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Approved by ABA House of Delegates
July 1985

AMERICAN BAR ASSOCIATION
CRIMINAL JUSTICE SECTION
REPORT TO THE HOUSE OF DELEGATES

RECOMMENDATION

BE IT RESOLVED, that the American Bar Association urges jurisdictions which choose to utilize governmental contracts for criminal defense services to do so in accordance with both the National Legal Aid and Defender Association's Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services, and Chapter 5 "(Providing Defense Services) of the second edition, ABA Standards for Criminal Justice.

REPORT

Current ABA policy recommends that all jurisdictions have a legal representation plan utilizing a full-time defender organization and a coordinated assigned-counsel system involving substantial participation of the private bar. ABA policy therefore urges the creation of a comprehensive and professional representation plan combining public and private legal services. Current ABA policy does not address the propriety of creating and operating defense services on a contract basis and the ABA takes no position on that specific issue today. Nevertheless, because of the economic factors involved, it must be recognized that some jurisdictions will experiment with contract defender services. In those jurisdictions the ABA should strongly recommend that negotiations leading to the award of governmental contracts for criminal defense services be undertaken in compliance with the National Legal Aid and Defender Association's (NLADA) contract defense guidelines. These guidelines set desirable standards that incorporate many of the criteria for professional defender services established within the ABA Standards for Criminal Justice.

Consistent with the ABA policy, the NLADA guidelines make it clear that cost factors alone should not be the basis for the award of governmental contracts for the delivery of professional legal services. Jurisdictions planning to provide criminal defense services on a contract basis should utilize the NLADA guidelines in conjunction with Chapter 5 (Providing Defense Services) of the second edition, ABA Standards for Criminal Justice, to ensure necessary end desirable levels for attorney selection and competence and for overall institutional administration and performance.

Prior ABA Action Regarding Contracts for Criminal Defense Services

At its Midyear Meeting in February, 1985, in Detroit, Michigan, the ABA House of Delegates adopted the following recommendation, with an accompanying report, sponsored jointly by the Criminal Justice Section and the ABA Standing Committee on Legal Aid and Indigent Defendants:

This resolution was the product of deliberations by the Criminal Justice Section's Defense Services Committee, which has examined extensively the issue of contracting over the past two years.

Prior to its submission of the resolution considered in Detroit, the Criminal Justice Section had been extensively involved in the review of a document produced as a result of four years of effort by the National Legal Aid and Defender Association, entitled Guidelines for Negotiating and Awarding Indigent Legal Defense Contracts. That document, approved by the NLADA Board of Directors on February 25, 1984, was subsequently circulated to relevant sections and committees within the ABA for review and comment. Because the Guidelines drew heavily upon existing ABA Standards for Criminal Justice, NLADA was very interested in receiving comments and criticism from the American Bar Association which might strengthen the guidelines. The Chairperson of the Criminal Justice Section referred review of the guidelines to the Section's Defense Services Committee, which undertook an exhaustive line-by-line review of the document over a year long period. The vice-chairman of the committee, Robert Boruchowitz, Public Defender of Seattle-King County, Washington, chaired a subcommittee reviewing the document. Among the subcommittee members was Professor Norman Lefstein of the University of North Carolina Law School at Chapel Hill, who acted as a reporter for the ABA in its drafting of the chapter on provision of defense services in updating the ABA Standards for Criminal Justice.

Mr. Boruchowitz subsequently prepared a report with recommended changes which was presented to the Criminal Justice Section Council at its meeting in Boston in October of 1984. The Section Council adopted the recommended changes proposed by the Defense Services Committee, and made some other substantive changes, all of which were submitted to NLADA for its review.

In December of 1984, at its annual meeting in Denver, Colorado, the NLADA Board of Directors adopted all changes recommended by the Criminal Justice Section Council, with the single addition that the title of the document be amended to read, Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services.

At the Midyear Meeting in Detroit, the Criminal Justice Section acknowledged the acceptance by NLADA of its recommended changes, approved the substance of the guidelines as drafted and agreed to submit the amended guidelines to the ABA House of Delegates for approval at the 1985 Annual Meeting in July. The resolution accompanying this report is the product of these cumulative efforts.

The Criminal Justice Section strongly feels that there is a need for further action in this area, for a number of reasons, which will be detailed below. Contracts for defense services represent the largest percentage growth in defense services over the past decade. In the context of this rapid development, a number of legal and policy problems have been raised not only with regard to the process and substance of contracts for defense services, but with the philosophical concept of "privatization." The resolution adopted at the Detroit Midyear Meeting addresses only the question of cost, and does not detail quality factors which are relevant to those jurisdictions which choose to utilize a contract system. The adoption of this resolution, in conjunction with current standards of the ABA with regard to criminal justice, closes gaps which will ensure some guidance to policy makers in this new and largely unchartered area.

