A. Function of Standards
The standards in this section address the following topics:
1. Use of Standards
Commentary. The two standards below state that their provisions are intended to be used in some instances but not others.
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4-1.1 The Function of the Standards
These standards are intended to be used as a guide to professional conduct and performance. They are not intended to be used as criteria for the judicial evaluation of alleged misconduct of defense counsel to determine the validity of a conviction. They may or may not be relevant in such judicial evaluation, depending upon all the circumstances.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
IV. Performance Standards and Complaint Procedures
These guidelines are intended for use by the committee for Public Counsel Services in evaluating, supervising and training counsel assigned. Counsel assigned…must comply with these guidelines and the Massachusetts Rules of Professional Conduct. In evaluating the performance or conduct of counsel, the Committee for Public Counsel Services will apply these guidelines and the Massachusetts Rules of Professional conduct, as well as all CPCS policies and procedures included in this manual and other CPCS publications.
2. Functions of Defense Counsel
Commentary. The standards below set the parameters for attorney performance standards by defining the overall objectives that counsel should aspire to. The specific standards that follow are efforts to operationalize the goals set forth here. See also, Missouri State Public Defender, Guidelines for Representation (1992), General Principles of Representation 1.1. Note: in the main, the Missouri guidelines are redundant with other standards, even using their exact language. Compare, for example, Missouri Guideline 1.3, Education, Training, and Experience of Public Defenders, to Massachusetts Assigned Counsel Manual Policy IV. A. 1.2, Performance Standards, General Principles of Representation: Education, Training, and Experience of Defense Counsel. Because of such similarities, this volume references but does not reprint the Missouri guidelines.
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4-1.2 The Function of Defense Counsel
(a) Counsel for the accused is an essential component of the administration of criminal justice. A court properly constituted to hear a criminal case must be viewed as a tripartite entity consisting of the judge (and jury, where appropriate), counsel for the prosecution, and counsel for the accused.
(b) The basic duty defense counsel owes to the administration of justice and as an officer of the court is to serve as the accused's counselor and advocate with courage and devotion and to render effective, quality representation.
(c) Since the death penalty differs from other criminal penalties in its finality, defense counsel in a capital case should respond to this difference by making extraordinary efforts on behalf of the accused. Defense counsel should comply with the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.
(d) Defense counsel should seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to defense counsel's attention, he or she should stimulate efforts for remedial action.
(e) Defense counsel, in common with all members of the bar, is subject to standards of conduct stated in statutes, rules, decisions of courts, and codes, canons, or other standards of professional conduct. Defense counsel has no duty to execute any directive of the accused which does not comport with law or such standards. Defense counsel is the professional representative of the accused, not the accused's alter ego.
(f) Defense counsel should not intentionally misrepresent matters of fact or law to the court.
(g) Defense counsel should disclose to the tribunal legal authority in the controlling jurisdiction known to defense counsel to be directly adverse to the position of the accused and not disclosed by the prosecutor.
(h) It is the duty of defense counsel to know and be guided by the standards of professional conduct as defined in codes and canons of the legal profession applicable in defense counsel's jurisdiction. Once representation has been undertaken, the functions and duties of defense counsel are the same whether defense counsel is assigned, privately retained, or serving in a legal aid or defender program.
Standard 4-1.6 Trial Lawyer's Duty to Administration of Justice
(a) The bar should encourage through every available means the widest possible participation in the defense of criminal cases by lawyers. Lawyers should be encouraged to qualify themselves for participation in criminal cases both by formal training and through experience as associate counsel.
(b) All such qualified lawyers should stand ready to undertake the defense of an accused regardless of public hostility toward the accused or personal distaste for the offense charged or the person of the defendant.
(c) Such qualified lawyers should not assert or announce a general unwillingness to appear in criminal cases. Law firms should encourage partners and associates to become qualified and to appear in criminal cases.
(d) Such qualified lawyers should not seek to avoid appointment by a tribunal to represent an accused except for good cause, such as: representing the accused is likely to result in violation of applicable ethical codes or other law, representing the accused is likely to result in an unreasonable financial burden on the lawyer, or the client or crime is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.
NLADA Performance Guidelines for Criminal Defense Representation
Guideline 1.1 Role of Defense Counsel
(a) The paramount obligation of criminal defense counsel is to provide zealous and quality representation to their clients at all stages of the criminal process. Attorneys also have an obligation to abide by ethical norms and act in accordance with the rules of the court.
Connecticut Public Defender Services Commission, Guidelines on Indigent Defense
Guideline 1.1. Role of Defense Counsel
(a) All counsel should abide by the policies adopted by the Connecticut Public Defender Services commission and the Chief Public Defender in regard to the representation of a client.
(b) Counsel should zealously represent and advocate for each client and render effective assistance of counsel.
(c) Counsel should adhere to the Rules of Professional Conduct and other guidelines of professional conduct stated in statutes, rules, court decisions, codes or canons.
(d) Counsel should act with reasonable diligence and promptness in representing a client.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
1.1 Role of Defense Counsel
Counsel's role in the criminal justice system is to ensure that the interests and rights of the client are fully protected and advanced. Counsel's personal opinion of the client's guilt is totally irrelevant. The client's financial status is of no significance. Indigent clients are entitled to the same zealous representation as clients capable of paying an attorney. Counsel must know and adhere to all applicable ethical opinions and standards and comply with all the rules of the court. Where appropriate, counsel may consider a legal challenge to inappropriate rules and/or opinions. If in doubt about ethical issues in a case, counsel should seek guidance from other experienced counsel or from the Board of Bar Overseers. Counsel shall interpret any good-faith ambiguities in the light most favorable to the client.
New Mexico Public Defender Department, Performance Guidelines for Criminal Defense Representation
Guideline 1.1 Role of Defense Counsel
The paramount obligation of criminal defense counsel is to provide zealous and quality representation to their clients at all stages of the criminal process. Attorneys also have an obligation to abide by ethical norms and act in accordance with the rules of the court.