E. Workload
Limitations on the number of cases an attorney should accept are a common standard for trial attorneys. (See Compendium Volume I, "Standards on the Administration of Defense Services.") However, special problems relating to workload limitations and distribution exist in capital cases.
The standards in this section address the following topics:
1. Requirement That Workload Not Be Excessive
Commentary. The ABA and Louisiana standards set forth general principles that speak to how excessive caseloads can interfere with proper representation in capital cases. In contrast, the Nebraska standards set forth statistical expectations for the number of death penalty cases an attorney can be expected to handle. See also, Indiana Rules of Criminal Procedure, Rule 24: Capital Cases, Section (B)(3), (J)(2). Compare ABA Defense Services Standard 5-53(a) providing that "special consideration should be given to the workload created by representation in capital cases."
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 6.1 Workload
Attorneys accepting appointments pursuant to these Guidelines should provide each client with quality representation in accordance with constitutional and professional standards. Capital counsel should not accept workloads which, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations.
Louisiana Indigent Defender Board, Standards on Indigent Defense
Part IX. Workload. The following standards shall serve as guides to attorneys eligible for appointment in capital cases.
Standard 7-9.1. Professional Obligation. Attorneys accepting appointments pursuant to these standards should provide each indigent client with quality representation in accordance with constitutional and professional standards. Capital counsel should not accept workloads which, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations.
Standard 7-9.2. Determination of Workload. To determine maximum workload, an attorney should consider, among other factors, quality of representation, speed of turnover of cases, percentage of cases tried, extent of support services available, court procedures, and involvement in complex litigation.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard III. Operating Policies and Procedures
A. Caseload Standards for the Commission
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2. Recommended Caseload Standards
The Commission recognizes that the cases it will accept will not likely fall into the general caseload statistical categories which compare the percentage of cases in which a plea is entered to the percentage of cases which go to trial. …[T]he cases themselves will be more complex since the Commission will be handling serious felony, with sizeable records; this too will reduce the normal caseload. These assumptions also hold true for the appellate attorneys. The more complex the cases and the larger the record, fewer appeals can be handled by the appellate attorneys. Therefore, the following yearly caseload standards, per attorney, are recommended, with the understanding that the Commission will be monitoring these standards very carefully over the next year, since there is no history to rely upon, making them subject to change:
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b. Litigation capital attorney--2 to 3 first degree murder death penalty cases, and an additional 2 to 3 first degree murder, non-death penalty cases (4 first degree non-death penalty cases equal 1 first degree death penalty case). Under no circumstance more than 3 death penalty cases and 1 non-death penalty case at any given time.
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d. Appellate capital attorney--a combination of 2 to 3 first degree murder death penalty appeals, and 2 to 3 first degree non-death penalty appeals (4 first degree non-death penalty appeals equal 1 first degree death penalty appeal). Under no circumstance more than 3 death penalty appeals and 1 non-death penalty appeal at any given time.
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D. Workload
Attorneys accepting appointments pursuant to these Guidelines should provide each client with quality representation in accordance with constitutional and professional standards. Capital counsel should not accept workloads which, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations.
2. Specification of the Number of Attorneys per Case
Commentary. There is relatively strong agreement among those groups adopting death penalty standards that two attorneys should be appointed in these cases. See also, Kansas Regulation 105-3-12 (supra) authorizing appointment of co-counsel. The Georgia guidelines do not speak directly to the point but generally refer to the ABA standards for direction (Georgia Guideline 2.4, supra). The Washington state standards refer to "lead counsel," implying two counsel to represent defendant, Standard 14, supra. The Indiana standards, the New York Court of Appeals standards, and the New York City requirements do not refer to the number of counsel to be appointed. See also, Utah Rules of Criminal Procedure, Rule 8(b); Arkansas Public Defender Commission, Minimum Standards, Attorney Qualification Certification Criteria, "Number of Attorneys per Case"; Indiana Rules of Criminal Procedures, Rule 24(B); and North Carolina General Statutes §7A-450(b)(1) for an endorsement of the two-attorney standard.
