Chapter 1
General Standards For Representation In All Criminal, Delinquency, Dependency And Civil Commitment Cases

Prerequisites For Representation

Counsel shall only accept an appointment or retainer if counsel is able to provide quality representation and diligent advocacy for the client.

Cases and Statutes
The right to assistance of counsel is equally applicable to those who retain counsel and to those to whom counsel is appointed. Shipman v. Gladden, 253 Or 192, 199 (1969); Moore v. United States, 432 F2d 730 (3rd Cir. 1970)

Related Standards and Guidelines
Oregon Code of Professional Responsibility DR 6-101 Competence and Diligence

Oregon Judicial Department, 'Qualification Standards for Court-Appointed Counsel to Represent Indigent Persons at State Expense' (1990)

STANDARD 2.1 Attorneys appointed to represent indigent persons at state expense must provide each client the time and effort necessary to ensure competent and adequate representation. Neither defender organizations nor assigned counsel should accept work loads that, by reason of their excessive size or complexity, interfere with rendering competent and adequate representation or lead to the breach of professional obligations.

STANDARD 3.1 Subject to the provisions of Standard 4.1, the appointing authority shall appoint only those attorneys who:

1. Are members of the Oregon State Bar or are attorneys of the highest court of record in any other state or country who will appear under ORS 9.240; and

2. Either:

(a) Meet the qualifications specified below for the applicable case type; or

(b) Possess significant experience and skill equivalent to or exceeding the qualifications specified below, and who demonstrate to the appointing authority's satisfaction that the attorney will provide competent and adequate representation; and

3. Have adequate facilities to ensure reasonable and timely personal and telephonic contact between attorney and client, and between court and attorney, including adequate support staff or answering service/machine for receiving messages and notifying clients of court dates.

National Legal Aid and Defender Association (NLADA), 'Performance Guidelines for Criminal Defense Representation' (1994)
NLADA Guideline 1.1 - Role of Defense Counsel

(a) The paramount obligation of criminal defense counsel is to provide zealous and quality representation to their clients at all stages of the criminal process.

(b) Attorneys also have an obligation to abide by ethical norms and act in accordance with the rules of the court.

ABA Standards for Criminal Justice: Providing Defense Services, Third Edition

(a) Neither defender organizations, assigned counsel nor contractors for service should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations. Special consideration should be given to the workload created by representation in capital cases.

(b) Whenever defender organizations, individual defenders, assigned counsel or contractors for services determine, in the exercise of their best professional judgement, that the acceptance of additional cases or continued representation in previously accepted cases will lead to the furnishing of representation lacking in quality or to the breach of professional obligations, the defender organizations, individual defender, assigned counsel or contractor for services must take such steps as may be appropriate to reduce their pending or projected caseloads, including the refusal of further appointments. Courts should not require individuals or programs to accept caseloads that will lead to the furnishing of representation lacking in quality or to the breach of professional obligations.

Metropolitan Public Defender

Established a unit valuation system to determine the number of cases each attorney can handle each year. Types of cases are given unit values based on anticipated time demands. Unit values range from 100 to 1. It is assumed that a mythical competent attorney can effective handle 600 units per year.

State Bar of Michigan, Committee on Assigned Counsel Standards, 'Standards for Assigned Counsel' (1995)

1. Declining Appointment. Counsel shall decline an appointment from the court to represent an indigent client if the nature or extent of counsel's existing caseload is likely to prevent effective representation of that client.

General Duties And Responsibilities
Of Counsel To Client; Avoiding Conflict Of Interests

Upon being retained or appointed by the court, counsel should contact the client as soon as practicable AND maintain regular contact thereafter. Counsel should endeavor to establish a relationship of trust and open communication with the client and should diligently advocate the client's position within the bounds of the law and the Rules of Professional Responsibility and the court.

Related Standards and Guidelines
Oregon Code of Professional Responsibility
DR 5-107 Settling Similar Claims of Clients
DR 7-101 Representing a Client Zealously
DR 7-102 Representing a Client within the Bounds of the Law

NLADA Guideline 1.3 - General Duties of Defense Counsel
(c) Counsel has the obligation to keep the client informed of the progress of the case, where it is possible to do so.

Role Of Counsel

Counsel should seek the lawful objectives of the client and should not substitute counsel's judgment for that of the client in those case decisions that are the responsibility of the client.
Related Standards and Guidelines
Oregon Code of Professional Responsibility
DR 5-108(A), (B) Avoiding Influences by Others than the Client

Massachusetts Committee for Public Counsel Services, 'Performance Guidelines Governing Representation of Indigents in Criminal Cases', 1991 1.3 General Duties of Defense Counsel

(a) Counsel's primary and most fundamental responsibility is to promote and protect the best interests of the client. This includes honoring the attorney/client privilege, respecting the client at all times, and keeping the client informed of the progress of the case....

(b) Client should make every effort to arrange for prompt and timely consultation with the client in an appropriate private setting....

(c) Counsel has an obligation to make available sufficient time, resources, knowledge and experience to afford competent representation of a client in a particular matter before agreeing to act as counsel or accepting appointment.

