July 1, 2019
ILS Standards for Establishing and
Administering Assigned Counsel Programs
BLACK LETTER STANDARDS WITH COMMENTARY
i
New York State Office of Indigent Legal Services
Standards for Establishing and Administering Assigned Counsel Programs
BLACK LETTER STANDARDS WITH COMMENTARIES
TABLE OF CONTENTS
P
ART
I.
I
NTRODUCTION
1. Preamble .................................................................................................................................. 1
1.1. Applicability .......................................................................................................................... 2
Commentary .................................................................................................................................. 2
1.2. Scope ...................................................................................................................................... 2
1.3. Purpose ................................................................................................................................... 3
Commentary .................................................................................................................................. 3
1.4. Definitions.............................................................................................................................. 3
1.4.a. Administrator ...................................................................................................................... 3
1.4.b. Assigned Counsel................................................................................................................ 3
1.4.c. Assigned Counsel Program ................................................................................................. 3
1.4.d. Clients ................................................................................................................................. 3
1.4.e. Counties............................................................................................................................... 4
1.4.f. Independence ....................................................................................................................... 4
1.4.g. Judge ................................................................................................................................... 4
1.4.h. Mandated Representation.................................................................................................... 4
1.4.i. Mentor or Mentoring Attorney ........................................................................................... 4
1.4.j. Panel..................................................................................................................................... 4
1.4.k. Quality Representation ....................................................................................................... 4
1.4.l. Supervising Attorney ........................................................................................................... 4
1.4.m. Chief Defender ................................................................................................................... 4
P
ART
II.
C
OUNTY
R
ESPONSIBILITIES
A. Establishment and Maintenance of an Assigned Counsel Program
2. General Policies ....................................................................................................................... 4
2.1. ACP Requirement .................................................................................................................. 4
Commentary .................................................................................................................................. 4
2.1.a. Regional Programs .............................................................................................................. 5
Commentary .................................................................................................................................. 5
2.2. Quality Representation........................................................................................................... 6
2.3. Independence ......................................................................................................................... 6
2.3.a. Independent Office .............................................................................................................. 6
2.3.b. Judicial Supervision ............................................................................................................ 6
2.3.c. Independent Function .......................................................................................................... 6
ii
Commentary .................................................................................................................................. 6
3. Required Structure ................................................................................................................. 6
3.1. Governing Law ...................................................................................................................... 6
Commentary .................................................................................................................................. 7
3.2. ACP Board ............................................................................................................................. 7
Commentary .................................................................................................................................. 7
3.2.a. Board Members ................................................................................................................... 7
Commentary .................................................................................................................................. 7
3.2.b. Board Supervision ............................................................................................................... 8
3.2.c. No Interference.................................................................................................................... 8
3.2.d. Insurance ............................................................................................................................. 8
Commentary .................................................................................................................................. 8
3.3. Assigned Counsel Administrator ........................................................................................... 9
3.3.a. Administrator Qualifications ............................................................................................... 9
Commentary .................................................................................................................................. 9
3.3.b. Administrator Selection ...................................................................................................... 10
3.3.c. Administrator Continuity .................................................................................................... 10
3.3.d. Administrator Functions ..................................................................................................... 10
3.3.d.i. Delegating Duties ............................................................................................................. 10
3.3.d.ii. Spokesperson Role........................................................................................................... 10
3.3.d.iii. Addressing Issues ........................................................................................................... 10
3.3.d.iv. Planning and Policy ........................................................................................................ 10
3.3.d.v. Assignment Process ......................................................................................................... 10
Commentary .................................................................................................................................. 10
3.3.d.vi. Vouchers ......................................................................................................................... 10
3.3.d.vii. Non-Attorney Professional Services.............................................................................. 11
B. Provision of Necessary Resources
4. ACP Capacity .......................................................................................................................... 11
4.1. Facilities ................................................................................................................................. 11
4.1.a. Office Space ........................................................................................................................ 11
4.1.b. Technology ......................................................................................................................... 11
Commentary .................................................................................................................................. 11
4.2. Necessary Services................................................................................................................. 11
4.2.a. Supervision .......................................................................................................................... 11
Commentary .................................................................................................................................. 12
4.2.b. Mentoring ............................................................................................................................ 12
Commentary .................................................................................................................................. 12
4.2.c. Consultation ........................................................................................................................ 13
Commentary .................................................................................................................................. 13
4.2.d. Training ............................................................................................................................... 13
4.2.e. Second-Chair Program ........................................................................................................ 14
iii
4.3. Staffing ................................................................................................................................... 14
4.3.a. Supervising Attorney .......................................................................................................... 14
Commentary .................................................................................................................................. 14
4.3.b. Administrative Staff ............................................................................................................ 14
4.3.b.i. Hiring Staff. ...................................................................................................................... 14
4.3.b.ii. Client’s Rights ................................................................................................................. 14
4.3.c. ACP Staff Salaries............................................................................................................... 15
4.3.c.i. Administrator’s Compensation ......................................................................................... 15
4.3.ii. Staff Compensation ........................................................................................................... 15
4.4. Client Communication ........................................................................................................... 15
4.5. Full Partnership ...................................................................................................................... 15
Commentary .................................................................................................................................. 15
4.6. Ensuring Adequacy of Facilities for Representation ............................................................. 15
4.6.a Confidential Client Communication Facilities..................................................................... 16
4.6.b. Legal Research Capacity ..................................................................................................... 16
5. Early Representation .............................................................................................................. 16
5.1. General ................................................................................................................................... 16
5.1.a. Assignment During Eligibility Determination .................................................................... 16
5.1.b. Subsequent Appearances .................................................................................................... 16
5.2. Counsel in Criminal Cases ..................................................................................................... 16
Commentary .................................................................................................................................. 16
5.3. Counsel for Litigants in Family Law Matters ........................................................................ 17
Commentary .................................................................................................................................. 17
6. Duration and Continuity of Representation ......................................................................... 18
6.1. Duration of Representation .................................................................................................... 18
Commentary .................................................................................................................................. 18
6.2. Continuity of Representation ................................................................................................. 18
7. Budget and Funding ............................................................................................................... 18
7.1. General ................................................................................................................................... 18
Commentary .................................................................................................................................. 19
7.1.a. Periodic Review .................................................................................................................. 19
7.1.b. Compliance with ILS Standards ......................................................................................... 19
7.1.c. Budget and Record-Keeping ............................................................................................... 19
7.1.d. Voucher Review.................................................................................................................. 19
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III.
