Performance Guidelines for Criminal Defense Representation

NLADA’s Performance Guidelines offer an excellent, comprehensive and worthwhile definition of what constitutes good solid trial lawyering.  They give realistic meaning to the Sixth Amendment’s right to counsel and to the ultimate goal for all trial counsel: “zealous and quality representation.”

The Guidelines are comprehensive but not exhaustive.  The language allows for flexibility.  While some actions are absolutely essential, others are left to counsel’s considered judgment and to the peculiarities of practice and law in each jurisdiction. In other words, rather than being a checklist of required actions, the Guidelines are a series of steps each attorney must consider performing on behalf of each client, applying professional discretion to determine whether each individual step is necessary in the client's case.

The guidelines are divided into nine sections:

  1. Role, Duties and Training and Experience of Counsel   
  2. Pre-Trial Release Proceedings
  3. Initial Appearance, Preliminary Hearing, and Prosecution Requests for Non-Testimonial Evidence
  4. Investigation, Discovery, Theory of the Case
  5. Pre-Trial Motions
  6. Plea Negotiations
  7. Duties at Trial
  8. Sentencing
  9. Post-Sentencing Duties

Each section contains multiple guidelines, which, taken together, define the role and duties of defense counsel.  After each guideline there are references to “Related Standards” that include nationally recognized standards and codes (e.g., the ABA, the National Advisory Commission on Criminal Justice Standards and Goals, the National Study Commission on Defense Services, and various NLADA standards), statutes, regulations, and policy manuals developed by state and local public defender and assigned counsel programs.  The commentary, supported by footnotes citing to primary legal and secondary materials, provides an explanation and rationale for each guideline.

Although the guidelines do not specifically address the duties of death penalty, post-conviction or appellate counsel, they may be helpful in defining effective assistance of counsel in briefs and at post-conviction hearings.

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Publication Date: 2010