(d) Counsel has an obligation to keep and maintain a thorough, organized, and current file on each client....

(e) Counsel must be alert to, and avoid where appropriate, under the law all potential and actual conflicts of interest that would impair the ability to represent a client.

(f) The attorney shall explain to the client those decisions that ultimately must be made by the client and the advantages and disadvantages inherent in these choices. These decisions are: whether to plead guilty or not guilty and to alter such plea; whether to be tried by a jury or a court; whether to testify at trial; whether to appeal, and whether to waive his/her right to a speedy trial.

(g) The attorney should explain that final decisions concerning trial strategy, after full consideration with the client and after investigation of the applicable facts and law, are ultimately to be made by the attorney....

(h) Counsel's obligation to the client continues on all matters until and unless another attorney is assigned and/or files an appearance. Counsel should fully cooperate with successor counsel.

(i) Counsel should be aware of and protect the client's right to a speedy trial, unless strategic considerations warrant otherwise.

(j) Unless the prejudice outweighs the benefits, counsel should seek any necessary recess or continuance of any proceeding for which counsel is inadequately prepared....

(k) Consistent with the obligations and constraints of both court and ethical rules, counsel should make reasonable efforts to seek the most advantageous forum for the client's case, e.g. motions to change venue, etc.

(l) Where counsel is unable to communicate with client because of either language or mental disability, the attorney shall take whatever steps are necessary to insure that he/she is able to communicate with the client and that the client understands the proceedings. Such steps would include having counsel obtain expert assistance to assist with the matter.

(m) Counsel should be prompt for all court appearances and appointments and, if a delay is unavoidable, should take necessary steps to inform the client, the court, and minimize the inconvenience to others.

Initial Client Interview

Counsel should conduct a client interview as soon as practicable after being retained or appointed by the court, in order to obtain information necessary to provide quality representation at the early stages of the case and to provide the client with information concerning counsel's representation and the case proceedings.
Cases and Statutes
Counsel must obtain information from the client. DeCoster I, supra at 1203; United States v. Tucker, 716 F2d 576, 582, 591, 593 (9th Cir. 1983); DeCoster II, supra at 280, 281; State v. Pfeiger, 15 Or App 383, 388 (1973); Cole v. Peyton, 389 F2d 224, 226 (4th Cir. 1968) (the court further noted that counsels' caseload was so large as to be a factor in their below standard representation in the instant case.). Counsel must fully advise the defendant. Lyons v. Pearce, 298 Or 554 (1985); Barzee v. Cupp, 29 Or App 705 (1977); State ex rel Russell v. Jones, 293 Or 312, 317-318 (1982); Gairson v. Cupp, 415 F2d 352 (9th Cir. 1969).

Related Standards and Guidelines
NLADA Guideline 2.2 - Initial Interview

(a) Preparation: Prior to conducting the initial interview the attorney, should, where possible:

(1) be familiar with the elements of the offense and the potential punishment, where the charges against the client are already known;

(2) obtain copies of any relevant documents which are available, including copies of any charging documents, recommendations and reports made by bail agencies concerning pretrial release, and law enforcement reports that might be available;

(3) be familiar with the legal criteria of determining pretrial release and the procedures that will be followed in setting those conditions;

(4) be familiar with the different types of pretrial release conditions the court may set and whether private or public agencies are available to act as custodian for that client's release;

(5) be familiar with any procedures for reviewing the trial judge's setting of bail.

(b) The Interview:

(1) The purpose of the initial interview is both to acquire information from the client concerning pretrial release and also to provide the client with information concerning the case. Counsel should ensure at this and all successive interviews and proceedings that barriers to communication, such as differences in language or literacy, be overcome.

(2) Information that should be acquired includes, but is not limited to:

(A) the client's ties to the community, including the length of time he or she has lived at the current and former addresses, family relationships, immigration status (if applicable), employment record and history;

(B) the client's physical and mental health, educational and armed services records;

(C) the client's immediate medical needs;

(D) the client's past criminal record, if any, including arrests and convictions for adult and juvenile offenses and prior record of court appearance or failure to appear in court; counsel should also determine whether the client has any pending charges and also whether he or she is on probation or parole and the client's past or present performance under supervision;

(E) the ability of the client to meet any financial conditions of release;

(F) the names of individuals or other sources that counsel can contact to verify the information provided by the client; counsel should obtain the permission of the client before contacting these individuals;

(3) Information to be provided to the client includes, but is not limited to:

(A) an explanation of the procedures that will be followed in setting the conditions of pretrial release;

(B) an explanation of the type of information that will be requested in any interview that may be conducted by a pretrial release agency and also an explanation that the client should not make statements concerning the offense;

(C) an explanation of the attorney-client privilege and instructions not to talk to anyone about the facts of the case without first consulting with the attorney;

(D) the charges and potential penalties;

(E) a general procedural overview of the progression of the case, where possible;

(c) Supplemental Information

(1) Wherever possible, counsel should use the initial interview to gather additional information relevant to preparation of the defense. Such information may include, but is not limited to:

(2) the facts surrounding the charges against the client;

(3) any evidence of improper police investigative practices or prosecutorial conduct which affects the client's rights;

(4) any possible witnesses who should be located;

(5) any evidence that should be preserved;

(6) where appropriate, evidence of the client's competence to stand trial and/or mental state at the time of the offense.

