November 3, 1998
Re: Strategies for Enforcing Disciplinary Rules
Applicable to Low-Bid Criminal Defense Contracts
Dear [BAR COUNSEL]:
At the 1998 Annual Meeting of the National Organization of Bar Counsel, the National
Association of Criminal Defense Lawyers urged state bar counsel to address the unethical practice
conditions created by low-bid criminal defense contracts -- detailed in our report, Low-Bid Criminal
Defense Contracting: Justice in Retreat, posted on our website:
http://www.criminaljustice.org/INDIGENT/ind00007.htm. NACDL also offered its assistance to bar
counsel who take up this cause.
As evidence of NACDL's good faith in offering to assist you, I am sending this letter to address
questions raised by some bar counsel about how they would go about investigating low-bid indigent
defense contracts and disciplining those responsible.
At the NOBC meeting, NACDL Public Affairs Co-Chair Kathryn Kase explained how low-bid
contracts typically force the defense lawyers who practice under them to provide representation that
violates the ethical rules. For example, many contracts compromise the duties to provide competent
and diligent representation by loading defenders up with too many cases and by providing access to
far too few resources, such as investigators or expert witnesses. In NACDL's judgment, such
conditions violate Model Rules 1.1 (competent representation), 1.3 (diligent and prompt
representation), 1.4 (adequate client communication), and 1.7 (conflict-free representation).
We urged bar counsel at the NOBC Annual Meeting to:
Investigate low-bid indigent defense contracts to ensure that their terms do not compel unethical practice by defense counsel;
Discipline the supervisory lawyers who enter into low-bid contracts that, by their terms, compel unethical practice; and
Discipline defense lawyers and their supervisors when practice under these contracts violates the ethical rules.
In response, bar counsel have raised concerns which we address in this letter:
Regarding concerns that bar counsel are without authority to unilaterally investigate low-bid criminal defense contracts: We urge bar counsel to take a page from the Disciplinary Board
of the Louisiana Bar Association in case number 96-PDB-012. In that case, which involved an
inmate's appeal that had been neglected for two years due to excessive caseloads, the Disciplinary
Board directed the Office of Disciplinary Counsel to investigate the indigent defense system and
determine if it needed to be altered to meet the requirements of the Rules of Professional Conduct.
As a result of that investigation, the Louisiana Supreme Court was informed that the inadequate
funding that caused incompetent representation had to be addressed.
Regarding concerns that high caseloads are a mitigating factor when defenders subject to
indigent defense contracts are investigated: Model Rule 5.1(c) permits bar counsel to discipline
supervisory lawyers who require subordinate lawyers to work in conditions that result in unethical
practice. Just as bar counsel discipline supervising partners in private law firms who fail to prevent
subordinate attorneys from engaging in unethical practice, so should bar counsel discipline
supervisory attorneys administering indigent defense contracts that cause subordinate lawyers to
violate the ethical rules.
Regarding concerns that clients defended at public expense cannot expect "Cadillac
representation": Neither Gideon v. Wainwright nor the disciplinary rules provide any exception
to the requirement of ethical representation due to a client's poverty. To read such an exception into
either Gideon or the rules would render each a dead letter, as well as subvert professionalism and
constitutional guarantees.
As stated above, we want to assist bar counsel in applying state disciplinary rules to low-bid criminal defense contracts. One place to start is identifying specific workload and resource standards, as well as performance guidelines, developed to particularize the more general ethical duties of competence, diligence, client-communication, conflict-free representation, etc. Working with the ABA, the National Legal Aid and Defender Association and the Department of Justice, we are collecting and updating standards and guidelines already adopted by many jurisdictions. Our growing collection is posted on our website: http://www.criminaljustice.org/INDIGENT/guides.htm.
Should you require expert assistance or merely consultation, please don't hesitate to contact our
Indigent Defense Counsel Paul Petterson, at (202) 872-8600, ext. 224. We want to work closely
together to address the escalating crisis caused by these contracts.
Very truly yours,
Larry Pozner
President
National Association of Criminal Defense Lawyers (NACDL)