract. Procedures for the award of contracts should be published by the contracting authority substantially in advance of the scheduled date of award.

(b) The contracting authority should ensure the professional independence of the contractor by means of a board of trustees, as provided in standard 5-1.3.

(c) The contracting parties should avoid provisions that create conflicts of interest between the contractor and clients.

Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases

L. Contracts

The comprehensive plan shall contain provisions for contracts for defense services under I.C. 33-9-10, in the event that such contracts are used. The plan shall provide that contracts not be awarded primarily on the basis of costs and shall otherwise ensure quality legal representation. Procedures for the award of contracts should be published by the contracting authority substantially in advance of the scheduled date of award.

Kansas Board of Indigents' Defense Services, Permanent Administrative Regulations

105-31-1. Awarding the Contract

(a) The board shall not pursue a contract through the competitive bidding process but only through negotiation.

(b) Contracts to individual attorneys or firms shall be awarded on the basis of:

(1) the experience and qualifications of the attorney or firm;

(2) the willingness and ability of the attorney or firm to comply with the performance criteria and statistical reporting provisions of the contract; and

(3) the negotiated rate of compensation.

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5. Contract Provisions

Commentary. The heart of defense services contracting is, of course, the contract elements. Several standards direct detailed attention to this topic. The most detailed is Part III of the NLADA Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services. See also, Vermont Defender General, "Contract for Personal Services."

ABA Standards for Criminal Justice: Providing Defense Services

Standard 5-3.3. Elements of the Contract for Services

(a) Contracts should include provisions which ensure quality legal representation and fully describe the rights and duties of the parties, including the compensation of the contractor.

(b) Contracts for services should include, but not be limited to, the following subjects:

NLADA Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services

Part III: Elements of a Contract for Public Defense Services

Each of the following Guidelines should be included in a contract for public defense services. If contracts are to be awarded through some kind of bidding, RFP, or other competition, these should serve as the basis for the RFP or bidding document. Contracts should be awarded on the basis of the completeness and adequacy of a Contractor's consideration of these Guidelines.

Guideline III-1 Parties

The contract should identify the Contracting Authority, the Contractor, and any other public or private person, agencies or organizations which are party to the contract.

Guideline III-2 Scope of Contract

The contract should specify the categories of cases in which the Contractor is to provide services.

Guideline III-3 Determination of Eligibility

The Contract should specify the procedure by which client financial eligibility is to be determined and the person, officer or agency responsible for making the determination initially and at subsequent review proceedings. The contract should either incorporate eligibility standards by reference to those in accepted use or it should specify the eligibility standard applicable in all cases handled by the Contractor. The contract should provide that any information or statements of the defendant obtained in the process of determining eligibility shall be considered confidential and privileged.

Guideline III-4 Term of Contract

Contracts for legal defense service should be awarded for at least two year terms. Removal of the Contractor short of the agreed term should be for good cause only.

Guideline III-5 Definition of "Good Cause"

The Contract shall define "good cause" such as is required for removal of the Contractor (Guideline III-4) as: failure by the Contractor to comply with the terms of the contract to an extent that the delivery of services to clients by the Contractor is impaired or rendered impossible, or a willful disregard by the Contractor of the rights and best interests of clients under this contract such as leaves them impaired. The individual actions of the Contractor or any one attorney taken in connection with one case alone, shall not necessarily constitute "good cause" for removal.

Guideline III-6 Allowable Caseloads

The contract should specify a maximum allowable caseload for each full-time attorney, or equivalent, who handles cases through the contract. Caseloads should allow each lawyer to give every client the time and effort necessary to provide effective representation. Attorneys employed less than full-time on handling a mix of cases should handle a proportional caseload.

Guideline III-7 Minimum Professional Qualifications

The Contract should specify minimum qualifications for staff lawyers. These qualifications should be developed by the Advisory Board which screens contract applications. If defense services are to be provided in more than one category of cases, the contract should specify different minimum-qualifications for each category of cases for which the Contractor will provide services.

