The National Association of Criminal Defense Lawyers (NACDL), is asking
for your help in securing the Sixth Amendment guarantee of right to counsel
for those most in need of its protection. We are honored to have the National
Legal Aid & Defender Association (NLADA) join us in making this request.
For decades now, reflecting Gideon, there has been widespread acceptance of
the dual principle that providing criminal defense for the poor includes
"substantial participation of the private bar" as well as adequately funded
public defender programs. This is embodied in policy statements of the
American Bar Association (ABA), NLADA and NACDL. Statutes, court
rules and administrative practices incorporate this concept.
A prime reason for the emphasis on private bar involvement is to mobilize a
constituency for ongoing correction and reform. Commentary to the ABA's
policy notes: "The involvement of private attorneys in defense services
assures the continued interest of the bar in the welfare of the criminal justice
system. Without the knowledgeable and active support of the bar as a whole,
continued improvements in the nation's justice system are rendered less
likely."
Unfortunately, many jurisdictions have recently moved in the opposite direction, with more
and more glaring examples of low-bid contracts calling for one or more attorneys to handle
impossible criminal caseloads. The result is often severely compromised representation for
the poor. As a profession dedicated to due process and fundamental fairness in the courts
for all Americans, we sorely need to address and correct this situation.
The legal profession's inherent oversight responsibility can be achieved directly through
those offices and agencies, such as your own, responsible for enforcing time-honored Rules
of Professional Responsibility. Specifically, both current and proposed contracts for legal
services for the poor need to be carefully scrutinized to make sure that they don't result in
anything less than quality representation. Nor should they in any way foster unethical
practices by virtue of low-bid compromising of the level and kind of legal representation to
which all citizens are rightfully entitled.
Together, we must acknowledge a professional responsibility to examine and monitor these
contracts as to their actual performance and results, as well in terms of their explicit
commitments, conditions and terms. No contract should be allowed at the outset, or be
allowed to continue intact, without substantial and demonstrated guarantees of ongoing
quality representation. The enclosed report identifies the problem and recommends precisely
such oversight by the organized bar.
A few jurisdictions have responded to this crisis by promulgating standards and guidelines
to monitor the terms and performance of contracts for legal services. If your jurisdiction has
done so, please send us copies. We will post model standards -- as well as the enclosed
report -- on the NACDL website: www.criminaljustice.org. And let us know if, and how,
your organization is willing to assist in an all-out campaign to restore professionalism and
meaning to the essential Sixth Amendment guarantee of right to counsel.
Thank you for your prompt attention to this urgent matter, and your consideration of the report and the enclosed supporting memorandum from H. Scott Wallace, Director of Defender Legal Services for NLADA -- which is strongly behind this effort. I look forward to hearing from you at your earliest convenience.
Sincerely,
Gerald B. Lefcourt
National Association of Criminal Defense Lawyers (NACDL)