Finally, the American Bar Association's influence reaches far beyond that of NLADA. It touches the majority of practitioners throughout the United States, and particularly those who are influential in governmental policy making.

The Growth of Contracts as a Delivery Model for Defense Services

The report which accompanies the resolution of the ABA, adopted at the Detroit Midyear Meeting in 1985, contains much definitional information regarding the use and proliferation of contracts as a service delivery model. More than a decade ago, in 1973, a survey of defense services conducted by NLADA failed to note the existence of contract programs. NLADA, The Other Face of Justice (1973). A 1972 survey of defense services conducted by the Justice Department's Bureau of Justice Statistics, noted that about 6% of all counties provide representation through a contract system, serving about 5% of the U.S. population. In the west, this system accounts for nearly 20% of counties. The report does acknowledge, however, that such growth appears to center on the handling of public defender conflict or unavailability cases and can most often be found in less populated counties. Bureau of Justice Statistics, A Special Report, A National Survey: Criminal Defense System 3-6 (1984).

A growing number of states have begun to address this issue, as well, frequently with the assistance or support of state or local bar associations. In North Dakota, for example, contracts for defense services constitute the primary delivery system in the state, and the North Dakota Legal Counsel for Indigents Commission has adopted a model contract for counsel services in that state. North Dakota Judicial System Indigent Defense Service Contracts as of January 1, 1984, Appendix I. In California, the State Bar of California's Standing Committee on Legal Services to Criminal Defendants has produced a number of reports dealing with contract services, and proposes to prepare a model contract for defense services for use in that state in the near future. Standing Committee on Legal Services to Criminal Defendants, Memorandum of April 5, 1985. In Ohio, the Public Defender Commission of that state has proposed rules which would govern the process of contracting for defense services. See Ohio Public Defender Commission, Proposed Rule 120-01-12 (December 7, 1984). Finally, in Massachusetts, comprehensive legislation was adopted which would allow the state to continue to use "bar advocate" programs by which contracts for defense services are administered by local bar associations at the county level. Mass. Gen. Laws Ann., Ch. 21D, Sec. 1 et seq.

Legal and Policy Problems with Contracts for Defense Services

Again, the report accompanying the resolution approved by the House of Delegates in Detroit in February of 1985 contains extensive information documenting the rocky history of the development of contracts for defense services, particularly when such contracts are awarded on the basis of cost alone.

Foremost among the recent cases which condemn the use of so-called "low bid" contracts is the Arizona Supreme Court's decision in 1984 in State v Smith, 140 Ariz. 355 (1984). The court reversed the convictions of Mr. Smith for several felony offenses on grounds the Mohave County contract system, under which the defendant was provided representation, violated the defendant's right to counsel and due process as guaranteed by the Arizona and United States Constitutions. Other decisions in California have also reversed criminal convictions as the result of the defendant's representation by lawyers involved in contracts and in which there was an economic disincentive to declaring a conflict of interest in the representation of multiple defendants. People v Barboza, 29 Cal. 3d 374 (1981); People v Mroczko, 35 Cal. 3d 92 (1983).

One of the most compelling cases against low bid contracts, awarded without consideration of factors contained in both NLADA's guidelines and ABA standards, is found in the April edition of The American Lawyer. C. Mayer, "Low Bid, Low Service," 33 The American Lawyer (April, 1985). The article conducts a detailed examination of the San Diego contract system, one of the oldest in the country and one which is continuously embroiled in controversy.

Begun in 1978, the contract system was converted to a low bid rule in 1981. Now the vast majority of San Diego's 33,000 indigent defendants were represented by private law firms that had contracts with the county's Office of Defender Services. Among the shortcomings documented in the article are the following:

Two significant responses have occurred in San Diego. First, the Office of Defender Services has decided to handle a number of the cases through more traditional defender formats. The "mini public defender office" will be staffed with 19 lawyers to handle about 1,300 of the county's most serious felonies. Second, a lawsuit has been filed by Defenders, Inc., San Diego's largest not-for-profit organization handling criminal cases by contract. The suit charges that San Diego's contracts are unconstitutional, in that they encourage lawyers to plea bargain as many cases as possible through the payment of flat fees, among other grounds.

In Seattle, the second largest jurisdiction in the United States to utilize the contract model, extensive shortcomings have been documented in the provision of defense services by this means, particularly in municipal courts. Evaluation of the Legal Services Provided Legally Indigent Criminal Defendants in the Municipal Court, City of Seattle, NLADA, 1981. Most recently, one of the large law firms which contracts with King County was found to have engaged in several financial irregularities which resulted in termination of the contract. Standards such as III-15, which require an annual audit, could prevent these problems. County counsel officials have asked the county to rewrite its contract "to include ethical as well as legal performance standards for the defender firms." "Defender Audit Calls for Change," Seattle Post-Intelligencer, A10, November 5, 1984.