Guideline III-8 Support Staff and Forensic Experts

The contract should provide for employment of secretaries, social work staff, mental health professionals, forensic experts and support staff to perform tasks not requiring legal credentials or experience and tasks for which support staff and forensic experts possess special skills. Such skills are particularly important in ensuring effective performance of defense counsel at the bail, pretrial release, investigation and sentencing stages, and in the preparation of dispositional plans.

(a) Secretaries. The contract should provide an adequate number of secretaries to ensure competent representation to clients and adequate assistance to attorneys.

(b) Social Service Personnel. The contract should provide an adequate number of social service personnel to assist…clients.

(c) Mental Health Professionals. The contract should specifically include funds for confidential hiring of mental health professionals to perform evaluations and to assist at trial, unless mental health professionals are provided to the contractor to perform mental evaluations by court order or otherwise upon request.

(d) Forensic and Other Experts. The contract should specifically include funds for confidential hiring of forensic and other experts and for the use of forensic experts at trial.

Guideline III-9 Investigators

The contract should specify that adequate investigation services necessary to provide competent representation shall be available to the Contractor. No contract clause should interfere with the contracting attorneys' selection, supervision, or direction of investigators.

Guideline III-10 Compensation

The contract shall provide that the Contractor compensate:

(a) its staff, employees, subcontractors and retained forensic experts at rates commensurate with their training, experience and responsibilities and with compensation paid to persons doing similar work in public agencies in the jurisdiction;

(b) attorneys at a minimum rate which reflects the following factors:

Guideline III-11 Special Case Compensation

The contract should provide for reasonable compensation over and above the normal contract price for cases which require an extraordinary amount of time and preparation, including, but not limited to, capital cases. Services which require special fees should be determined in the contract.

Guideline III-12 Case and Work-Overload

The contract should provide that the Contractor may decline to represent clients at no penalty in the event that during the contract:

(a) the caseload assigned to the Contractor exceeds the allowable caseloads specified through the process recommended in Guideline III-5; or

(b) the Contractor is assigned more cases requiring an extraordinary amount of time and preparation than the Contractor can competently handle even with payment of extraordinary compensation as specified in Guideline III-11; or

(c) the cases assigned to the Contractor exceed any number that the contract specified or that the Contractor and Contracting Authority reasonably anticipated at the time the contract was concluded.

Guideline III-12 Duration of Representation

The contract shall specify that the Contractor has the responsibility to complete any and all cases once representation is commenced under terms of the contract. Representation commenced by the Contractor in trial court shall be continued through all trial court proceedings if provided by the contract; representation commenced by or taken to an appeal court by the Contractor shall be continued until the appeals process is terminated by an act of the appeals court which is accepted as final on the merits by defense counsel and his or her client.

Nothing in this Guideline shall prohibit a Contractor or attorney from withdrawing from a case in which a court has recognized a conflict of interest for the attorney or in which defendant is found to be ineligible for services as defined in Guideline III-3.

Guideline III-13 Conflicts of Interest

The contract should avoid creating conflicts of interest between Contractor or individual defense attorney and clients. Specifically:

(a) expenses for investigations, expert witnesses, transcripts and other necessary services for the defense should not decrease the Contractor's income or compensation to attorneys or other personnel; and

(b) contracts should not, by their provisions or because of low fees or compensation to attorneys, induce an attorney to waive a client's rights for reasons not related to the client's best interest; and

(c) contracts should not financially penalize the Contractor or individual attorneys for withdrawing from a case which poses a conflict of interest to the attorney.

Guideline III-14 Payment

The contract should provide that payments to the Contractor be made monthly or at times agreed to by the parties without regard to the number of cases closed in the period.

Guideline III-15 Financial Records

The contract shall provide that the Contractor shall retain financial records, submit financial reports, and produce an Annual financial evaluation or audit.