State Bar of Michigan

7. Client Interview. Counsel shall conduct a timely interview of the client after being appointed and sufficiently before any court proceedings so as to be prepared for that proceeding.

Massachusetts Committee for Public Counsel Services, 'Performance Guideline Governing Representation of Indigents in Criminal Cases', 1988
2.2 Initial Interview and Preparation for Bail Hearing

e) Whether or not the client is detained, counsel should describe the court procedures and counsel's obligation regarding the attorney/client privilege. Counsel should explain the client's rights under the Fifth Amendment to the United States Constitution and Article XII of the Massachusetts Declaration of Rights and should specifically advise the client not to discuss the case or any of the facts surrounding it with anyone but counsel unless counsel advises otherwise. This admonition should include the client's speaking out in court and the client's right to request that his/her attorney be present at any interview or questioning.

M. Kelly, Federal Prison Camp, Sheridan, Oregon, 'Performance Standards for Attorneys: The Inmate Perspective' (1995)Pretrial Issues

1) Failure to time initiate attorney/client visitation.

2) Failure to fully debrief the defendant regarding the facts of the crime. This results in an over-reliance on the prosecution's theory of the case.

3) Incomplete examination of the charging instrument and other relevant documents. (i.e. Indictment/Search Warrant.)

4) Insufficient effort at identifying pretrial issues. (i.e. failure to vigorously pursue discovery, and investigate or interview victims and witnesses.)

5) Failure to explore potential defenses.

6) Unwillingness to pursue or incorporate defendant's ideas or theories into defense.

7) Reluctance to accept defendant/client telephone communication.

8) Failure to answer correspondence in a timely fashion, if at all.

9) Unwillingness to fight the prosecution; a predisposition to plea bargain.

A. Lopez, Multnomah County Bar Association, Subcommittee on Indigent Defense, 'Case Life of Adult Criminal Case' (1991)

I. Preindictment/Arraignment

A. Explain Miranda and other privileges; attorney/client, parent, husband/wife, etc.

B. Explain charges/penalties.

C. Explain rights/procedures, administrative hearings applicable.

D. Explain civil compromise, expungement (if applicable).

E. Generate release information (if custodial setting)

F. Generate witness lists.

G. Talk to alleged victim or police or DA for potential preindictment or precomplaint resolution.

H. Assist with setting surrender/arraignment.

I. Duty to Preserve evidence.

J. Explain criminal process (e.g., Juvenile Court, civil liability, forfeitures, tort claims).

K. Internal affairs complaint information.

L. Preliminary evaluation: mental competence.

M. First stage referral, information, attorney referral, appropriate hotline, shelter, etc.

II. First Appearance

A. Advice of rights, reserve rights, respond to name, formal entry of not guilty plea (if misdemeanor).

B. Generate release information, make recog pitch, review any relevant information, suggest relevant alternatives, make community contacts.

C. Determine whether complaint is crime or violation.

D. Set initial/get contact and overview, explain future court dates, FTA law, duties and responsibilities w/release authorities DMDA, ISP, CSS, BSP, third party conditions.

E. Emphasize any court warnings, lawyer's role, importance of remaining silent re: facts of case.

F. Brief investigator - initiate investigation if appropriate.

G. Get trial assistant involved re: alternatives (e.g. drug or alcohol counseling).

H. Open/organize file.

I. Letter to client, future court dates, significant events.

J. Check for conflicts, other pending cases, p.v., parole holds.

III. First Client Interview

A. Get waiver of appearance.

B. Release of information.

C. Develop theory of case.

D. Generate alternatives.

E. Get names/addresses of potential witnesses; interview witnesses if time permits.

F. Identify handicaps, communication difficulties - take steps to assure appropriate conditions or interpreter assigned - ex parte Motion for Interpreter.

G. If in custody, see immediately - advise, per client's request, parents, spouse, others of custodial situation - if out, schedule appointment.

H. Make mutual check of defendants.

I. Begin negotiations with state, advise D.A of defense witnesses (if any) you want to go before Grand Jury and questions to be asked of them.

Theory Of The Case

During investigation and trial preparation, counsel should develop and continually reassess a theory of the case.
Cases and Statutes
Failure to pursue defendant's theory of the case is not ineffective assistance of counsel. Krummacher v. Gierloff, 290 Or 867, 627 P2d 458 (1981)

Related Standards and Guidelines
NLADA Guideline 4.3 - Theory of the Case

During investigation and trial preparation, counsel should develop and continually reassess a theory of the case.

State Bar of Michigan

24. Developing Trial Strategy. Counsel shall strive to develop a legally correct and factually plausible strategy for trial.