ACP
R
ESPONSIBILITIES
A. General Responsibilities
8. Operational Responsibilities .................................................................................................. 20
8.1. Attorney Panels ...................................................................................................................... 20
8.1.a. Differentiated Panels ........................................................................................................... 20
8.1.b. Qualifications ..................................................................................................................... 20
8.1.c Regional Recruitment........................................................................................................... 20
Commentary .................................................................................................................................. 20
8.1.d. No Fee ................................................................................................................................. 20
8.1.e. Administrator Assignments ................................................................................................ 20
Commentary .................................................................................................................................. 20
8.1.f. Geographic Areas ................................................................................................................ 21
Commentary .................................................................................................................................. 21
8.1.g. Malpractice Coverage ......................................................................................................... 21
8.2. Requirement that Eligible Clients Receive Representation ................................................... 22
8.3. Procedures for Compensating Panel Attorneys ..................................................................... 22
8.3.a. Full Compensation .............................................................................................................. 22
8.3.b. Prompt Payment .................................................................................................................. 22
8.3.c. Additional Payment ............................................................................................................. 22
Commentary .................................................................................................................................. 22
8.3.d. Interim Vouchers ................................................................................................................ 23
Commentary .................................................................................................................................. 23
8.3.e. Post-Disposition Work ........................................................................................................ 23
Commentary .................................................................................................................................. 23
8.3.f. Expenses .............................................................................................................................. 23
8.3.g. Changes in Procedures ........................................................................................................ 23
8.4. Administrative Responsibilities for Panel Attorneys ............................................................. 23
8.5. Access to Appropriate Non-Attorney Professional Services ................................................. 23
8.5.a. Range of Services ................................................................................................................ 23
8.5.b. Direct Services .................................................................................................................... 23
8.6. Quality Assurance Procedures ............................................................................................... 24
B. Quality Assurance Provisions
9. General Provisions .................................................................................................................. 24
9.1. Compliance with Applicable Standards ................................................................................. 24
9.2. Client-Centered Representation ............................................................................................. 24
9.2.a. Contacting Clients ............................................................................................................... 24
9.2.b. Promptly Meeting ............................................................................................................... 24
9.2.c. Accepting Phone Calls ........................................................................................................ 24
9.2.d. Timely Responding ............................................................................................................. 24
9.2.e. Protecting Confidentiality ................................................................................................... 24
v
9.2.f. Updating the Client .............................................................................................................. 24
9.2.g. Discussing Relevant Documents......................................................................................... 24
9.2.h. Collaborating with the Client .............................................................................................. 24
9.2.i. Pursuing Alternatives to Incarceration ................................................................................ 24
9.2.j. Pursuing the Appropriate Disposition.................................................................................. 24
9.2.j. Using Non-Attorney Professional Services ......................................................................... 24
9.2.l. Explaining Collateral Consequences ................................................................................... 25
Commentary .................................................................................................................................. 25
9.2.m Representing Young Clients ............................................................................................... 25
Commentary .................................................................................................................................. 26
9.2.n. Preserving Appellate Rights ............................................................................................... 27
Commentary ................................................................................................................................. 27
10. Attorney Capability ............................................................................................................. 27
10.1. Knowledge and Experience ................................................................................................ 27
10.2. Assessment of Attorneys...................................................................................................... 27
11. Attorney Caseload ................................................................................................................ 28
11.1. Attorney Caseloads ............................................................................................................. 28
11.1.a. Evaluation of Attorney Caseload ...................................................................................... 28
11.1.b. Review of Attorney Caseload ........................................................................................... 28
12. Training ................................................................................................................................ 28
12.1. Orientation ........................................................................................................................... 28
12.2. Initial Training ..................................................................................................................... 28
12.3. Ongoing Training ................................................................................................................. 28
12.a. Obtaining CLE Training ...................................................................................................... 28
12.b. Mandated Representation Topics ......................................................................................... 28
12.c. Monitoring CLE Programs ................................................................................................... 28
12.d. Providing Affordable Programs ........................................................................................... 29
Commentary .................................................................................................................................. 29
13. Supervision and Mentoring ................................................................................................. 29
13.1. Use of ACP Resources ......................................................................................................... 29
14. Performance Review and Remediation ............................................................................... 30
14.1. Review of Performance and Remediation Policies .............................................................. 30
14.2. Complaint Procedures .......................................................................................................... 30
14.3. Remediation ........................................................................................................................ 30
Commentary .................................................................................................................................. 30
New York State Office of Indigent Legal Services
Standards for Establishing and Administering Assigned Counsel Programs
BLACK LETTER STANDARDS WITH COMMENTARIES
PART I. INTRODUCTION
1. Preamble
Well-designed, properly maintained, and adequately funded assigned counsel programs (ACPs or
Programs) play a vital role in ensuring justice for clients who cannot afford to retain an attorney
in criminal defense or family law matters. Every county in New York State depends upon assigned
counsel to provide representation for public defense clients. In several counties, ACPs are the
primary or sole providers of mandated representation. In most counties, where public defender
offices or legal aid societies are the primary providers, the mandated representation of some
eligible individuals presents conflicts of interest requiring the assignment of private attorneys.
For compelling reasons beyond conflicts of interest, the continuing involvement of the private bar
is essential to the success of public defense. First and foremost, effective public defense requires
a robust competition of ideas among practitioners with a broad range of perspectives. By bringing
their experiences representing private clients to public defense, private assigned counsel may show
staff attorneys new and different ways of doing things, thus helping to ensure that public defense
practice remains rich and innovative. Further, private attorneys who represent public defense
clients can serve as effective ambassadors to bar associations, legislatures, community groups, and
others. They can educate the public and system stakeholders about the needs of the criminal and
family justice system and promote funding and initiatives that will ensure quality public defense.
Finally, when public defenders face unanticipated fluctuations in staffing and caseloads, the
private bar can help achieve administrative stability and quality of representation.
County Law article 18-B, enacted in 1965, delegates to localities the responsibility for public
defense services. Section 722 sets out the types of providers that counties may employ to fulfill
the right to counsel. One permissible mechanism is a bar association program in which an
Administrator rotates assignments and administers the services of private counsel. However,
County Law § 722 provides no details as to the proper establishment of ACPs, so counties and bar
associations have created and maintained programs with little guidance. To aid counties and ACP
Administrators and to ensure quality representation, the State Office of Indigent Legal Services
(ILS), in consultation with the ILS Board, promulgates these Standards for Establishing and
Administering Assigned Counsel Programs (Standards), pursuant to Executive Law § 832.
These Standards draw from existing national, state, and local standards; developments in ACPs
over the last half-century; and the experience and knowledge of the Standards Working Group and
ILS staff. Materials consulted include: New York State Bar Association (NYSBA) Revised
Standards for Providing Mandated Representation (NYSBA Revised Standards); National Legal
Aid and Defender Association Standards for the Administration of Assigned Counsel Systems
(NLADA ACS Standards); and standards promulgated by the New York State Defenders
Association (NYSDA), including Standards for Providing Constitutionally and Statutorily
Mandated Representation in New York State (NYSDA Standards for Mandated Representation),
2
and by the American Bar Association (ABA). These Standards reference, and should be read in
conjunction with, other relevant ILS standards listed in the Commentary to Standard 1.2, infra.
ILS has created these Standards to help ACPs ensure that panel attorneys can comply with all
applicable individual representation standards and with New York Rules of Professional Conduct.
There are many unique and challenging aspects of assigned counsel representation. For instance,
where judges select attorneys to handle public defense cases, those attorneys may be concerned
that zealous representation could discourage future assignments. Attorneys may sometimes feel
pressure to consider the fiscal interests of the government, which may be adverse to the needs of
clients. These pressures can be exacerbated for the many panel attorneys who depend on
assignments as part of a solo or small law practice.
These challenges must not result in any compromise in the quality of representation provided to
public defense clients or the independence of panel attorneys. Gideon v Wainwright, 372 US 335,
345 (1963), established the right of state criminal defendants to the “guiding hand of counsel at
every step in the proceedings.” Implicit in that concept is “the assumption that counsel will be free
of state control. There can be no fair trial unless the accused receives the services of an effective
and independent advocate.” Polk County v Dodson, 454 US 312, 322 (1981). The government
must adequately fund public defense services and structure ACPs so that lawyers can remain
independent, meet their ethical obligations, and deliver quality representation. ILS and its Board
will continue to work with stakeholders to secure the funding necessary for compliance with these
Standards.
1.1. Applicability. These Standards apply to all existing and future systems in the state for
the delivery of mandated representation by assigned counsel.
Commentary:
These Standards encompass criminal defense, family law, and appellate representation of assigned
counsel clients. They are being issued at a time when state funding is being made available to
counties pursuant to the statewide implementation of reforms (see Executive Law § 832 [4])
stemming from the settlement of a class action lawsuit regarding constitutional violations in the
provision of mandated criminal representation in five named counties.
1
ILS will assist counties in
utilizing such funding to develop or improve ACPs that adhere to these Standards.
1.2. Scope. These Standards are designed to guide ACPs to ensure that attorneys can comply
with relevant performance standards in providing mandated representation.
Commentary:
Essential elements of the representation of individual clients are summarized in Standard 9.2, but
are more fully covered in other standards, including: ILS Standards for Parental Representation in
State Intervention Matters (ILS Parental Representation Standards), ILS Appellate Standards and
Best Practices (ILS Appellate Standards), and ILS Standards and Criteria for the Provision of
1
Information about the Settlement in Hurrell-Harring v State of New York is available on the ILS website.
https://www.ils.ny.gov/content/hurrell-harring-settlement-information
(last accessed Feb. 22, 2019).
3
Mandated Representation in Cases Involving a Conflict of Interest (ILS Conflict Standards
2
);
NYSDA standards, including Client-Centered Representation Standards (NYSDA Client-
Centered Standards); NYSBA Revised Standards; ABA Criminal Justice Standards for the
Defense Function (4
th
ed); and NLADA Performance Guidelines for Criminal Defense
Representation (NLADA Performance Guidelines).
1.3. Purpose. These Standards set out the structure and components of ACPs necessary to
ensure quality representation.
Commentary:
When ACPs have a proper structure and resources, quality representation can be provided. That
has been proven by the Programs developed in Hurrell-Harring Settlement counties, as well as in
other counties with effective ACPs. Such Programs offer models regarding how these Standards
can guide counties in developing or improving ACPs that promote high-quality representation.
The examples of ACPs cited throughout the Commentaries do not represent the only sound ways
to implement these Standards, given inevitable change. The models we invoke will evolve over
time; and as other Programs develop and progress over time, new and even more effective models
will emerge. By building Programs with strong structures and quality-control measures, ACPs can
enable panel attorneys to provide meaningful representation, while reducing the risk of wrongful
convictions, as pointed out by a State Bar report.
3
Further, strong ACPs can facilitate meaningful
representation in family law matters.
