Continuous representation of the defendant by the same attorney – ABA Principle 7

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If an indigent defense lawyer is appointed early in the criminal process, she can effectively represent her client if she has the time, training, and resources to do so. Time is especially important to develop a level of trust between counsel and the accused that the U.S. Supreme Court describes as partaking of the “inviolable character of the confessional.”

Yet, early appointment of counsel will not result in effective representation if that trust is breached. For example, what good is it from the defendant’s perspective, if the lawyer provided early in the case is taken away, and replaced with someone else? The “confessional” is not some article, like a sheet of paper, which can be passed from one attorney to another.

For this reason, ABA Principle 7 requires that the same attorney initially appointed to a case to continuously represent the client until the completion of the client’s case. Commonly referred to as “vertical representation,” the continuous representation by the same attorney is contrasted with “horizontal representation” – a representational scheme whereby one attorney represents the client during one court proceeding before handing off the client’s case to another attorney to cover the next stage.

As the American Bar Association explains, “horizontal representation” is uniformly implemented as a cost-saving measure in the face of excessive workloads, and to the detriment of clients. In fact, the ABA rejects the use of horizontal representation in any form, stating specifically that: “Counsel initially provided should continue to represent the defendant throughout the trial court proceedings and should preserve the defendant’s right to appeal, if necessary.”

In explaining why horizontal representation is so harmful to clients, the ABA states:

“Defendants are forced to rely on a series of lawyers and, instead of believing they have received fair treatment, may simply feel that they have been ‘processed by the system.’ This form of representation may be inefficient as well, because each new attorney must begin by familiarizing himself or herself with the case and the client must be re-interviewed. Moreover, when a single attorney is not responsible for the case, the risk of substandard representation is probably increased.

Appellate courts confronted with claims of ineffective assistance of counsel have commented critically on stage representation practices.”1

The nexus between the requirement that trial counsel be appointed as early as possible and the requirement that the attorney who is appointed initially to represent the client remains with that client’s case through to completion is to ensure that the minimum level of advocacy necessary to mount a meaningful defense commences as soon as possible. In defender systems relying on horizontal representation schemes, the delay in appointing the actual trial lawyer has negative consequences for the client as promising investigative leads can go cold, witnesses can become harder and harder to track down, and memories can fade.

  1. ABA, Standards for Criminal Justice – Providing Defense Services, Commentary to Standards 5-6.2.