Guideline III-16 Supervision and Evaluation

The contract should establish a procedure for internal systematic supervision and evaluation of the performance of the Contractor's staff based upon publicized criteria. Supervision and evaluation efforts should include monitoring of time and caseload records, review and inspection of transcripts, an evaluation of attorney case activity, in-court observations, and periodic conferences. A system of performance evaluations should be based upon personal monitoring by the Contractor's Director or Chief Attorney and should be augmented by regular, formalized comments by judges, prosecutors, other defense lawyers and clients. The criteria of performance employed should be those of a skilled and knowledgeable criminal lawyer.

Guideline III-17 Professional Development

The contract should provide funds and sufficient staff-time to permit systematic and comprehensive training to attorneys and professional staff. Resources for training should be no less than is provided to prosecutors and judges in the jurisdiction, and should include continuing legal education programs, attendance at local training programs, and the opportunity to review training and professional publications and tapes. Where appropriate and where the size of the contract program requires, all attorneys should be required to attend an intensive, entry-level training program.

Guideline III-18 Standards of Recommendation

The contract shall require that the Contractor provide defense services to all clients in a professional, skilled manner consistent with minimum standards set forth by the American Bar Association, any applicable state bar association standards, the canons of ethics for attorneys in the state of the contract, and case law and applicable court rules defining the duties of counsel and the rights of defendants in criminal cases. The contract shall provide that counsel under contract shall be available to eligible defendants at their request, or the request of someone acting on their behalf, beginning at questioning, arrest, formal charging, or indictment. The Contracting Authority or the Contractor, as appropriate, shall ensure that attorneys provided by the contract shall be accessible to defendants before formal court appointment.

Guideline III-19 Confidentiality

The contract should prohibit the Contractor from releasing confidential attorney-client information or work product related to any case, except under a legal court order to do so, or after receiving a voluntary, knowing, and intelligent waiver from the client in the case, or to a subsequent attorney on the case.

Guideline III-20 Insurance

The contract may require that the Contractor provide malpractice insurance for attorneys representing clients under terms of the contract. The contract shall not provide that the Contractor hold the government or Contracting Authority harmless for the attorneys' representation of defendants.

Guideline III-21 Retention of Files

The contract shall provide that the Contractor provide for retention of client files in a manner that affords protection of the client's confidentiality interests (see Guideline III-17) for a specified period of time after the conclusion of the case at least equal to the period provided in rules governing all other lawyers' files in the jurisdiction but in no event less than five years.

Guideline III-22 Management System

The contract shall provide that the Contractor shall maintain a case reporting and management information system, data from which shall be available to, or provided to, the Contracting Authority and Policy Board. Any such system shall be maintained independently from client files so as to disclose no confidential or privileged information. The case reporting and management information system shall be used to provide the Contractor, the Contracting Authority and the Policy Board with caseload information sufficient to assure compliance with Guidelines III-3, III-5, III-14, and III-16 particularly.

Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases

L. Contracts

The comprehensive plan shall contain provisions for contracts for defense services under I.C. 33-9-10, in the event that such contracts are used…. The contracting parties should avoid provisions that create conflicts of interest between the contractor and clients. Contracts for services should include, but not be limited to, the following subjects:

  1. the categories of cases in which the contractor is to provide services;

  2. the term of the contract and the responsibility of the contractor for completion of cases undertaken within the contract term;

  3. the basis and method for determining eligibility of persons served by the contract;

  4. identification of attorneys who will perform legal representation under the contract and prohibition of substitution of counsel without prior approval;

  5. a policy for conflict of interest cases and the provision of funds outside of the contract to compensate conflict counsel for fees and expenses;

  6. supervision, evaluation, training and professional development;

  7. provision of or access to an appropriate library;

  8. a system of case management and reporting; and

  9. the grounds for termination of the contract by the parties.

New York City Indigent Defense Organization Oversight Committee, General Requirements for All Organized Providers of Defense Services to Indigent Defendants

Standard IX. Compliance with Standards of Professional Responsibility

. . .