1.4. Definitions.
1.4.a. Administrator. The organizational leader who administers the ACP and ensures
that these Standards are met.
1.4.b. Assigned Counsel. A private attorney or attorneys, other than an attorney or
attorneys employed by an institutional provider, paid by the government to represent
public defense clients.
1.4.c. Assigned Counsel Program (ACP). An entity that sets forth protocols and policies
for assigning attorneys to public defense clients and ensures that those attorneys provide
quality representation.
1.4.d. Clients. Persons entitled to representation in criminal defense and family law
matters under County Law article 18-B.
2
ILS Conflict Standards have applied to all trial-level mandated representation cases since Jan. 1, 2013.
https://www.ils.ny.gov/content/standards-and-performance-criteria (last accessed Feb. 22, 2019).
3
See Final Report of the NYSBA Task Force on Wrongful Convictions, Defense Practices Subcommittee
Report and Final Proposals (NYSBA Wrongful Convictions Report), at 121-123 (expressing concerns
about quality control regarding qualifications and performance of assigned counsel and the adequacy of
resources for oversight, consultation, investigation, and case preparation).
4
1.4.e. Counties. All 62 counties in the state: the 57 upstate counties and the five boroughs
of New York City.
1.4.f. Independence. Freedom from improper influence and control by an outside entity,
to ensure that ACPs and assigned counsel make decisions based solely on the interests of
clients.
1.4.g. Judge. Judges, magistrates, and any other persons with adjudicative powers over
clients eligible for mandated representation.
1.4.h. Mandated Representation. Government-funded legal representation that is
constitutionally or statutorily required. “Mandated representation” is used
interchangeably with “public defense representation.” As employed in these Standards,
both terms encompass 18-B representation in family law litigation, regardless of the
client’s party status.
1.4.i. Mentor or Mentoring Attorney. An experienced attorney who provides training,
consultation, and guidance to less experienced attorneys on the panel.
1.4.j. Panel. The ACP’s list of attorneys eligible to receive assignments, which should be
limited to those in good standing and with the requisite skills and training.
1.4.k. Quality Representation. Representation of clients in a professional, skilled, ethical,
and client-centered manner.
1.4.l. Supervising Attorney. An attorney who assists the Administrator in ensuring that
each individual assigned counsel provides quality representation.
1.4.m. Chief Defender. A leader of a Public Defender office, Conflict Defender office,
Legal Aid Society or ACP.
PART II. COUNTY RESPONSIBILITIES
A. Establishment and Maintenance
of an Assigned Counsel Program
2. General Policies
2.1. ACP Requirement. Each county should establish and maintain an ACP that complies
with these Standards.
Commentary:
Adherence to these Standards is fundamental to providing quality public defense services and will
factor strongly in ILS’s approval of ACPs, pursuant to its statutory authority under County Law §
772 (3) (b), (c), effective April 1, 2019). As set forth in Section 3 of these Standards, the ACP shall
be established pursuant to governing law; shall operate under the guidance of an independent
5
governing Board; and shall be headed by an Administrator who implements the Program’s policies
and duties. County Law § 722 provides alternate structures to deliver such services. A locality may
use institutional providers to handle cases that present a conflict of interest as to the primary
provider.
4
However, setting up an “institutional provider only” system deprives counties, public
defense lawyers, and their clients of the potential benefits of a well-run ACP. In the decades since
Gideon v Wainwright, supra, was decided, experience in providing public defense services has
demonstrated the value of institutional providers and formal ACPs in ensuring quality
representation.
5
Some cases will require appointment of lawyers from outside even multiple
institutional providers. Moreover, as set forth in the Preamble, significant systemic benefits flow
from the active participation of the private bar in providing public defense services.
County plans are generally strongest when they also include the services of a full-time public
defender organization.
6
Fully funded institutional providers can develop special expertise in public
defense cases; provide client-centered representation by including investigators, social workers,
and other necessary professionals on staff; and advocate for improvements in the criminal defense
and family law systems. Nationally, all major urban jurisdictions include an institutional public
defense provider, as do the vast majority of counties in New York State.
2.1.a. Regional Programs. Counties may agree to create a regional ACP to comply with
these Standards and to promote the efficient delivery of services.
Commentary:
In many rural counties, too few attorneys are available for assigned cases, so the time and
expense needed to develop an ACP that meets these Standards might appear to be too great.
One solution is a regional program, whereby two or more neighboring counties pool resources
to create one program with multi-county administrative responsibilities. This approach is most
feasible in counties where many attorneys practice in both jurisdictions and/or where one of
the counties has an established ACP that can administer the Program in the other county. The
shared service agreement between Tompkins and Schuyler counties, created in implementing
the Hurrell-Harring Settlement, provides a model approach and is consistent with statewide
efforts to help municipalities identify opportunities for cost savings through inter-municipal
cooperation, reorganization, and regionalization.
7
4
See Matter of New York County Lawyers’ Assn. v Bloomberg, 19 NY3d 712, 722 (2012).
5
NLADA ACS Standards, Standard 3.1 (b) states: “Jurisdictions that rely in whole or in part upon assigned
counsel for the provision of defense services shall consider whether and how to combine assigned counsel
with one or more other methods of providing representation.”
http://www.nlada.net/sites/default/files/nlada_standardsforassignedcounsel_1989.pdf
(last accessed Feb. 22, 2019).
ABA Standards for Criminal Justice, Providing Defense Services (ABA Defense Services Standards),
Standard 5-1.2 (b) states: “Every system should include the active and substantial participation of the
private bar. That participation should be through a coordinated assigned-counsel system and may also
include contracts for services. No program should be precluded from representing clients in any particular
type or category of case.”
https://www.americanbar.org/groups/criminal_justice/publications/criminal_justice_section_archive/crimj
ust_standards_defsvcs_blk/#1.2 (last accessed Feb. 22, 2019).
6
ABA Defense Services Standards, Standard 5-1.2 (a).
7
See New York State Department of State Division of Local Government Services website.
6
2.2. Quality Representation. Each ACP shall ensure the provision of professional, skilled,
ethical, and client-centered legal representation for all clients.
2.3. Independence. Each ACP shall remain independent and free from improper influence
and conflicts of interest.
2.3.a. Independent Office. The ACP shall not be part of a Legal Aid Society, Public
Defender office, Conflict Defender office or County Attorney office.
2.3.b. Judicial Supervision. The ACP and individual assigned counsel should be subject
to judicial supervision only in the same manner and to the same extent as applies to all
other practicing lawyers.
2.3.c. Independent Function. The function of providing mandated representation—
including the assignment, selection, funding, and payment of counsel—shall be
independent.
Commentary:
Protecting the interests of assigned counsel clients is the paramount concern of the ACP. The
Program and its attorneys must remain insulated from conflicts of interest, political influence, and
other outside pressures that could compromise the integrity of the Program or the ability of counsel
to provide quality mandated representation. The delegation of ACP administration to a Legal Aid
Society, Public Defender, Conflict Defender or County Attorney presents a clear conflict of
interest and diminishes the independence of the ACP.
The ACP may be structured as a nonprofit organization or county agency or in any other form that
will allow it to remain free from improper outside influence and control. The administrative
structure of the ACP, as set forth in Part III, will help safeguard the independence of the Program.
Generally, the ACP Administrator, not a judge or court official, should select the individual
attorneys to be assigned to each case, except in emergency situations or exceptional circumstances,
as explained in Standard 8.1.e. This approach is designed to help ensure that representation is not
inappropriately influenced by the selection process, while at the same time ensuring that
assignments are fairly distributed. Further, absent a panel attorney’s violation of the Rules of
Professional Conduct or other relevant standard, the ACP should not interfere with the
representation provided in assigned cases. The funding provided to ACPs must be based on the
amount needed to allow for the sound administration of the Programs and to enable panel attorneys
to deliver quality representation to all clients. The review of vouchers and payments to counsel
must be independent and rest on services rendered and expenses incurred and other relevant
considerations, not a desire to reduce county costs.
3. Required Structure
3.1. Governing Law. Each county should establish an ACP pursuant to a plan of a bar
association within the county.
https://www.dos.ny.gov/lg (last accessed Feb. 22, 2019).
7
Commentary:
This Standard addresses the creation of ACPs pursuant to a bar association plan under County Law
§ 722 (3) (a) (i) (representation is to be furnished pursuant to a plan of a bar association in each
county, or the city in which a county is wholly contained, whereby services of private counsel are
rotated and coordinated by an Administrator). Having bar associations, rather than government
units, establish ACPs helps ensure independence. Bar associations across the state have been
establishing ACPs at least since the introduction of the legislation that became County Law § 722.
8
Bar associations—whether at the local, state, or national level—encompass the experience of
lawyers in many fields. Involving bar associations in the design of a plan for mandated
representation helps ensure that this vital legal area is not marginalized.
