Understanding the debate about full-time public defender offices or appointment of private attorneys

No one public defense delivery model is inherently better than another.  In fact, almost every jurisdiction, whether organized by state or county, uses a mixture of delivery systems to provide all of the representation that is required.  There are three basic forms of delivering indigent defense representation:

  • Public Defender system.   An agency of the county or state, staffed with attorneys and support staff, all as fulltime government employees working together in a single office building or multiple branches.  Larger offices will have social workers and investigators on-staff.  Wisconsin operates under such a model, with a central administrative office in Madison, and fully staffed branch offices located throughout the state to provide representation in local trial courts.
  • Contract system.  The county or state issues a contract to an office (often a private non-profit corporation), an individual attorney, or a group of attorneys to handle a certain number of cases, type of cases, or cases arising out of a specified court, in a given year.  In exchange the county or state will pay the office or attorney(s) the agreed rate.  Oregon uses contracts with a mixture of local non-profit law firms and private attorneys to provide representation at the county level.  All contracts are administered by an independent oversight commission and funded out of an annual general appropriation by the state.  The Oregon contracts include strict caseload controls, training and support of a superior quality, and provide additional funding for all case-related expenses such as investigators and experts.
  • Assigned Counsel system.  Individual attorneys have agreed to have their names placed on a list from which judges or an assigned counsel administrator may appoint them as needed on a case-by-case basis, and they are typically paid either by the hour or by the case.  The state of Massachusetts maintains such a model for delivering public defense services, with funding and administration centralized under an  independent commission in Boston, and direct attorney supervision handled locally.  In the Massachusetts model, private attorneys are paid an hourly rate that increases with case complexity, and the attorney’s entire caseload – both public and private clients – are closely monitored to ensure compliance with national standards across the state.      

Each of these primary delivery models can be successfully employed to provide quality representation in a cost-effective manner, as long as national standards are adhered to.  The NSC Guidelines for Legal Defense Systems in the United States (1976) provides national standards for the delivery of defense services, regardless of delivery method.  For contract systems, there is the NLADA Guidelines for Negotiating and Awarding Government Contracts for Criminal Defense Services (1984).  For assigned counsel systems, there is the NLADA Standards for the Administration of Assigned Counsel Systems (1989) and NACDL Assigned Counsel Policies (1997).

Virtually every jurisdiction has found it necessary to employ a combination of these three methods in delivering indigent defense representation.  This is because the jurisdiction must provide unconflicted representation in conflict of interest cases.  These conflicts arise in three ways.  The most common is in cases of multiple co-defendants, each of whom must have his or her own independent attorney.  There are also direct conflicts of interest between particular clients and their attorneys (with those conflicts imputed to every attorney working in the same office).  The third type of conflict results from case overload, where a public defender office or contract attorney cannot accept the next case because they would then have too many cases to be able to provide effective assistance of counsel.  In all of these conflict situations, some secondary method of delivering representation is necessary to overcome the conflict. 

Providing unconflicted counsel is not just a nice item on a public defense wishlist – it is mandatory.  Regardless of service delivery method, representation is provided in each case by individual attorneys.  Those attorneys must be licensed to practice law, and in each state in the country the attorneys within that state must adhere to certain rules of ethics in order to retain their law license.  Although there are minor variations among the state ethical rules, all states require each lawyer to practice without conflicts.  Only assigned counsel systems have the ability to protect against conflicts without having a secondary service delivery method.

To address the most efficient and cost-effective method of providing sufficiently high-quality and unconflicted representation to indigent defendants, the ABA Ten Principles of a Public Defense Delivery System, Principle 2, provides:

Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.  The private bar participation may include part time defenders, a controlled assigned counsel plan, or contracts for services.  The appointment process should never be ad hoc, but should be according to a coordinated plan directed by a full-time administrator who is also an attorney familiar with the varied requirements of practice in the jurisdiction.  Since the responsibility to provide defense services rests with the state, there should be state funding and a statewide structure responsible for ensuring uniform quality statewide.

No matter whether a jurisdiction provides counsel primarily through assigned counsel or through public defender offices or through a contract system, it will always be necessary to appoint some number of private attorneys.

Author/Organization: Phyllis E. Mann
Publication Date: 01/28/2011