B. Evaluation Criteria

North Dakota Legal Counsel for Indigents Commission, Indigent Defense Guidelines and Procedures

Guideline 4. Model Contract for Counsel Service for Indigent Defendants

2. Services Covered:

The FIRM shall provide legal services for indigent defendants in the following categories of case:

3. Services Excluded:

The following services are excluded from this contract:

4. Representation:

Representation will be made at all stages of the proceeding until completed. The FIRM shall include necessary representation of each indigent defendant in matters of investigation, trial preparation, preparation and filing of motions, arguments of motions, personal counsel and referral to other agencies when appropriate, referral to appropriate agencies, trial, post-trial motions, and motions, briefing and argument in the North Dakota Supreme Court and any retrials following an appeal. This includes preparation of all briefs, documents, letters, research and any and all things regarded as adequate representation of the indigent party.

13. Costs and Expenses:

The FIRM will pay for all costs, fees and expenses incurred in providing the contract services, except for the following expenses which will be paid by the STATE (and COUNTY):

Mileage, meals and lodging expenses will be paid at the same rate as allowed by Section 54-06-09, NDCC, for state employees.

Costs and expenses in cases and proceedings which are prosecuted in district court will be paid by the STATE. Costs and expenses in cases and proceedings which are the responsibility of the county will be paid by the COUNTY.

14. Special Case Compensation:

The FIRM may apply to the Presiding Judge of the judicial district for reasonable compensation over and above the normal contract price for cases which require an extraordinary amount of time and preparation. The Presiding Judge shall have complete discretion in determining the amount of additional compensation to be paid, if any. In no case will the Presiding Judge approve additional compensation where the number of hours expended on the case by the FIRM does not exceed _____ hours. Other factors that will be considered by the Presiding Judge in making its determination include the complexity of the legal issues and the intricacy of the factual situation involved in the case.

Applications must be in writing and submitted to the Presiding Judge at the completion of the representation of the case, unless the financial burden of the case is such that it may adversely affect the ability of the FIRM to provide adequate representation in the case. The application must include the individual case records maintained in the case under Section 17 of this contract and a statement by the FIRM of the justification for the application.

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6. Prohibition on Substitution of Attorneys

Commentary. Both Indiana and Washington limit the use of counsel who are not named or otherwise included in the contract.

Indiana Public Defender Commission, Standards for Indigent Defense Services in Non-Capital Cases

L. Contracts

…Contracts for services should include, but not be limited to, the following subjects:

4. identification of attorneys who will perform legal representation under the contract and prohibition of substitution of counsel without prior approval;

Washington Defender Association, Standards for Public Defense Services

Standard Twelve. Substitution of Attorneys or Assignment of Contracts

The attorney engaged by local government to provide public defense services should not sub-contract with another firm or attorney to provide representation and should remain directly involved in the provision of representation. If the contract is with a firm or office, the contracting authority should request the names and experience levels of those attorneys who will actually be providing the services, to ensure they meet minimum qualifications. The employment agreement shall address the procedures for continuing representation of clients upon the conclusion of the agreement.

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7. Related Provisions

Commentary. Related standards address limits on private practice, nondiscrimination guarantees by the contractor, and exclusion of capital cases from the contract. The Washington nondiscrimination requirement is probably redundant in states with a generally applicable policy of requiring government contractors to act in a nondiscriminatory manner.

Georgia Indigent Defense Council, Guidelines for the Operation of Local Indigent Defense Programs

Guideline 2.7 Contract Attorney Program

Inclusion of capital felonies where the death penalty is sought as a portion of the contract is prohibited.

Washington Defender Association, Standards for Public Defense Services

Standard Thirteen. Limitations of Private Practice of Contract Attorneys

Contracts for public defense representation with private attorneys or firms shall set limits on the amount of privately retained work which can be accepted by the contracting attorney. These limits shall be based on the percentage of a full-time caseload which the public defense cases represent.

Standard Seventeen. Non-discrimination

Neither the Contracting Authority, in its selection of an attorney, firm or agency to provide public defense representation, nor the attorneys selected, in their hiring practices or in their representation of clients, shall discriminate on the grounds of race, color, religion, national origin, age, marital status, sex, sexual orientation or handicap. Both the contracting authority and the contractor shall comply with all federal, state, and local non-discrimination requirements.

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