Low-Bid Criminal Defense Contracting:
Justice In Retreat
Report for Presentation to National, State and Local Bar AssociationsOctober, 1997
by
National Association of Criminal Defense Lawyers
The nightmarish image of lawyers competing for criminal court appointments to
defend poor persons accused of crimes by underbidding each other -- and selling
out justice -- is fast becoming a reality. To uphold the Constitution and the
integrity of the legal profession, and to ensure due process under law, professional
bar associations must rally to block and reverse this imminent threat to our
cherished justice system in America.
Criminal defense for the poor -- an absolute constitutional mandate(1) -- has deteriorated markedly in recent years.(2) Maximum caseload standards(3) are routinely ignored,(4) needed experts are underutilized(5) and prolonged appellate delays are commonplace.(6) Compounding the growing crisis is the recent and alarming rise in low-bid contracting for legal services for the poor. One or more attorneys agrees to represent all or a portion of a jurisdiction's caseload for a low fixed price. The idea is to process the maximum number of defendants at the lowest cost -- without regard to truth, justice or innocence.
This trend threatens the modest gains in quality representation obtained following the
Supreme Court's unequivocal mandate in Gideon. To reverse it, national, state and local bar
associations must move beyond hand-wringing and begin an affirmative campaign to enforce
existing Rules of Professional Responsibility, and consider new ones to deal with the more salient
abuses of due process and equal justice under the law.
Low-Bid Contracting on the Rise
Virtually unknown prior to the 1980s, the use of low-bid contract defense systems for criminal cases has since proliferated, driven by a "war on crime" national psyche notably favoring law enforcement, prosecution and prison construction -- while skimping on the essential Sixth Amendment mandate guaranteeing American citizens the right to counsel. Understandable criticism has followed:
[M]ost of these early contracts were not accompanied by any criteria for awarding the contract, for monitoring performance, for dealing with any unanticipated rise or fall in caseload, or for contract renewal or termination. . . . The desire for economy in services all too often overrrode constitutional obligations.(7)
Numerous bar association, government and academic studies have now documented the failure of purely cost-driven contract systems to provide quality representation.(8) The most glaring, and recurring flaws include:
Despite these intrinsic flaws, low-bid contract systems continue to proliferate in jurisdictions across
the country which find themselves financially-strapped and seek a quick-fix to budget pressures.
More than half the states now have one or more court systems with contract programs. Quality legal
services to the poor, having never had a very strong constituency, are increasingly being sacrificed
on the altar of cost-cutting in order to avoid raising taxes or to preserve other, more popular
educational, cultural or civic programs.
Contracting Standards
Reacting to the troublesome rise in low quality, low budget criminal defense contracts, the National Association of Criminal Defense Lawyers,(9) the National Legal Aid and Defender Association,(10) and the American Bar Association(11) have explicitly opposed cost-driven contracting. These organizations have promulgated Standards and Guidelines aimed at ensuring quality legal representation. NACDL's Assigned Counsel Policies, for example, include the admonition:
If contracts for services of defense counsel are a component of a jurisdiction's legal representation plan, such contracts should ensure quality legal representation. Contracts should not be awarded primarily on the basis of cost, and should include terms requiring contractors to maintain standards necessary to deliver quality vertical representation and to comply with standards of professional responsibility, including: maximum caseloads; minimum levels of experience and ongoing training; reasonable compensation, including provision for additional compensation in the event of unforeseen extraordinary circumstances; and sufficient support services and expenses for investigative services, expert witnesses and other litigation expenses.(12)
ABA & NLADA Performance Standards
Apart from policies, standards and guidelines intended to promote quality legal representation of
persons who can't afford private counsel, performance standards -- applicable to all criminal
defense representation, retained or appointed -- specify detailed professional duties of defense
counsel.(13) They provide step-by-step guides to criminal defense representation -- from the first
contact with the client through pretrial release, investigation and preparation, motions, negotiation,
trial; and, if necessary, sentencing and appeal. More detailed standards define professional behavior
and reference the ABA Model Rules of Professional Conduct.(14) But an attorney who has contracted
for hundreds more cases than can be competently handled doesn't have time to even read the
guidelines, let alone communicate effectively with each client, investigate each allegation, research
and litigate each relevant legal defense, and generally perform at a level of professional excellence.
