The American Bar Association Model Rules of Professional Conduct require lawyers to provide “competent” representation to their clients. Importantly, there is no exception to this rule. Attorneys first need to know what legal tasks need to be performed in each case and for each client, and then they need to know how to do them.
Attorneys graduate from law school with a strong understanding of the principles of law, legal theory, and generally how to think like a lawyer. But no graduate enters the legal profession automatically knowing how to be an intellectual property lawyer, a consumer protection lawyer, or an attorney specializing in estates and trusts, mergers and acquisitions, or bankruptcy. Such specialties must be developed.
The specialization of the legal profession, once thought of as cause for concern, has been embraced in recent decades. Now, in large part, it is accepted as a necessary fact:
“The reality of practicing law in the United States today is that individuals and law firms cannot do everything; they must choose to handle some legal work and decline or refer other work. As society has become more diverse, the law has become more complex. As more lawyers have chosen to concentrate their practice areas, the threshold of competence has increased in many fields. As clients have grown more sophisticated, they have increasingly sought lawyers with greater expertise in the areas of the clients’ legal problems over lawyers with general legal knowledge of the law. Generalists simply cannot compete with specialists.”
The same goes for the criminal defense lawyer. As the American Bar Association explained more than 20 years ago, “[c]riminal law is a complex and difficult legal area, and the skills necessary for provision of a full range of services must be carefully developed. Moreover, the consequences of mistakes in defense representation may be substantial, including wrongful conviction and death or the loss of liberty.”
For this reason, all national standards, including the ABA Ten Principles, require that public defense lawyers be minimally qualified to handle any case to which they are assigned. As ABA Principle 6 makes clear, the obligation to provide competent representation is shared equally by the attorney and by the indigent defense system.Principle 6: Defense counsel’s ability, training, and experience match the complexity of the case. Counsel should never be assigned a case that counsel lacks the experience or training to handle competently, and counsel is obligated to refuse appointment if unable to provide ethical, high quality representation.
The attorney’s ability to provide minimally effective representation is dependent upon his familiarity with the “substantive criminal law and the law of criminal procedure and its application in the particular jurisdiction.” If a public defender or a private attorney does not have “sufficient time, resources, knowledge and experience to offer quality representation to a defendant in a particular matter,” then the attorney is obligated to move to withdraw from the case or, better yet, to refuse the appointment at the outset. The attorney’s ability to continue the practice of law, after all, is most at risk for failing to comply with the Model Rules.
A public defense system has an obligation to refrain from putting attorneys in the position of providing potentially incompetent representation to the clients in the first place. It should only appoint attorneys to specific cases for which they are sufficiently qualified.
The system’s obligation goes further still. All national standards, as summed up in ABA Principle 9, require that the system provide attorneys with access to a systematic and comprehensive training program, at which attorney attendance is compulsory, in order to maintain competency from year to year.Principle 9: Defense counsel is provided with and required to attend continuing legal education. Counsel and staff providing defense services should have systematic and comprehensive training appropriate to their areas of practice and at least equal to that received by prosecutors.
The need for defender training goes well beyond the lawyer’s role in the courtroom. In fact, as the justice system has become “a system of pleas, not a system of trials,” the role of the criminal defense attorney today is as much an out-of-court negotiator as a courtroom advocate. This is particularly true with criminal and delinquency cases in our nation’s juvenile and misdemeanor courts.
No matter how complex or basic a case may seem at the outset, there are certain fundamental tasks each attorney must be able to do on behalf of the client in advance of the plea. Even in the average misdemeanor case, the attorney must be able to, in part: meet with and interview with the client; attempt to secure pretrial release if the client remains in state custody (but, before doing so, learn from the client what conditions of release are most favorable to the client); keep the client informed throughout the duration of proceedings; prepare for and appear at the arraignment, wherein he must preserve his client’s rights; request formal and informal discovery; launch an investigation, scouring all sources of potential investigative information in the process, and as soon as possible; develop and continually reassess the theory of the case; file and argue on behalf of pretrial motions; read and respond to the prosecution’s motions; negotiate plea options with the prosecution, including sentencing outcomes; and all the while prepare for the event that the case will be going to trial. The attorney, after all, will always seek to protect the client’s rights – including the right to a jury trial – and will only advise the client to waive such rights by taking a plea deal if there is a clear strategic and tactical reason for doing so. (These obligations, and others, are contained in the National Legal Aid & Defender Association’s Performance Guidelines for Criminal Defense Representation.) Attorneys may feel that they know how to do all of these things, that they have all the tools they need from years gone by, but without constant honing, those tools lose their edge.