3.2. ACP Board. To ensure that the management of the ACP is independent of all branches
of county government, the ACP shall operate under the guidance of a governing Board.
Commentary:
An independent governing Board can help ensure that public defense services are insulated from
inappropriate influences. See Preamble and Standard 2.3. Public defense standards have long
called for ACPs to have independent boards. The NLADA ACS Standards include this
requirement.
9
The NLADA noted that independence might best be served by having appointments
made by a variety of entities. The Board should reflect the broad experiences and knowledge
necessary to ensure client-centered representation. Legal training alone is not enough. A range of
expertise should be represented, and members of the client community could serve on the Board.
10
3.2.a. Board Members. The majority of the Board’s members shall be attorneys who are
not judges; and no members of the Board shall hold a position as a prosecutor, law
enforcement or government official.
Commentary:
“To safeguard independence and to promote efficiency and quality of services, a nonpartisan
board should oversee defender, assigned counsel, or contract systems,” as declared in the ABA
Ten Principles of a Public Defense Delivery System (2002) (ABA Ten Principles), Principle
8
A letter of the Warren County Bar Association stated that, at a well-attended meeting on April 14, 1965,
the Association voted to support the bill’s passage and adopted a plan for representation intended to bring
about “early improvement in the quality of representation for indigent defendants in Warren County.”
9
NLADA ACS Standards, Standard 3.2.1.
(a) The Assigned Counsel Program shall be operated under the aegis of a general governing body, the
Board. (b) Most of the members shall be attorneys but none shall be judges, prosecutors or law enforcement
officials. (c) Members shall not receive a salary but shall be reimbursed for reasonable, actual and necessary
expenses. (d) Terms of office shall be staggered.
10
See National Study Commission on Defense Services Guidelines for Legal Defense Systems in the United
States (1976) (NSC Guidelines), Commentary at 73, note 3. “[I]t is recommended that at least one member
of the Board not be an attorney; this person could represent the client community, or another non-legal
segment of the community. Diversity of interests should ensure insulation from partisan politics.”
https://www.justice.gov/atj/publication/guidelines-legal-defense-systems-united-states-report-national-
study-commission (last accessed Feb. 22, 2019).
8
1, Commentary.
11
For public defense lawyers to provide ethical representation, their
assignment, supervision, and compensation must be unconnected to individuals and entities
whose interests conflict with those of clients. Therefore, the Board should not include
individuals who perform adversarial functions, such as criminal prosecution, law enforcement
or state intervention in criminal or family matters where counsel may be appointed. Nor should
Boards include officials whose duties to safeguard government interests might conflict with
the goal of quality representation.
We recognize that the NLADA ACS Standards, as cited in note 9, would prohibit judges from
participating as members of an ACP Board. Further, ILS acknowledges valid concerns,
including that, especially in small programs serving in small communities, a local judge can
exert undue influence on policy issues; and that the presence of a judge on the Board can affect
the perception of the Program as being committed solely to the provision of quality defense
services. However, we also recognize the potential benefits of having a judge as a Board
member. Among other things, judges can be effective ambassadors in dealing with other
judges and legislators regarding the importance of strong public defense. In allowing for
judges as Board members, this Standard concludes that a limited role is appropriate and does
not contravene the overriding principle that the Board must be nonpartisan and supportive of
high-quality representation for clients. This conclusion is supported by the experience of
governing boards of effective ACPs in several New York counties, including Erie and
Onondaga, as well as by our own experience with the ILS Board, which has three current or
former judges among its nine members. Moreover, we note that the inclusion of a
representative from the client community, as referenced in Standard 3.2, can be particularly
helpful for Boards that include an active judge or judges to ensure that all perspectives relevant
to quality representation are considered. If future experience raises valid concerns regarding
judicial participation on Boards, we will revisit this Standard.
3.2.b. Board Supervision. The Board shall appoint the ACP Administrator and may
supervise the operation of the ACP and establish policies to support implementation of
these Standards.
3.2.c. No Interference. The Board shall not interfere with the representation of
individual clients.
3.2.d. Insurance. The ACP shall insure the Board and the Administrator, for all
insurable risks incident to the operation of the ACP, to a dollar amount specified by the
Board. The funding agency shall indemnify the Board and the Administrator for all
liability arising from their authorized activities pursuant to the ACP.
Commentary:
The ACP must obtain insurance to fully protect the ACP Board, Administrator, and staff for
all insurable risks associated with the operation of the ACP. The Program could be sued for a
risk that was uninsurable or for which the Program was not sufficiently insured. Therefore, in
addition, the Board and Administrator should be fully indemnified for any liability flowing
11
https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_
def_tenprinciplesbooklet.authcheckdam.pdf (last accessed Feb. 22, 2019).
9
from their ACP activities. As set forth in Standard 8.1.g, all attorneys seeking appointment to
the ACP panel should have sufficient professional liability insurance coverage related to their
representation of clients. In furtherance of such requirement, the ACP may wish to negotiate
with an insurance carrier to provide not only the liability insurance relating to ACP
governance, but also malpractice insurance for assigned attorneys, to offer favorable group
rates to counsel.
3.3. Assigned Counsel Administrator. The Board shall appoint an Administrator to
implement the policies and duties of the ACP.
3.3.a. Administrator Qualifications. The Administrator shall be an attorney licensed in
the State of New York who possesses administrative experience and skill in the
representation of criminal defendants and/or adults in family law matters and who
demonstrates integrity and a commitment to quality representation of public defense
clients.
Commentary:
Soon after the enactment of County Law article 18-B, the Judicial Conference offered
guidance to counties in a November 16, 1965 memo regarding the establishment of public
defense systems. “The administrator of a plan should be an attorney other than a judge, a
county attorney, a public defender or a legal aid official.” Over 40 years later, then Chief
Administrative Judge Jonathan Lippman wrote to the then President of the Cortland County
Bar Association: “We have long required that the administrator of a plan should be an attorney
other than a judge, a county attorney, a public defender or legal aid official.” These Standards
will continue to adhere to the guidance provided by the Judicial Conference and Judge
Lippman regarding Administrator qualifications.
12
Initially, it may not be feasible for all
counties to have an attorney as ACP Administrator. In such circumstances, the ACP must
employ a Supervising Attorney as it transitions to compliance with these Standards. See
Standard 4.3.a.
3.3.b. Administrator Selection. The Administrator shall be selected based on merit;
appointed for a stated term set by the Board; serve full-time where feasible; if full-time,
shall not engage in the private practice of law; and may be dismissed prior to the
expiration of his or her term only for good cause, following a hearing.
12
National standards echo the views of the Judicial Conference and Judge Lippman regarding ACP
Administrator qualifications. See e.g. NSC Guidelines, Guideline 2.14 (ACP should be administered by
qualified attorney, licensed in jurisdiction where system operates, with experience in criminal defense and
administration and ability to work cooperatively with other elements of criminal justice system, while
retaining independence); see also NLADA ACS Standards, Standard 3.3.2 (administrator shall be attorney,
licensed to practice in the jurisdiction where program operates, with experience in criminal defense and
administration and possessing reputation for integrity and commitment to program principles). While the
above standards do not address the training or experience Administrators should have regarding mandated
parental representation, attorneys with appropriate parental representation expertise could serve as ACP
Administrators.
10
3.3.c. Administrator Continuity. The ACP shall establish protocols to address personnel
transitions in the operation of the Program.
3.3.d. Administrator Functions. The Administrator shall implement and ensure
adherence to these Standards and ACP policies.
3.3.d.i. Delegating Duties. The Administrator may delegate day-to-day tasks to
foster efficiency, but may not delegate ultimate responsibility for the
Administrator’s primary functions. The Administrator shall not delegate to a
nonlawyer any duties for which legal training is needed.
3.3.d.ii. Spokesperson Role. The Administrator shall act as the spokesperson for the
ACP in matters involving policy and the operation of the Program.
3.3.d.iii. Addressing Issues. The Administrator shall address matters that arise
among the ACP, its attorneys, and other actors in the criminal justice and parental
representation systems.
3.3.d.iv. Planning and Policy. The Administrator shall engage in planning and policy
discussions with the county and other entities regarding decisions affecting the ACP,
assigned lawyers, and public defense clients; and shall be responsible for preparing
and submitting a proposed budget to the funding entity.
3.3.d.v. Assignment Process. The Administrator shall oversee the rotation and
coordination of panel attorneys and implement a fair process for assignments.