Professional Discipline -- Caseloads, Investigators, Experts
Performance standards are not mandatory disciplinary codes per se.(15) They often track the language of enforceable discipline rules. ABA Defense Function Standards 4-1.3 and 4-3.8, for example, recite and explain the professional mandates of diligence, promptness, and effective client communication, and the necessity to avoid excessive caseloads (referencing Model Rules 1.3 and 1.4). "A lawyer's workload should be controlled so that each matter can be handled adequately." Model Rule 1.3, Commentary. "[I]t is improper for defense counsel to accept so much work that the quality of representation or counsel's professionalism is in any way diminished for that reason." Defense Function Standard 4-1.3. Any defense attorney (whether contractor or not) whose excessive caseload makes compliance impossible risks disciplinary action.
The duty to investigate is similarly set out in the applicable Standards:
Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. . . . The duty to investigate exists regardless of the accused's admissions or statements to defense counsel of the facts constituting guilt or the accused's stated desire to plead guilty.
ABA Standard 4-4.1(a) (referencing ABA Model Code of Professional Responsibility EC 4-1 (1969)).
And when the investigation required involves interviewing witnesses who may recant or equivocate at trial (virtually any witness), the lawyer who acts alone -- instead of utilizing a professional investigator -- is placed in the position of personally impeaching the witness, in violation of Model Rule 3.7, which forbids a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness. As explained in the Commentary to ABA Standard 4-4.3:
The availability of a third person is virtually the only effective means of impeaching an adverse witness. Defense counsel is in an exceedingly difficult situation in seeking leave to withdraw and to substitute other counsel and to substitute other counsel in order to take the stand to relate what the adverse witness previously said to the lawyer.
So a defense services contract that does not provide for adequate investigation funds -- apart from legal fees -- is a contract that should not be signed (or proposed) by an ethical attorney.
Expert witnesses are also necessary -- to competently grasp and contest the state's
allegations. In our adversarial system of justice, due process requires the state to provide to
defendants' who can't afford their own counsel the "basic tools,"(16) and the "raw materials"(17)
necessary to construct a defense. Experts must be available to assist in evaluation, preparation, and
presentation(18) of the defense,(19) in order to meet professional standards and fulfill the professional
responsibility mandates of the Model Rules.(20) Defense services contracts that fail to provide for such
essential resources should not be entered into by ethical attorneys.
Failure of Professional Discipline
The national crisis in public defender case overloads places overburdened lawyers in the impossible situation of having to choose which clients to represent with diligence, and which to neglect; which cases to investigate, and which to ignore; and which cases -- if any -- will receive necessary forensic expertise.(21) The result is routine violations of mandatory rules of professional responsibility.
Typically, judicial and bar officials responsible for enforcing those rules ignore the code violation. Occasionally, however, the representation is so egregious that the bar and judicial officials responsible for ethical oversight are compelled to act. In California State Bar Case No. 93-0-10027, for example, discipline was imposed on a lawyer who contracted for more cases than he could handle, and then subcontracted the bulk to another lawyer, also unable to handle the load -- several times the recommended maximum. Stipulated facts in that (unreported) case include failure to investigate; failure to contact clients prior to hearings; failure to obtain discovery; failure to file motions, or even submit jury instructions. While hundreds of clients too poor to choose their own attorney were trundled off to prison, the lawyer responsible was ordered suspended from the practice of law for one year, with execution of suspension stayed during two years of probation. And the case was forgotten, with no outcry and no recognition of the injustice inherent in such a system of low-cost high-caseload contracting.
A 1996 national survey by NACDL of bar discipline counsel revealed only one clear-cut example of acknowledgment of the problem and concern by bar officials. In case No. 96-PDB-012, the Disciplinary Board of the Louisiana Bar Association concluded that inmate Vincent Singleton's right to appeal had been neglected for over two years due to excessive caseloads. It directed the Office of Disciplinary Counsel to "investigate the matter further to ascertain if the system is as [the lawyer] describes it and if the system . . . needs to be altered to meet the requirements of the Rules of Professional Conduct." Disciplinary Counsel did so, and wrote to the Director of the Orleans Indigent Defender Program (O.I.D.P.), and the Chief Justice of the Louisiana Supreme Court, making the connection between incompetent representation caused by inadequate funding and professional ethical mandates:
I am cognizant of the financial and time constraints which are placed upon your program. Within the resources available to you, however, it is imperative that this dilemma be addressed. Clearly, the failure to designate responsible counsel when files are accepted by the O.I.D.P. fosters a system which fails to meet the standards of diligent representation as required by the Rules of Professional Conduct.We call this matter to your attention in an effort to aid and assist you in not only rectifying the problems of the complainant in this matter, but as further demonstration of your need for commitment from those parties responsible for ensuring proper and sufficient funding and support which will allow your attorneys and staff to provide legal services as are envisioned by the Supreme Court Rules of Professional Conduct.
