Quick Guide to National Standards for Indigent Defense

National standards for the provision of indigent defense representation provide the best yardstick for measuring the extent to which clients receive the representation guaranteed to them by the Sixth Amendment. (See Standards for the Delivery of Public Defense Services.) These national standards are generally of two types: (1) attorney performance standards, which set out the specifics of what each attorney should do in representing each client; and (2) systemic or structural standards, which establish the specifics of the defense system in which each attorney works. Here we have listed all of the pertinent standards, divided into these two categories. In some instances a single publication addresses both attorney performance and system; in those cases the publication is listed under both categories.

Attorney Performance Standards

Each person, who is accused of a crime and who cannot afford to hire an attorney, is constitutionally entitled to be represented by a public defense attorney who has sufficient time and resources to fulfill the basic requirements of attorney performance on behalf of that person. In over-simplified terms, this means the attorney is able to: meet with, interview, and advise the client; prepare and file necessary motions; receive and review the prosecution’s responses to motions; conduct a factual investigation, including locating and interviewing witnesses, locating and obtaining documents, locating and examining physical evidence; perform legal research; conduct motion hearings; engage in plea negotiations with the state; conduct status conferences with the judge and prosecutor; prepare for and enter a plea or conduct the trial; and prepare for and advocate at the sentencing proceeding when there is a guilty plea or conviction following trial. These obligations, owed by each criminal defense attorney to each individual client, are explained in detail in the national attorney performance standards.

 

Ethics Rules for All Attorneys

ABA Model Rules of Professional Conduct (2010) [the Model Rules can also be compared by state or by rule]
The American Bar Association’s Model Rules assure the legal profession’s “highest standards of professional competence and ethical conduct.”  For over ninety years, the Model Rules have served as the model for states’ regulation of the legal profession.    The American Bar Association also provides links to all the ethical rules in each state.

 

Criminal Defense Representation Generally

NLADA Performance Guidelines for Criminal Defense Representation (1995)
NLADA’s Performance Guidelines define what constitutes effective trial-level defense representation in criminal cases.  They give realistic meaning to the Sixth Amendment’s right to counsel and to the goal that each client receive “zealous and quality representation.”  The Performance Guidelines address the steps in representing a client from the moment of appointment through the conclusion of the proceedings at the trial-court level.

ABA Standards for Criminal Justice: Prosecution Function and Defense Function, Third Edition (1993)
The ABA Standards for Criminal Justice are intended to be used as a guide to professional conduct and performance. They “have been cited by the U.S. Supreme Court as well as other appellate courts, and have been referenced in numerous textbooks, law review articles, and other legal sources. Most states have incorporated at least some of the Standards into their criminal codes.”  The black letter standards on the defense function were approved by the ABA’s House of Delegates in February 1991; the prosecution function’s black letter standards a year after that.

 

Juvenile Delinquency & Juvenile Court Representation

IJA/ABA Juvenile Justice Standards Annotated (1996)
A “single volume containing all the black letter Juvenile Justice Standards,” this resource provides annotated standards for juvenile systems and juvenile attorneys.  The black letter attorney performance standards for representation are also available.

NJDC The Role of Juvenile Defense Counsel in Delinquency Court (2009)
The principles setting out the “specifics of the role of defense counsel” in providing the “zealous, comprehensive and quality legal representation to which children charged with crimes are constitutionally entitled.

NJDC Defending Clients Who Have Been Searched and Interrogated at School: A Guide for Juvenile Defenders (2009)
A working guide for juvenile defenders who “often defend clients who have been searched or interrogated on campus.”  This guide provides general criteria for effective representation involving referrals from schools and was developed by the National Juvenile Defender Center, in partnership with the Barton Juvenile Defender Clinic at Emory Law School and the Youth Advocacy Project of the Massachusetts Committee for Public Counsel Services.

 

Death Penalty Representation

ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003)
An update from the original 1989 edition, these Guidelines “set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by any jurisdiction.” They “apply from the moment the client is taken into custody and extend to all stages of every case in which the jurisdiction may be entitled to seek the death penalty, including initial and ongoing investigation, pretrial proceedings, trial, post-conviction review, clemency proceedings and any connected litigation.”

 

System/Structural Standards

The Sixth and Fourteenth Amendments, as explained by the United States Supreme Court in Gideon v. Wainwright, require states to provide counsel for people facing possible incarceration who cannot afford to hire a private attorney.  States carry out this constitutional mandate through indigent defense systems.  National standards provide detailed guidance about the necessary components of a public defense delivery system that will ensure the individual attorneys within those systems have the time, resources, and independence necessary to competently and effectively represent each individual client.

 

Criminal Defense Systems Generally

ABA Ten Principles of a Public Defense Delivery System (2002)
The ABA Ten Principles distill the existing voluminous national standards for public defense systems to their most basic elements, which officials and policymakers can readily review and apply.  In the words of the ABA Standing Committee on Legal Aid and Indigent Defendants, the Ten Principles “constitute the fundamental criteria to be met for a public defense delivery system to deliver effective and efficient, high quality, ethical, conflict-free representation to accused persons who cannot afford to hire an attorney.”