Commentary:
While County Law § 722 (3) (1) (a) does not provide a definition of “rotated” and
“coordinated,” national standards and New York experiences provide guidance. The
County Law’s directive to rotate services was a harbinger of later national efforts to avoid
the harms inherent in ad hoc appointments discussed in these Standards, Standard 2.3,
Commentary. The first edition of the ABA Defense Services Standards noted, in the
Commentary to Standard 5-2.3: “The principle that assignments should be rotated, except
where special circumstances have placed the selection of a lawyer out of rotation, has
been incorporated in the plan recently adopted in New York City…pursuant to Article
18-B...” Other standards followed suit. See e.g. NLADA ACS Standards, Standard 4.1
(e). This Standard makes explicit that ACP Administrators, no less than other Chief
Defenders, have a systemic role to play in coordinating assigned counsel services.
Standard 8.1.e. addresses situations in which assignments should be made out of rotation.
3.3.d.vi. Vouchers. The Administrator shall establish protocols for the review of
assigned counsel vouchers for quality-review purposes and to ensure that attorney
billing is accurate.
11
3.3.d.vii. Non-Attorney Professional Services. The Administrator shall approve
applications for the provision of investigative, social work or other professional
services; and shall review vouchers submitted for such services.
B: Provision of Necessary Resources
4. ACP Capacity
4.1. Facilities. Each county shall provide suitable facilities so that the ACP can carry out its
duties under County Law article 18-B and meet these Standards.
4.1.a. Office Space. Each county shall establish an administrative office for its ACP. Such
administrative office shall have a suitable location, and suitable space, technology,
equipment, and supplies to facilitate independent, professional representation.
4.1.b. Technology. Each county shall provide its ACP with the technology necessary to
effectively and efficiently administer the Program. Such technology shall enable the ACP
to communicate efficiently with clients, courts, attorneys, and the public; to collect,
analyze, and report on data; and to track caseloads.
Commentary:
The facilities, office space, equipment, technology, and supplies provided must allow the ACP to
operate effectively and efficiently in a professional work environment; to carry on its activities
independently from other entities, including other legal service providers within the same county;
and to conduct confidential communications among management and staff. The Program should
ensure that private meeting space is available to panel attorneys for in-person meetings with clients
and confidential phone conversations with incarcerated clients. See Standards 4.4 and 4.6.
4.2. Necessary Services. Each county shall ensure that its ACP provides assigned counsel
with access to the following services necessary for quality representation.
4.2.a. Supervision. Each ACP shall ensure that its panel is appropriately supervised by
an attorney or attorneys.
Commentary:
Structured supervision is vital to quality representation. The supervision requirement is
consistent with the reforms delineated in the Hurrell-Harring Settlement, which includes a
mandate that affected counties adopt initiatives to improve the quality of indigent defense as
to supervision. Statewide Hurrell-Harring reforms include supervision as a critical
component of quality improvement. See Executive Law § 832 (4) (c). This Standard will help
effectuate a critical NYSBA Task Force proposal, stating that Administrators should be
provided with adequate resources to better monitor attorney performance and develop
12
structured supervision and consultation.
13
The need for supervision is equally important in
family law matters.
4.2.b. Mentoring. Each ACP shall ensure that every attorney new to the representation
of public defense clients receives a mentor to help the attorney develop high professional
standards and provide quality representation.
Commentary:
Mentoring involves more experienced and highly qualified attorneys working closely with
less experienced attorneys to foster their professional growth and development.
14
It is a well-
recognized means of helping new attorneys develop criminal defense or family law
representation skills, acquire legal knowledge, build confidence and competence, and enhance
professionalism.
15
Mentoring also promotes a culture of collaboration among attorneys. The
NLADA ACS Standards provide that assigned counsel systems “shall establish a policy with
regard to the provision of mentors—more experienced, competent attorneys—to advise less
experienced attorneys...”
16
In its 2010 report on ACPs, the American Council of Chief
Defenders (ACCD) highlighted, as a critical component of new attorney training, mentor
programs in Erie County, New York, and Connecticut.
17
In 2015, the Texas Indigent Defense
Commission contracted with the NLADA to publish a handbook for creating mentor programs
for ACPs. The Texas Commission explained that mentoring is a way to provide new lawyers
with substantive skills and access to a network of public defense colleagues to call upon for
support.
18
The mentoring guide is a useful tool for any ACP seeking to establish a mentor
program.
19
13
See NYSBA Wrongful Convictions Report, at 126; see also Indigent Defense Organization Oversight
Committee, General Requirements for All Organized Providers of Defense Services to Indigent Defendants
(July 1, 1996, as amended May 2011), Section IV (A) (Supervision) (quality representation requires
adequate supervision for lawyers and professionals providing support services; supervision should monitor
compliance with client needs and court requirements).
14
See e.g. Massachusetts Committee for Public Counsel Services, Children and Family Law Program,
Mentoring Program Manual (Revised 2014), at 2. The Manual further describes mentoring as follows: “A
mentor facilitates the mentee’s personal and professional growth by sharing the knowledge and insights
that he or she has learned through the years. Through the mentoring process, the mentor and mentee work
together to reach specific goals and to provide each other with sufficient feedback to ensure that these goals
are reached.”
15
See e.g. Texas Indigent Defense Commission & NLADA, Indigent Defense Attorney Mentoring in Texas:
A Guide to Establishing a Mentor Program (Texas Mentoring Guide), at 3.
16
NLADA ACS Standards, Standard 4.4.1.
17
ACCD, Best Practices Committee, Implementation of the ABA’s Ten Principles in Assigned-Counsel
Systems: Preliminary Report
(September 2010) (ACCD 2010 Report), at 11. In its report, the ACCD noted
that in Erie County, new panel attorneys are mentored by a full-time training attorney for eight to 10 months.
In Connecticut, the statewide public defense program assigns and pays experienced private attorneys to
mentor new panel attorneys during their first year of taking assigned cases.
18
Texas Mentoring Guide, at 3.
19
A link to the Texas Mentoring Guide and other supporting materials can be found at:
http://www.nlada.org/tools-and-technical-assistance/defender-resources/technical-assistance/indigent-
defense-mentoring.
13
A number of ACPs in New York have already developed mentoring programs. These include
the Erie County program highlighted in the ACCD’s 2010 Report.
20
More recently, ACPs in
the Hurrell-Harring Settlement counties (Onondaga, Ontario, Schuyler, Suffolk, and
Washington) have implemented mentoring programs, which range in size and formality,
depending on the needs of the county’s ACP. Westchester County recently implemented a
pilot mentoring project modeled on these programs. The Onondaga County program, the
largest and most formalized such program in the Settlement counties, includes eight to 12
mentors. New panel attorneys with minimal criminal defense experience are required to have
a mentor for at least one year. Other attorneys are voluntarily mentored. Mentoring is also
used for panel attorneys who need extra support or remediation. In Ontario County, which has
a smaller panel, one mentor is available to all attorneys to brainstorm, answer questions,
observe trials, and sometimes serve as a second chair. In both Onondaga and Ontario County,
mentors have helped to discern training needs and have facilitated in-house continuing legal
education programs. Mentoring has helped to improve the quality of advocacy, broken down
barriers, and promoted a sense of collaboration among panel attorneys.
4.2.c. Consultation. Each ACP shall ensure that assigned counsel have access to
resources to assist in addressing complex or systemic issues arising during individual
representation.
Commentary:
Sole practitioners providing mandated representation, as well as their clients, will benefit
significantly when ACPs develop appropriate resources for handling systemic or complex
litigation and/or cases requiring forensic expertise. For example, the Hurrell-Harring
Settlement counties have implemented consultation programs to assist panel attorneys in
addressing such matters. The Ontario County mentor is available to field questions regarding
complex litigation. At the Regional Tompkins-Schuyler ACP, experienced resource attorneys
answer questions, discuss procedures and case strategies, shadow attorneys, and provide
support and professional instruction. In Suffolk County, the ACP has contracted with an
experienced criminal defense attorney to conference cases with panel attorneys. The
Onondaga County ACP offers a cadre of resource attorneys, some with specialized skills, such
as in sentencing, SORA advocacy, motion practice, and using experts. To encourage the use
of consulting attorneys, ACPs employ various strategies, such as calling panel attorneys about
particular cases and sending a weekly email newsletter that includes reminders about using
the resource attorneys and stories about cases involving resource attorneys and successful
outcomes.
4.2.d. Training. Each ACP shall provide its panel with access to appropriate substantive,
procedural, and practical training programs.
Commentary:
Training is appropriate where it is designed to ensure that panel attorneys can provide client-
centered representation, as described in Standard 9.2, as well as in ILS Conflict Standards,
Appellate Standards, and Parental Representation Standards. This concept applies equally to
Standard 12.2, infra.
20
ACCD 2010 Report, at 11.
14
4.2.e. Second-Chair Program. Each ACP shall create a Second-Chair Program to
provide necessary trial experience to attorneys.