Those "parties responsible for ensuring proper and sufficient funding" are the elected members of the legislative and executive branches of government. If they happen also to be members of the bar, as so many are in fact, are they not also subject to disciplinary action if systemic ethical violations are the certain result of underfunding? And as for low-bid indigent defense contracts, doesn't the organized bar (and every individual member thereof) have an affirmative responsibility to monitor the terms and performance of those contracts -- signed by one or more members of the bar -- for compliance with the Rules of Professional Responsibility? And to declare such contracts void as against public policy if they fail to measure up? Certainly. And even more, the professional bar associations need to actively seek out and expose, publicly, examples where justice for the poor is clearly compromised by cost-driven contracts.
For far too many years now, responsibility for the growing crisis has been shirked -- often by the cop-out "it's not my job," or by hoping that the legal system somehow will correct any blatant examples of ineffective assistance of counsel. This is probably wishful thinking. If convicted, a defendant alleging ineffective assistance of counsel must first overcome a strong presumption to the contrary, and then prove that but for counsel's errors the outcome would have been different.(22) That is a nearly impossible task.(23) Recent curtailment of already minimal habeas corpus review leaves most convicted defendants without meaningful access to the courts.(24) Moreover, common law tort redress for legal malpractice has been severely curtailed,(25) leaving hapless recipients of inadequate representation without remedy. Both constitutional guarantees and promises of professionalism have been subverted in the process.
The time for excuses is over. State and local bar associations, trial and appellate courts and
every member of the profession(26) must take responsibility for this escalating crisis and, with all
deliberate speed, strive to correct the injustices to those who can least afford to do anything about
it. Our status as a profession demands nothing less.
Notes
1. Gideon v. Wainwright, 372 U.S. 335 (1963) (felony trials); Douglas v. California, 372 U.S. 353 (1963) (appeals); Argersinger v. Hamlin, 407 U.S. 25 (1972) (misdemeanors).
2. See, e.g., Richard Klein and Robert Spangenberg, The Indigent Defense Crisis (ABA Section of Criminal Justice, 1993).
3. The most widely cited effort to define non-capital maximum caseload limits are the standards adopted by the National Advisory Commission on Criminal Justice Standards and Goals ("NAC"), appointed by the Administrator of the Law Enforcement Assistance Administration:
The caseload of a public defender office should not exceed the following: felonies per attorney per year: not more than 150; misdemeanors (excluding traffic) per attorney per year: not more than 400; juvenile court cases per attorney per year: not more than 200; Mental Health Act cases per attorney per year: not more than 200; and appeals per attorney per year: not more than 25.
NAC, Courts, Standard 13.12, "Workload of Public Defenders," p. 276 (1973). See also, National Legal Aid & Defender Association (NLADA), Indigent Defense Caseloads and Common Sense: An Update (1992).
4. See, e.g., Rivera v. Rowland, No. CV-95-0545629S (Superior Court, Hartford, Connecticut, filed Jan. 5, 1995) (pending systemic challenge to excessive public defender caseloads -- as high as 1,483 cases per attorney per year). Recent challenges to systemic underfunding, resulting in excessive caseloads, were rejected in Platt v. State, 664 N.E.2d 357 (Ind. 1996), cert. denied, Platt v. Indiana, 117 S.Ct. 1470 (1997); and Kennedy v. Carlson, 544 N.W.2d 1 (Minn. 1996).
5. See Laurie P. Cohen, 'Scared of Science' Crime Labs' Work is Rarely Challenged by Defense Lawyers, Wall St. J., July 22, 1997, at A1.
6. See, e.g., Green v. Washington, 917 F.Supp.1238 (ND Ill 1996) (appellate delay caused by inadequate public defender funding denies due process, equal protection, access to the courts and the right to counsel).