In addition, the Alameda County Bar Association Rules and Regulations of the Court Appointed Attorneys' Program and the Eleventh Judicial Circuit of Florida Circuit Conflict Committee Policies and Procedures seem to implicitly accept a two-attorney appointment by providing separate eligibility criteria for lead and assistant counsel. The Philadelphia General Court Regulation 89-3 authorizes lead counsel to seek appointment of a second attorney from the court when the death penalty is sought, but does not require such appointment.
ABA Standards for Criminal Justice: Providing Defense Services
Standard 5-6.1 Initial Provision of Counsel
…In capital cases, two qualified trial attorneys should be assigned to represent the defendant. The authorities should promptly notify the defender, the contractor for services, or the official responsible for assigning counsel whenever the person in custody requests counsel or is without counsel.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
Guideline 2.1 Number of Attorneys Per Case
In cases where the death penalty is sought, two qualified trial attorneys should be assigned to represent the defendant. In cases where the death penalty has been imposed, two qualified appellate attorneys should be assigned to represent the defendant. In cases where appellate proceedings have been completed or are not available and the death penalty has been imposed, two qualified postconviction attorneys should be assigned to represent the defendant.
Federal Judicial Conference Committee on Defender Services, Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation
1. Qualifications for Appointment
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b. Qualifications of Counsel. As required by statute, at the outset of every capital case, courts should appoint two counsel, at least one of whom is experienced in and knowledgeable about the defense of death penalty cases. Ordinarily, "learned counsel" should have distinguished prior experience in the trial, appeal, or postconviction review of federal death penalty cases, or distinguished prior experience in state death penalty trials, appeals, or postconviction review that, in combination with co-counsel, will assure high quality representation.
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3. Appointment of More Than Two Lawyers
Number of Counsel. Courts should not appoint more than two lawyers to provide representation to a defendant in a federal death penalty case unless exceptional circumstances and good cause are shown. Appointed counsel may, however, with prior court authorization, use the services of attorneys who work in association with them, provided that the employment of such additional counsel (at a reduced hourly rate) diminishes the total cost of representation or is required to meet time limits.NLADA Standards for the Appointment and Performance of Counsel in Death Penalty Cases
Standard 2.1 Number of Attorneys Per Case
In cases where the death penalty is sought, two qualified trial attorneys should be assigned to represent the defendant. In cases where the death penalty has been imposed, two qualified appellate attorneys should be assigned to represent the defendant. In cases where appellate proceedings have been completed or are not available and the death penalty has been imposed, two qualified postconviction attorneys should be assigned to represent the defendant.
Louisiana Indigent Defender Board, Standards on Indigent Defense
Part VIII. Number of Attorneys for Capital Defense. The following number of attorneys should be appointed in cases involving an indigent defendant charged with a capital crime or where an appeal has been lodged in a case where the death penalty has been imposed.
Standard 7-8.1. Trial Counsel. In cases where a defendant is charged with a crime for which the death penalty may be imposed, not less than two certified trial attorneys, one of which must be certified trial lead counsel in accordance with this Chapter, shall be assigned to represent the defendant.
Standard 7-8.2. Appellate Counsel. In cases where the death penalty has been imposed on an indigent defendant and an appeal has been taken, an attorney, certified as appellate lead counsel in accordance with this Chapter, shall be assigned to represent the defendant. It is recommended, but not mandated, that a certified appellate associate counsel be assigned to assist in the appeal, although the degree of participation of the associate counsel may be less than lead counsel.
Nebraska Commission on Public Advocacy, Standards for Indigent Defense Services in Capital and Non-Capital Cases
Standard III. Operations Policies and Procedures
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B. Number of Attorneys per Case
In cases where the death penalty is sought, two qualified trial attorneys should be assigned to represent the defendant. In cases where the death penalty has been imposed, two qualified appellate attorneys should be assigned to represent the defendant. In cases where appellate proceedings have been completed or are not available and the death penalty has been imposed, two qualified postconviction attorneys should be assigned to represent the defendant.
Virginia Public Defender Commission, Standards for the Qualifications of Appointed Counsel in Capital Cases
Preface
While…Virginia Code…does not require more than one attorney, the appointment of two attorneys is strongly urged for trial, appellate and habeas proceedings.