Commentary:
Second-Chair Programs are an effective resource to enable panel attorneys to obtain the trial
experience necessary to provide competent representation. The pairing of less experienced
and more advanced attorneys may occur in a few distinct ways. For example, a new attorney
may serve as second chair to a more seasoned assigned counsel whose client’s case is going
to trial. In addition, a panel attorney with some misdemeanor or low-level-felony trial
experience who is assigned to a more complex case or who wishes to begin receiving such
assignments, may gain necessary trial skills via a second-chair opportunity. Finally, Second-
Chair Programs are critical when an experienced panel attorney is assigned to a case involving
a serious charge or complex issues. In such instances, the primary attorney can receive needed
assistance from the secondary attorney, who can learn invaluable lessons in such role.
4.3. Staffing. Each county shall provide its ACP with suitable personnel to carry out its duties
under County Law § 722 (3) and comply with these Standards.
4.3.a. Supervising Attorney. The Administrator shall be responsible for the supervision
of assigned counsel, and such responsibility may be delegated to one or more supervising
attorneys.
Commentary:
The Hurrell-Harring Settlement counties have transformed their ACPs by establishing
supervisory attorney positions for quality oversight. The Programs in these counties, as well
as the ACPs in Erie and Tompkins counties, provide examples that other counties can
replicate. Counties with smaller panels may have an ACP Administrator also serving as the
Supervising Attorney. Regional programs may elect to have, in each county, a supervising
attorney who is familiar with local practice and the local defense bar. The responsibilities of
the supervising attorney include: (1) developing and publishing criteria for periodically
monitoring assigned counsel; (2) regularly monitoring the quality of representation; (3)
developing procedures for certification, recertification and/or removal of assigned attorneys;
(4) instituting training curricula; and (5) acting as a liaison between the judiciary and the
Program, and between individual panel attorneys and the Program.
4.3.b. Administrative Staff. The ACP shall include staff responsible for providing
administrative services, which may include, but not be limited to, clerical support, data
management, and budget and finance support.
4.3.b.i. Hiring Staff. The Administrator shall be responsible for assessing the
administrative staff needs of the ACP and shall oversee the hiring of such staff.
4.3.b.ii. Client’s Rights. The ACP shall ensure that all staff comply with the
Statement of Client’s Rights. See 22 NYCRR § 1210.1.
15
4.3.c. ACP Staff Salaries
4.3.c.i. The Administrator’s compensation should be set at a level commensurate
with the attorney’s qualifications and experience and the responsibilities of the
position. There should be a parity of compensation as between the Administrator
and any other Chief Defender in the county.
4.3.c.ii. The starting pay for ACP legal and administrative staff should facilitate the
recruitment of qualified personnel. Salary levels thereafter should promote the
retention of staff. All salary levels should reflect parity as to similar positions in the
prosecutor’s office or local public defense offices.
4.4. Client Communication. The ACP shall work with justice system and other officials to
ensure that adequate confidential meeting space for client interviews is provided in
courthouses, jails, and prisons. The ACP shall similarly work with officials to establish
means by which incarcerated clients can have confidential communication with their
assigned counsel by telephone or otherwise.
4.5. Full Partnership. The ACP should have a voice in the county’s efforts to maintain and
improve the justice system.
Commentary:
The ACP is a stakeholder and should have a voice in the county regarding systemic public defense
issues. For example, designating representatives to serve on work groups within the justice system
and providing information to policymakers are among appropriate actions by ACPs. The ACP
should continually assess the adequacy of 18-B rates and advocate for increased rates when
appropriate.
21
Government funding of ACPs must be sufficient to provide reasonable
compensation.
22
The perpetual lag in increasing compensation rates is recounted in the 2006 Final
Report to the Chief Judge of the State of New York by the Commission on the Future of Indigent
Defense Services.
23
The problem was also addressed in the Interim Report to Chief Judge DiFiore
issued by the Commission on Parental Legal Representation in February 2019.
24
Stagnant rates
can drive lawyers off panels or into carrying excessive caseloads. The rates were last raised in
2004.
25
Administrators have a duty to document the need for increased rates and bring the issue to
the attention of public officials who can effectuate change.
4.6. Ensuring Adequacy of Facilities for Representation. The ACP shall require that all panel
attorneys have the facilities necessary to provide quality representation.
21
Rates are set forth in County Law § 722-b.
22
NLADA ACS Standards, Standard 3.4, Commentary (ACP that inadequately compensates the attorneys
who provide the actual representation will fail to deliver the quality representation envisioned by these
standards).
23
Kaye Commission Final Report, at pp 8-12. http://www.nycourts.gov/ip/indigentdefense-
commission/IndigentDefenseCommission_report06.pdf (last accessed Feb. 22, 2019).
24
http://ww2.nycourts.gov/sites/default/files/document/files/2019-02/PLR_Commission-Report.pdf
(last accessed June 5, 2019).
25
L 2003, ch 62, pt. J, § 2.
16
4.6.a. Confidential Client Communication Facilities. The ACP shall ensure that assigned
counsel have access to meeting facilities and equipment as needed to ensure client
confidentiality, including a means for clients to contact the attorney by telephone
without the client having to incur burdensome charges.
4.6.b. Legal Research Capacity. ACP services and facilities shall ensure that assigned
counsel have access to adequate research resources. The ACP is not obligated to provide
these support services directly, but should strive to do so where feasible.
5. Timely Representation
5.1. General. The ACP shall implement systematic procedures to ensure the prompt
assignment of counsel for all persons eligible for mandated representation.
5.1.a. Assignment During Eligibility Determination. Provision of counsel shall not be
delayed while a person’s eligibility for mandated representation is being determined or
verified.
5.1.b. Subsequent Appearances. Eligible persons shall have counsel at every court
appearance.
5.2. Counsel in Criminal Cases. Counsel shall be provided as soon as possible to any persons
who are subject to state action due to allegations of criminal conduct. The ACP, working
with other components of the justice system, shall ensure the provision of counsel at first
appearance. Upon request, the ACP shall provide counsel prior to the initiation of formal
charges, when it appears that such charges, and mandated representation, are imminent.
Commentary:
Representation is required at arraignment, usually the first court appearance in a criminal case,
which, like a bail hearing, is a critical stage of a criminal prosecution, as held in Hurrell-Harring
v New York, 15 NY 3d 8, 20 (2010). Early entry of counsel can impact the entire criminal case.
Arraignment is often the attorney’s first opportunity to meet the client and advocate for him or her.
At arraignment, important decisions are made, particularly regarding the client’s liberty.
Preventing pretrial detention is often the key to obtaining a favorable ultimate outcome. Avoiding
the disruptions in housing, employment, and family life caused by detention can allow the client
to better assist in the defense. Counsel entering the case early may also protect the client from
making incriminating statements; commence a prompt investigation; and ensure preservation of
evidence. Counsel may identify and address the client’s immediate needs, such as maintaining
medications or child care, as well as long-term needs, such as substance abuse treatment or income
support. All these actions can affect the case, as well as the client’s personal life. The assignment
of counsel should not be contingent on the filing of formal charges. Instead, upon the request of
the suspect, counsel should be assigned any time an individual has reason to believe criminal
prosecution may commence. This includes when an investigation is initiated; before grand jury
17
testimony; or any time that contact with law enforcement might result in the filing of charges
against the individual. Numerous standards address the importance of the early entry of counsel.
26
5.3. Counsel for Litigants in Family Law Matters. The ACP shall provide counsel, upon
request, to any person legally entitled to representation in family law matters; and the
Program should make representation available during the investigatory stage of a child
protective matter.
Commentary:
Litigants have the right to assigned counsel in a broad range of family law proceedings involving
“the infringements of fundamental interests and rights, including the loss of a child’s society and
the possibility of criminal charges.” Matter of Ella B., 30 NY2d 352 (1972); Family Court Act §
261. Assigned counsel is available in cases involving child custody and visitation, abuse/neglect,
foster care placement and review, termination of parental rights, a destitute child, adoption,
paternity, family offenses, contempt of court for willful violation of a prior court order, and any
other proceeding in which the judge concludes that the U.S. Constitution or New York State
Constitution requires the assignment of counsel. See Family Court Act § 262; SCPA 407; Judiciary
Law § 35 (8). Prompt access to counsel by Family Court litigants is important, whether the case is
between private litigants or is commenced by the state against an individual, such as a child abuse
or neglect case (“state intervention case”). Timely access to counsel helps individuals decide
whether to initiate litigation or how to respond to it; protects due process rights of parents, children,
and families; and ensures that judges have the comprehensive information needed to render sound
decisions.