7. ABA Standards for Criminal Justice Providing Defense Services 46 (3d Ed. 1992).
8. See ABA Standing Committee on Legal Aid and Indigent Defendants, Bar Information Program, Findings Concerning Contracting for the Delivery of Indigent Defense Services (July, 1995) (collecting and summarizing the research); ABA Standing Committee on Legal Aid and Indigent Defendants, Bar Information Program, Questions and Answers Concerning Fixed Price Contracts for Representation of Indigent Defendants (May, 1996).
9. NACDL Assigned Counsel Policies, reprinted in The Champion 35 (July, 1997).
10. NLADA, Guidelines for Negotiating and Awarding Governmental Contracts for Criminal defense Services (1984) ("NLADA Guidelines").
11. ABA House of Delegates Resolution (July, 1985) (endorsing NLADA's 1984 Guidelines); ABA Standards for Criminal Justice Providing Defense Services, Stnd. 5-3.1 (3d Ed. 1992) ("ABA Standards")
12. See also ABA Standard 5-3.1 (contract for quality representation rather than cost), 5-3.3 (workload limits, minimum experience and specific qualification standards, reasonable compensation, expenses for investigators and experts, supervision and training, etc.; NLADA Guidelines III-6 (maximum allowable caseloads), III-7 (minimum professional qualifications), III-8 (support staff and forensic experts), III-9 (investigators), III-10 (compensation comparable to government or other publicly-paid attorneys), III-12 (escape clause for case- and work-overload), III-13 (no penalty for withdrawal due to conflict of interest), III-17 (funding for continuous training comparable to that provided to judges and prosecutors).
13. See, e.g., ABA Defense Function Standards (3d Ed. 1993); NLADA, Performance Guidelines for Criminal Defense Representation (1995).
14. Virtually every jurisdiction has adopted some form of the ABA Model Rules of Professional Conduct (1983) or the predecessor ABA Model Code of Professional Responsibility (1969) requiring Competent Representation -- including the legal knowledge, skill, thoroughness and preparation necessary for competent representation (Rule 1.1); Diligence and Promptness (Rule 1.3); and adequate Client Communication (Rule 1.4); and forbidding Conflicts of Interest, including conflicts with duties owed to other clients (Rule 1.7).
15. See, e.g., ABA Defense Function Standards, at 119-120: "These Standards are intended to provide defense counsel with reasoned and appropriate professional advice. They are also intended to serve as a guide to what is deemed to be proper conduct. These Standards are not intended, however, to serve as rules to be used as the basis for the imposition of professional discipline; applicable codes of ethics adopted in each jurisdiction serve that function."
16. Britt v. North Carolina, 404 U.S. 226, 227 (1971).
17. Ake v. Oklahoma, 470 U.S. 68, 77 (1985).
18. See, e.g., People v. Santana, 600 N.E.2d 201 (N.Y. 1992) (error to prohibit defense from consulting with expert during trial).
19. See Paul S. Petterson, Indigent Defense: DNA Experts for Indigents, The Champion 29 (Dec. 1994).
20. Edward C. Monahan & James J. Clark, Funds for Defense Expertise: What National Benchmarks Require, The Champion 12 (May, 1997); ABA Standard 5-1.4; NLADA Guideline 4.1(7).
21. See Richard Klein, The Eleventh Amendment: Thou Shalt Not Be Compelled to Render the Ineffective Assistance of Counsel, 68 Ind. L. J. 363 (1993); Edward C. Monahan & James J. Clark, Coping With Excessive Workload, in Ethical Problems Facing the Criminal Defense Lawyer (Rodney J. Uphoff, ed., ABA 1995); Patrick Noaker, It Doesn't Come With the Territory: Public Defenders Must Decline to Violate Legal and Ethical Standards in the Face of Rising Caseloads, Criminal Justice 14 (Summer, 1995).
22. Strickland v. Washington, 466 U.S. 668 (1984). "The Constitution, as interpreted by the courts, does not require that the accused, even in a capital case, be represented by able or effective counsel." Riles v. McCotter, 799 F.2d 947, 955 (5th Cir. 1986) (Rubin, J., concurring). Thus, a competent lawyer's death row client originally tried by an unconstitutionally-selected jury, won a new trial, and was sentenced to life, while the co-defendant, whose lawyer -- due to ignorance of the law -- neglected to make and preserve such a claim, was executed. Smith v. Kemp, 715 F.2d 1459 (11th Cir.), cert. denied, 464 U.S. 1003 (1983).
