TO:
State Chief Justices
State and Local Bar Presidents
Lawyer Disciplinary Agencies

FROM: H. Scott Wallace, Director, Defender Legal Services

RE: "Low Bid Criminal Defense Contracting: Justice in Retreat"

DATE: October 3, 1997

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The National Legal Aid and Defender Association concurs with the concerns and recommendations in the report "Low-Bid Criminal Defense Contracting: Justice in Retreat" by the National Association of Criminal Defense Lawyers. In cosponsoring the report, we respectfully urge your cooperation and leadership in ensuring that any competitively bid contracts for indigent defense representation contain appropriate safeguards for quality, consistent with nationally recognized professional standards and the constitutional mandate of effective counsel.

For decades, NLADA has opposed indigent defense services contracts in which cost savings are exalted above quality. NLADA's Guidelines for Negotiating and Awarding Indigent Legal Defense Contracts identify the minimum requirements for a contract to avoid interference with the client's constitutional right to counsel and the lawyer's professional duties. Such requirements include:

• Adequate funding for investigators, forensic experts, social service and mental health personnel, and support staff;
  
  
• Maximum allowable workloads for attorneys, above which the contractor may decline additional cases;
  
  
• Funding for training for attorneys and professional staff at a level no less than is provided for judges and prosecutors;
  
  
• Oversight by an independent policy board; and
  
  
• A requirement that defense services be furnished consistent with minimum national professional standards.

Such standards include NLADA's Performance Guidelines for Criminal Defense Representation (1995) and the ABA Model Rules of Professional Conduct. Our contracting Guidelines contain numerical caseload limits, and we have issued reports on how states and public defender systems are implementing and refining caseload/workload limits (e.g., Indigent Defense Caseload and Common Sense: An Update (1992)). In December, NLADA will finalize a Model Contract for Indigent Legal Defense Services. We will be pleased to share it with you at that time.

Competitive bidding for indigent defense services can produce significant cost savings, but must never consign the poor to second-rate justice. When contract attorneys end up with far more cases than they can possibly handle, with no resources to investigate the facts or present vital expert testimony, injustice and conviction of the innocent become inevitable. And when our nation reserves such injustice for the poor, it makes a mockery of the precious constitutional promise etched above the Supreme Court portal: "Equal Justice Under Law."