National Advisory Commission on Criminal Justice Standards & Goals, Task Force on Courts Chapter 13: Standards for the Defense (1973) [blackletter only]
In 1973, the National Advisory Commission, supported by DOJ funding, issued six extensive reports, each developed by a separate task force with dozens of staff members, including NLADA consultants, on the following topics: (1) A National Strategy to Reduce Crime; (2) Criminal Justice System; (3) Police; (4) Courts; (5) Corrections; and (6) Community Crime Prevention.  The Report of the Task Force on the Courts sets standards for the flow of cases through each stage of the criminal justice process, as well as basic standards for each of the system's component parts, including courts, court administration, prosecution and defense.  Chapter 13 focuses solely on standards for the defense function.

National Study Commission on Defense Services Guidelines for Legal Defense Systems in the United States (1976) [blackletter only]
Serving as “a blueprint of guidelines and procedures which would meet the nation's indigent defense needs,” the NSC Guidelines are based on a two-year study of six topical areas: (1) scope of services, eligibility and recoupment; (2) workload and budget projections; (3) defender system structure; (4) internal defender office structure; (5) assigned counsel system structure; and (6) the defense attorney's role in diversion and plea bargaining.

ABA Standards for Criminal Justice: Providing Defense Services, Third Edition (1992)
The ABA defense services standards set forth specific criteria to ensure that quality legal representation is afforded to all persons eligible for counsel, regardless of the method by which services are delivered (institutional defender, contract or assigned counsel).  The Standards call for a mixed delivery system that includes the active participation of the private defense bar.

 

Public Defender Office Systems

Uniform Law Commissioners’ Model Defender Act (1970) [blackletter only]
The Model Defender Act sets out the structural standards for the traditional public defender delivery model. While the standards assume a statewide defender system is in place, setting forth the duties and responsibilities of a state “defender general” position, the specific criteria apply equally to county and regional public defender agencies.

 

Contract Systems

NLADA Guidelines for Negotiating and Awarding Indigent Defense Contracts (1984) [blackletter only]
Guidance for providing public defense services through competitively bid contracts that operate well for the government, the courts and the citizens they serve.  Contracts written, negotiated and entered into in accordance with these Guidelines help ensure that high quality service will be provided to those defendants who are unable to afford counsel and will comport with government's other interests in efficiency, economy and accountability.

 

Assigned Counsel Systems

NLADA Standards for the Administration of Assigned Counsel Systems (1989) [blackletter only]
These standards specifically address those systems that use an assigned counsel delivery model, whether it is the only right to counsel system in place in the specific jurisdiction or whether it serves as a secondary/conflict system.

 

Appellate Systems

NLADA Standards and Evaluation Design for Appellate Defender Offices (1980) [blackletter only]
These appellate standards for systems are divided into two parts. Part I sets out specific criteria for a system to assure quality of legal representation in appellate matters. Part II sets out specific criteria for a system to assure efficiency of legal representation in appellate matters.

ABA Standards Relating to Appellate Courts (1994)
While these standards focus on appellate court structure, as part of the larger ABA Standards of Judicial Administration, the policy guidelines include topics of particular interest to right to counsel delivery systems, such as: opportunity for appellate review, assistance of counsel, decision making, appellate court caseflow management and delay reduction, and facilities and technology for appellate courts.

 

Juvenile Systems

IJA/ABA Juvenile Justice Standards Annotated (1996)
A “single volume containing all the black letter Juvenile Justice Standards,” this resource provides annotated standards for juvenile systems and juvenile attorneys.

NJDC/NLADA Ten Core Principles for Providing Quality Delinquency Representation through Public Defense Delivery Systems, 2nd Edition (2008)
The Ten Core Principles provide criteria by which a public defense delivery system may fully implement the holding of In re Gault, offering guidance to public defense leaders and policymakers regarding the role of public defenders, contract attorneys, or assigned counsel in delivering zealous, comprehensive and quality legal representation on behalf of children facing both delinquency and criminal proceedings.

 

Death Penalty Defense Systems

ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003)
An update from the original 1989 edition, these Guidelines “set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by any jurisdiction.” They “apply from the moment the client is taken into custody and extend to all stages of every case in which the jurisdiction may be entitled to seek the death penalty, including initial and ongoing investigation, pretrial proceedings, trial, post-conviction review, clemency proceedings and any connected litigation.”

 

Collateral Consequences of Criminal Convictions

ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons, 3rd ed. (2004)
This sets forth standards for the entire criminal justice system with respect to collateral consequences of criminal convictions. Includes responsibilities of each component of government, from the state legislature to defense counsel, in ensuring that consequences are germane and appropriate to the particular offense and are codified or compiled in a manner that allows for easy reference.

 

Training Systems

NLADA Defender Training and Development Standards (1997) [blackletter only]
Guidelines for the creation and implementation of ongoing training programs for defender systems.

 

Federal Defender Systems

Administrative Office of the United States Courts Guide to Judiciary Policy – Volume 7: Defender Services
The federal defender service standards guide the U.S. Courts in implementing and administering the federal Criminal Justice Act (CJA). It includes guidelines for the appointment and compensation of CJA panel attorneys (assigned counsel) and for federal public defender offices.

 

Additional Standards Resources

 

ABA Standards for Criminal Justice

For information about all individual sets of ABA standards related to criminal justice, as well as the work of the ABA Criminal Justice Standards Committee and forthcoming standards, visit the ABA Criminal Justice Section, Standards webpages.

Author/Organization: Jon Mosher
Publication Date: 03/29/2011