23. See, e.g., William S. Geimer, A Decade of Strickland's Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 Wm. & Mary Bill of Rts.J. 91 (1995); Bruce A. Green, Lethal Fiction: The Meaning of "Counsel" in the Sixth Amendment, 78 Iowa L.Rev. 433 (1993). In practice, the Strickland standard guarantees only that defense counsel, in retrospect, was breathing: "You put a mirror under the court-appointed attorney's nose, and if the mirror clouds up, that's adequate counsel." Stephen B. Bright, et al., Keeping Gideon From Being Blown Away: Prospective Challenges to Inadequate Representation May Be Our Best Hope, Criminal Justice, 11 (Winter 1990).
24. See, e.g., the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214. In Boria v. Keane, 90 F.3d 36, (2nd Cir. 1996) ineffective assistance of counsel (costing the client years in prison) was remedied only after the court found that the 1996 federal habeas amendments do not apply retroactively.
25. See Adkins v. Dixon, 253 Va. 275, 281-82 (1997) where appointed counsel's failure to recognize and assert a speedy trial violation was rejected as a tort claim:
The following cases hold that a decision adverse to a criminal defendant in post-conviction proceedings bars a recovery for the defense attorney's malpractice. Shaw v. State, 816 P.2d 1358, 1360 (Alaska 1991); Johnson v. Schmidt, 719 S.W.2d 825, 826 (Mo. App. 1986); State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 503-04 (Mo. App. 1985); Morgano v. Smith, 110 Nev. 1025, 879 P.2d 735, 738-39 (Nev. 1994); Carmel v. Lunney, 70 N.Y.2d 169, 511 N.E.2d 1126, 1128, 518 N.Y.S.2d 605 (N.Y. 1987); Stevens v. Bispham, 316 Ore. 221, 851 P.2d 556, 566 (Or. 1993); Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995).We agree with the majority of these foreign jurisdictions. . . .
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We agree with the defendants' claim that Adkins's actual guilt is a material consideration since courts will not permit a guilty party to profit from his own crime. . . . And, contrary to the opinion of the trial court, we think that Adkins's guilt, not Dixon's alleged failure to assert the speedy trial defense, was the proximate cause of the convictions. Peeler, 909 S.W.2d at 497.
See also Sullivan v. United States, 21 F.3d 198 (7th Cir.), cert. denied, 115 S.Ct. 670 (1994) (as a government employee, federal defender is immune from malpractice tort action), but cf., Jane M. Ward, "Sullivan v. United States: Are Federal Public Defenders in Need of a Defense?" 40 Vill. L. Rev. 233 (1995) (criticizing Sullivan for ignoring the reasoning of Polk County v. Dodson, 454 U.S. 312 (1981) (state public defender does not act under color of state law) and Ferri v. Ackerman, 444 U.S. 193 (1979) (private appointed counsel are not immune from malpractice liability)); Ward's fear that Sullivan immunity could spread to private contractors may be calmed by Richardson v. McKnight, __ U.S. __, 1997 U.S. Lexis 3866, (June 23, 1997) (guards at privatized prison are not entitled to qualified immunity from 1983 suit)); Dziubak v. Mott, 503 N.W.2d 771, 773 (Minn. 1993) (holding that public defenders enjoy absolute immunity from legal malpractice suits, on public policy grounds), but cf., Jeffrey H. Rutherford, "Dziubak v. Mott and the Need to Better Balance the Interests of the Indigent Accused and Public Defenders," 78 Minn. L. Rev. 977, 979 (1994) (criticizing Dziubak, which leaves defendants with "virtually no civil recourse against incompetent attorneys, and contributes to the public defenders' image as second-class lawyers.")
26. See Rule 8.3, Model Rules of Professional Conduct (duty to report substantial misconduct). "Self-regulation of the profession requires that members of the profession initiate disciplinary investigation when
they know of a violation of the Rules of Professional Conduct. . . . An apparently isolated violation may
indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is
especially important where the victim is unlikely to discover the offense." Id. (Comment).
National Association of Criminal Defense Lawyers (NACDL)