For example, the 6AC has the privilege of meeting with defense lawyers across the country, and all too many have expressed to us their belief that most DUI cases are fairly predictable and therefore do not require much investigation. In a given case, a lawyer might be right – in the end there may not be any need to enlist the help of an investigator. But say an investigator is critical to establishing a valid defense in only one out of every 50 drunk-driving cases – how can that lawyer know which case is the exception without taking the time to examine whether an investigator is needed in each case? In truth, he cannot. Playing the percentages may yield the same result for many, but never for all.
Attorneys, therefore, need ongoing training on the use of investigators in all case types. Such training should focus on ensuring attorneys know when the use of an investigator is appropriate and/or strategically essential to the defense, but also how best to employ the unique skill-sets investigators have to offer. In fact, to target this second portion of the training requirements, some defender systems have begun using their own staff investigators as trainers for attorneys: this is what we investigators are good at, and here is how you attorneys should best take advantage of what we have to offer.
Investigators are critical to the attorneys’ ability to ensure better pleas for their clients. The ability of each defense lawyer to fulfill his client’s right to the effective assistance of counsel during plea negotiations is premised on the attorney having a strong position. The lawyer should not only have an understanding of the controlling law, but he should also have completed his analysis of the evidence likely to be introduced at trial. Much of this analysis, even in less-serious cases, is aided by the use of investigators. After all, if a valid defense is lost, one that could have been uncovered by the investigator, because the attorney failed to explore the topic in advance, he was hardly negotiating the plea deal from a position of strength.
Likewise, motions are a vitally important component of an attorney’s litigation strategy. Where the government’s evidence was acquired through an unlawful search, as one example, a defense lawyer’s motion can eliminate such evidence, thereby increasing the chances of a better plea offer from the prosecution or maybe even dropping the charges entirely. The same strategy applies in cases involving children or less-serious offenses. A healthy motions practice is integral to the advocacy demands of each attorney for each client. But, there is a great distinction between being a zealous advocate and an obtuse obstructionist. It is the attorney’s duty, therefore, to examine each case to determine whether or not a motion is warranted, rather than filing frivolous or stock motions at every opportunity.
And lastly, public defenders need constant reminding of the importance of client communications. Among the results of triaging the limited time public defenders have available is that attorneys tend to categorize clients by type of charge, as though those clients all have the same interests. Another common theme we hear from public defense attorneys throughout the country is that “95% of our clients just want to get out of jail.” Perhaps this is true in the end, but the public defender has an obligation not only to learn from the client, through timely and confidential discussions about the case, what outcome or resolution the client seeks, but also to explain the collateral consequences of guilty pleas, including immigration consequences.
Perhaps the client relies on federal assistance for housing. Or perhaps the client intends to serve in the military. Or perhaps he is working toward a license to practice a particular trade. It certainly could be true that 95% of clients want to get out of jail right away, but there is no doubt that 100% of clients enter jail lacking complete information. Would the client take the plea offer if he will lose his home as a result of his conviction? Would the client take the plea if that means he cannot join the armed services? Would he rather fight the charges against him, even if that means he has to stay in jail in the short term, in order to have a better chance at getting a job later? And how would he make an informed decision if his attorney never asks?
Public defenders have an ethical and constitutional duty to provide effective representation to every single defendant they are appointed to represent. They have an obligation to each client not to assume the rule, but to look for the exception to that rule in every single case. “Cutting corners” is substandard representation always, but the impact is never more detrimental to the agency’s effectiveness than a lack of communication with the client.
As much as every organization has an internal culture and set of values, the initial training program is the opportunity for the public defense system itself to indoctrinate the novice attorney into its culture and its values structure. But where a public defense system has no such intensive training program for new attorneys, lawyers are left only to learn from their surroundings, adopting the values and practices observed in their peers.
Without guidance, any organization will develop its own set of values from within. Over time, that which may have once been grudgingly accepted – saving investigation for only the most serious cases, presuming that all clients have the same views toward their case outcomes and, based on that assumption alone, entering guilty pleas on behalf of those clients only moments after meeting them in court – now becomes the established standard. And so, public defense systems must constantly remind the attorneys it employs (whether as full time public defenders or part-time contractors) of their performance obligations through ongoing training.
But this, of course, is the dividing line between competence and performance. The requirements of Principles 6 & 9 serve to ensure that attorneys employed by the public defense program have the training and knowledge needed to handle the types of cases to which they are assigned. An attorney may know how to do an important task. He may know that communicating with the client is critical to zealous representation. He may know investigation is often critical to factual development. And he may know that an acquittal might turn on a well-argued motion. But knowing how to do all of these things does not guarantee that they are in fact being done.
That only comes through ongoing supervision and systemic accountability, which are both required under ABA Principle 10.