As the U.S. Supreme Court has made abundantly clear, the right to the assistance of counsel is the right to “effective” representation. But how is “effective” representation defined?
How attorney-performance standards define minimum quality
The U.S. Supreme Court has established that “prevailing professional norms” (such as the ABA Standards for Criminal Justice and the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, among others) represent the proper baseline measure in ineffective assistance of counsel claims raised on appeal. Other minimum standards of attorney performance include the National Legal Aid & Defender Association’s Performance Guidelines for Criminal Defense Representation, and the National Juvenile Defender Center’s The Role of Juvenile Defense Counsel in Delinquency Court.
The American Bar Association Ten Principles of a Public Defense Delivery System require indigent defense systems to promulgate attorney performance standards based on these guidelines, but made specific to state laws and the requirements of local practice. Many public defense delivery systems and state bar associations have done just that. The Louisiana Public Defender Board, for example, has promulgated specific standards for all attorneys representing clients in adult criminal trials, juvenile delinquency cases, child in need of care (CINC) matters, capital trials, and other right to counsel matters. Similar requirements have been adopted for attorneys handling public cases in Arizona, Colorado, Connecticut, Indiana, Maine, Massachusetts, Montana, Nevada, North Carolina, North Dakota, Oregon, Pennsylvania, Texas, Virginia, Washington, and elsewhere. But, even where such mandatory performance standards do not yet exist for the defense function, as is the case in some states, each attorney is required to adhere to ethical standards of practice as required by the state bar (or the state court) in order to maintain his or her license to practice law. This means that the appointed lawyer – in any state – must have sufficient time, resources, training and expertise to handle the individual’s case. These are the minimum ethical obligations all attorneys owe to their clients.
The U.S. Supreme Court reflects on this right to effective representation in United States v. Cronic, and further concludes:
“The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted – even if defense counsel may have made demonstrable errors – the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.”
The role of the indigent defense system, therefore, is to ensure that the individual attorneys have access to ongoing training, are properly supervised, are provided with sufficient resources, and have enough time to effectively represent every single client. Where a defendant is represented by an attorney who lacks the time necessary to properly investigate the case, to meet with the defendant, to file pre-trial motions, to study the prosecution’s plea offer, etc. – essentially, where the attorney is forced to triage services in favor of one client over another – then both the system and the attorney are in breach of their ethical and constitutional obligations to that defendant.
Because public defense systems have no control over the number of cases entering the criminal courts each year, the most fundamental way to ensure individual attorneys have sufficient time to meet their minimum obligations for each and every client is to limit their annual workload.
National caseload standards
National standards point to the caseload maximums prescribed by the National Advisory Commission on Criminal Justice Standards and Goals (NAC), a 1973 U.S. Department of Justice-funded initiative, and which the ABA Ten Principles state “should in no event be exceeded.” NAC Standard 13.12 prescribes numerical caseload limits of:
150 felonies per attorney per year;
400 misdemeanors per attorney per year;
200 juvenile delinquencies per attorney per year;
200 mental health per attorney per year; or,
25 appeals per attorney per year.
This means a lawyer handling felony cases should handle no more than 150 felonies in a given year, assuming the lawyer has no additional duties. That is, he does not have any supervisory responsibilities, nor handles misdemeanors (or other case types), nor engages in any private practice on the side.
Footnotes to ABA Principle 5 on workload further states: “The workload demands of capital cases are unique: the duty to investigate, prepare, and try both the guilt/innocence and mitigation phases today requires an average of almost 1,900 hours, and over 1,200 hours even where a case is resolved by guilty plea.” Because of this, most standards require capital litigation attorneys handle no more than 3 such cases in a year. (See this and this.)
In 2013, the U.S. Department of Justice cautioned, however, that “caseload limits alone cannot keep public defenders from being overworked into ineffectiveness; two additional protections are required. First, a public defender must have the authority to decline appointments over the caseload limit. Second, caseload limits are no replacement of a careful analysis of a public defender’s workload, a concept that takes into account all of the factors affecting a public defender’s ability to adequately represent clients, such as the complexity of cases on a defender’s docket, the defender’s skill and experience, the support services available to the defender, and the defender’s other duties.” (Emphasis original.)
Workload maximums, therefore, are not some arbitrary number to be chased after by policymakers in budget debates. They are a mechanism to ensure that the minimum obligations owed by the attorney to the accused can be met in equal measure for each of his clients. And if the addition of one more case will mean he can no longer provide effective services to each of his clients, then the attorney must not take that next case.
Moving beyond the national caseload standards
While the NAC caseload limits were established as absolute maximums, policymakers in many states have since recognized the need to set local workload standards at the state and county level that take into account factors impacting attorney performance (such as time traveling between the court and the local jail to meet with clients, or the prosecution’s charging practices, among others), as well as additional obligations placed upon public defense attorneys through evolving U.S. Supreme Court case law, and improvements in forensic sciences and criminal justice technologies – all of which increases the time needed to render effective representation beyond what was established in 1973. For exactly this reason, several experts argue that the NAC standards are far too high, and that the actual maximum, for felony cases in particular, should be adjusted to well below 150 cases per attorney per year.
And so, because the core purpose of capping attorney workloads is to ensure that the each attorney has sufficient time to provide minimally effective representation to each and every client, the most effective means of achieving local workload standards is by tracking attorney (and non-attorney) time against individual performance obligations.