Representation at preliminary proceedings can affect the progress and outcome of the entire case
and is particularly crucial to effective representation in state intervention cases. Without timely
access to counsel, the client is severely disadvantaged. During the investigatory stage of a state
intervention case, counsel can: seek to ensure that local social services agencies comply with the
law; expedite the provision of appropriate services to the client; prevent unnecessary removal of
children; and sometimes avoid the initiation of a court proceeding altogether. The importance of
timely access to counsel in state intervention cases was emphasized in the Interim Report of the
Commission on Parental Legal Representation.
Representation may start upon the request of an individual seeking to commence, or respond to, a
Family Court proceeding in which assigned counsel is mandated. In a state intervention matter,
upon request, representation may begin when a child protective services (CPS) investigation is
26
See e.g. ILS Conflict Standards, Standard 5 (a) (mandated representation should begin when suspect
invokes right to counsel during investigatory stage); ILS Criteria and Procedures for Determining Assigned
Counsel Eligibility, Standard XII (eligibility determination should be made as soon as possible for persons
who are subject of an investigation); NYSBA Revised Standards, Standard B-1 (representation should be
available upon request during investigation), Standard B-3 (counsel shall be available when person
reasonable believes process will commence that could result in proceeding where representation is
mandated); ABA Ten Principles, Principle 3 (counsel should be assigned as soon as feasible after arrest,
detention or a request for counsel).
18
initiated; after a child has been removed from the individual’s custody due to CPS action; or in
any situation where contact with CPS might result in filing of child abuse or neglect charges. If a
court proceeding is initiated, meeting with the client sufficiently before the initial hearing—a
“critical stage” of a child protective case—is necessary for the attorney to adequately protect the
client’s rights and advance his or her goals. Relevant parental representation standards urge access
to counsel at the earliest possible stage of a state intervention case.
27
Also relevant are the standards
regarding early access to counsel set forth in the Commentary to Standard 5.2 of these Standards.
6. Duration and Continuity of Representation
6.1. Duration of Representation. The ACP shall ensure that all clients receive legal
representation throughout the matter for which representation was approved.
Commentary:
Clients should be represented continuously during the case. The same attorney should represent
the client throughout the trial court proceedings and thereafter, until a new attorney is assigned for
an appeal.
28
Similarly, counsel’s representation should continue at least until a family law client
receives an order of disposition.
29
As set forth in Standard 9.2.n, trial counsel must take steps to
protect the client’s appellate rights. The attorney assigned to the direct appeal should represent the
client throughout the appeal. In a criminal case, this will typically encompass representing the
defendant until the appeal has been decided and there has been a disposition as to any post-
conviction proceedings. After resolution of the appeal in the intermediate appellate court and any
collateral proceedings, appellate counsel should take steps to protect the client’s rights to further
appeal and should continue to represent the client until all available appellate remedies have been
exhausted.
6.2. Continuity of Representation. The ACP shall ensure representation by the same attorney
throughout the trial level, unless the needs of the client or unavoidable circumstances require
otherwise.
7. Budget and Funding
7.1. General. Each ACP shall be provided with sufficient funding to carry out its functions
under County Law § 722 (3) and to ensure quality representation.
27
See e.g. ILS Parental Representation Standards, Standard I (detailing representation that should be
provided prior to court intervention); ABA Standards of Practice for Attorneys Representing Parents in
Abuse and Neglect Cases, Standard 4 (attorney shall actively represent parent in pre-petition phase, if
permitted); and High Quality Legal Representation for All Parties in Child Welfare Proceedings, pages 6-
7, US HHS, Administration for Children and Families, Children’s Bureau (Info Memo ACYF-CB-IM-17-
02, Jan. 17, 2017).
28
See ABA Standards for Criminal Justice, Standard 21-2.2 (a) (counsel should continue to represent
defendant until decision has been made as to appeal and, if appeal is taken, to serve defendant until new
counsel is substituted); ILS Parental Representation Standards, Standard J-1 (same attorney should
represent client throughout case, unless client’s needs dictate otherwise).
29
ILS Parental Representation Standards, Standard J-2, Commentary (representation does not end until final
orders have been entered and client decides not to appeal; appeal has been taken and application for
assignment of appellate counsel has been made; or counsel has been relieved from representing client).
19
Commentary:
Quality representation by counsel in criminal and family law matters ensures the proper
functioning of our justice system. Without adequate funding, these Standards cannot be met, and
effective assistance cannot be provided.
30
In 2006, the Kaye Commission
31
concluded that “New
York’s current fragmented system of county-operated and largely county-financed indigent
defense services fails to satisfy the state’s constitutional and statutory obligations to protect the
rights of the indigent accused.” A complete overhaul of the system was recommended, including
creation of a statewide public defense system overseen by an independent governing body, as well
as adequate funding provided by the Legislature from the State’s General Fund.
32
Similarly, in its
Interim Report, the Commission on Parental Legal Representation recommended that the State pay
for all costs associated with parental representation in child welfare matters to ensure quality
representation and eliminate disparities among localities.
In 2015, the Hurrell-Harring Settlement required the state to pay for specified improvements in
public defense in criminal cases in five counties. In 2017, the state authorized ILS to prepare plans
for counsel at first appearance, caseload relief, and quality improvement to expand statewide the
reforms taking place in the five Hurrell-Harring counties. The state is obligated to pay for those
reforms.
33
The FY 2018-2019 state budget included funding to implement the first year of those
statewide reforms.
34
While the state now plays an important new role in public defense, the
counties retain primary responsibility for funding it. Thus, ACPs and Administrators have an
ongoing responsibility to work with relevant governmental entities to obtain the funding needed
to meet these Standards. See Commentary to Standard 4.5.
7.1.a. Periodic Review. Each county shall conduct periodic evaluation and review of the
ACP budget and communicate the fiscal and programmatic needs of the ACP to ILS.
7.1.b. Compliance with all ILS Standards. The ACP and the county shall make known
to ILS the state funding needed to comply with these and all other ILS standards.
7.1.c. Budget and Record-Keeping. The ACP shall prepare and submit a detailed budget
to the county funding authority and shall maintain records and accounts of expenditures
in accordance with accepted accounting practices and relevant laws and regulations.
7.1.d. Voucher Review. The county and ACP shall not delay the payment of vouchers or
reduce the amount paid to reduce costs.
30
NYSBA Revised Standards, Introduction, final paragraph at 4 (it is vital that funding is adequate to enable
providers to meet or exceed standards). ILS Conflict Standards, Standards 3, 4, 5, and 6 (counties must
ensure that mandated legal services providers have access to and use as needed investigative and assistance
of experts and have time and resources needed to ensure meet performance standards and can spend
sufficient time with clients to establish a meaningful client-attorney relationship).
31
The Commission was created by, and reported to, then Chief Judge Judith S. Kaye.
32
Kaye Commission Final Report, at iii; 2, 4.
33
L 2017, ch 59, Part VVV, amending County Law § 722-e and adding Executive Law § 832 (4).
34
The FY 2019-20 Executive Budget proposal, released on January 15, 2019, recommends full
funding for the second year of statewide implementation of reforms.
20
PART III. ACP RESPONSIBILITIES
A. General Responsibilities
8. Operational Responsibilities
8.1. Attorney Panels. The ACP shall create panels of attorneys who have demonstrated the
skill, experience, and commitment needed to provide quality representation to public defense
clients.
8.1.a. Differentiated Panels. To ensure the competence necessary for a given case, the
ACP shall create specific types of panels based upon the category and complexity of the
case.
8.1.b. Qualifications. The ACP shall create standards and a process for attorneys to
apply to participate on the panel, including specific criteria for acceptance onto any
subpanel.
8.1.c. Regional Recruitment. While recruitment for the panel may begin with the local
bar association, all qualified attorneys shall be considered; and the opportunity to
participate in the panel should be publicized to all attorneys within the ACP’s county or
region.
Commentary:
Counties with few available attorneys and/or large geographic size, as well as those
establishing a regional ACP, should not unduly restrict panel membership based on
geographical considerations. Qualified out-of-county attorneys should not be excluded if their
participation ensures appropriate client access and timely court appearances. See Standard
2.1.a, Commentary. While criteria for placing attorneys on panels may reflect local needs,
they must be consistent with, and ensure compliance with, these and all ILS standards.
8.1.d. No Fee. The ACP shall not charge a fee for applying to, or remaining on, a panel.
8.1.e. Administrator Assignments. The selection of assigned counsel for a case should be
made by, or at the direction of, the Administrator; should ensure that the ability,
training, and experience of panel attorneys are matched to the complexity of the cases to
which they are assigned; and should not be made by a judge or court official, except in
an emergency, in exceptional circumstances, or when an initial assignment of counsel in
one court is continued by a judge in a court to which the case is transferred.
Commentary:
As set forth in Standard 3.3.d.v., assignments should not be made on an ad hoc basis, and the
ACP Administrator shall oversee the rotation of panel attorneys and ensure a fair assignment
process. This Standard addresses the mechanics of the process and exceptions to the rotation
rule that apply to ensure a proper match between case and client or to allow for assignment by
21
a judge. A Program Administrator may select panel attorneys to individual cases or may
provide a list of qualified attorneys from which courts may assign counsel on a rotational
basis. Zealous representation should be encouraged, and patronage should be discouraged.
This standard is consistent with County Law § 722 (4), which requires courts to assign counsel
in accordance with a plan conforming to the requirements of § 722 and permits courts to
exercise their inherent authority to assign counsel if a county lacks an 18-B plan. Special
circumstances may require an assignment out of rotation. These circumstances include
conflicts of interest, previous representation of a client, or special expertise needed to ensure
that an assigned attorney possesses qualifications commensurate with the complexity of a
given case.
35
Judicial appointment should only occur on an interim basis, when no plan has
yet been established, or in other exceptional circumstances, but not as the default or permanent
mode of assignment.
8.1.f. Geographic Areas. To ensure that assigned counsel are available at first
appearance for every client, the ACP may establish geographic areas in which each
assigned attorney may accept cases.
Commentary:
ACPs must often address geographical challenges. The Administrator should consider the
county’s size and terrain, as well as the location and number of courts. One method used by
Administrators to address geographic challenges is dividing the county into distinct
geographic zones and designating specific panel members who reside in each zone to cover
both off-hour arraignments and regular appearances in the courts of each zone. This system
can help reduce mileage costs and ensure that panel attorneys are not overburdened and can
timely appear for all types of court proceedings.
8.1.g. Malpractice Insurance. The ACP should require all attorneys seeking appointment to
the panel to provide evidence of adequate malpractice insurance coverage.
Commentary:
Professional liability insurance can be expensive, and the expense may be difficult to absorb for
newer attorneys. Further, criminal defendants asserting malpractice insurance claims must
surmount high hurdles. See Dombroski v Bulson, 19 NY3d 347 (2012) (plaintiff must have at least
colorable claim of actual innocence and establish that conviction would not have resulted absent
defense counsel’s negligent representation and that pecuniary loss resulted). However, some legal
malpractice claims against defense counsel are viable. See e.g. Arnold v Devane, 123 AD3d 1202
(3
rd
Dept 2014); Brownell v LeClaire, 96 AD3d 1336 (3
rd
Dept 2012). Moreover, a less onerous
35
See e.g. ABA Ten Principles, Principle 6 (defense counsel’s ability, training, and experience match
complexity of case).
www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenpr
inciplesbooklet.authcheckdam.pdf (last accessed Feb. 22, 2019);
NYSDA Board of Directors, Governing Principles for Public Defense Services (2000) (public defense
system must assure that complexity of case is matched to ability of attorney).
https://cdn.ymaws.com/www.nysda.org/resource/resmgr/PDFs--
Resolutions/00_GoverningPrinciplesAdopte.pdf (last accessed Feb. 22, 2019);
22
standard applies in Family Court cases. See e.g. Chaudhuri v Kilmer, 158 AD3d 1276 (4
th
Dept
2018) (to recover damages in a legal malpractice action against counsel in custody matter, plaintiff
had to establish that attorney failed to exercise ordinary reasonable skill and knowledge commonly
possessed by member of legal profession; that failure was proximate cause of actual damages to
plaintiff; and that plaintiff would have succeeded on the merits of underlying action, but for
attorney’s negligence). Criminal and Family Court clients should not bear the risk that no
insurance coverage will be available if they have a viable claim. Therefore, to protect such clients
and provide client-centered representation, panel attorneys should carry malpractice insurance
covering their assigned counsel representation. See Commentary to Standard 3.2.d (recommending
that ACPs consider negotiating to provide for group rates on malpractice insurance for panel
attorneys).
8.2. Requirement that Eligible Clients Receive Representation. The ACP shall utilize
applicable ILS Eligibility Standards.
8.3. Procedures for Compensating Panel Attorneys. The ACP shall establish and maintain
procedures for compensating assigned counsel.
8.3.a. Full Compensation. The ACP shall compensate assigned counsel for all hours
necessary to provide quality legal representation.
8.3.b. Prompt Payment. The ACP shall develop and implement procedures for
compensating panel attorneys that ensure prompt payment.
8.3.c. Additional Payment. On the matter to which counsel is assigned, he or she shall
not seek to be privately retained to represent the client, shall not agree to be privately
retained upon request of the client, and shall neither seek nor accept payment from a
client or any other person. Noncompliance with this rule is a ground for removal from
the panel. Assigned counsel should not seek nor accept payment from a client or any
other source to supplement fees and expenses for non-attorney professional services
authorized by the ACP.
Commentary:
County Law § 722-b (4) provides: “No counsel assigned hereunder shall seek or accept any
fee for representing the party for whom he or she is assigned without approval of the court as
herein provided.” Three Appellate Division Departments have relevant rules. The First
Department rule states that an assigned attorney shall not “in any manner” accept payment in
any form from the person being represented or any other person, except where expressly
allowed by statute or by court order.
36
The Fourth Department has a similar rule.
37
The Second
36
22 NYCRR § 603.30.
http://www.nycourts.gov/courts/AD1/Committees&Programs/DDC/part603.shtml#s60329
(no attorney assigned for a criminal defendant shall demand, accept, receive or agree to accept or receive
any payment or reward or any promise thereof from the defendant or any other person, except as expressly
authorized by statute or court order) (last accessed Feb. 22, 2019).
37
22 NYCRR § 1015.9.
http://www.nycourts.gov/courts/ad4/Clerk/AttyMttrs/Part-1015-Attorneys.pdf
23
Department has stricter requirements, omitting the exception for a court order, prohibiting an
assigned attorney from accepting a retainer from a client in the assigned or any other case,
and requiring removal from the panel of attorneys who violate the rule.
38
8.3.d. Interim Vouchers. Procedures for compensating assigned counsel should include
policies allowing for the payment of interim vouchers for fees and expenses.
Commentary:
This Standard applies to complex and lengthy cases where interim vouchers will support an
attorney’s ability to represent clients and/or help the ACP plan its budget.
8.3.e. Post-Disposition Work. Policies for compensating assigned counsel shall allow for
payment of vouchers in cases requiring post-disposition work.
Commentary:
This standard reinforces ethical principles and appellate standards that prevent an attorney
from abandoning a client during the period between the entry of judgment and the assignment
of an attorney to handle the appeal. A trial attorney should be permitted to file a supplemental
voucher for legal work done during this period, pursuant to Standard 6.1. Such approach will
mean that panel attorneys and their clients are not at a disadvantage as compared to
institutional providers.
8.3.f. Expenses. The ACP shall advise assigned counsel as to which expenses are
reimbursable and shall promptly authorize reimbursement for all reasonable out-of-
pocket expenses.
8.3.g. Changes in Procedures. The ACP shall distribute prompt, clear information
regarding payment or reimbursement procedures to panel attorneys and shall provide
prompt, clear information regarding any changes in such procedures.
8.4. Administrative Responsibilities for Panel Attorneys. The ACP shall establish clear, fair
guidelines regarding the administrative responsibilities of panel attorneys.
8.5. Access to Appropriate Non-Attorney Professional Services. The ACP shall ensure that
individual assigned counsel have access to the non-attorney professional services needed at
every phase of the case.
8.5.a. Range of Services. Such professional services shall include access to investigatory,
expert, social work, mental health, interpreter, and other relevant services.
8.5.b. Direct Services. The ACP is not obligated to provide these services directly, but
should strive to do so where feasible.
(last accessed Feb. 22, 2019).
38
22 NYCRR § 691.16. http://www.nycourts.gov/courts/ad2/pdf/Part691.pdf
(last accessed Feb. 22, 2019).
24
8.6. Quality Assurance Procedures. The ACP shall develop and implement comprehensive
quality assurance procedures, as set forth below.
B: Quality Assurance Provisions
9. General Provisions
9.1. Compliance with Applicable Standards. The ACP shall ensure that assigned counsel are
aware of, and comply with, all applicable performance and ethical standards.
9.2. Client-Centered Representation. The ACP shall ensure that assigned counsel provide
client-centered representation, which, at a minimum, shall include:
9.2.a. Contacting clients as soon as possible after appointment.
9.2.b. Promptly meeting with clients (whether in detention or not) prior to a court
appearance, and as needed, in a space that complies with Standard 9.2.e.
9.2.c. Accepting telephone calls from clients, including from detention facilities.
9.2.d. Timely responding to client inquires.
9.2.e. Ensuring that client privacy and the confidentiality of communications are
protected.
9.2.f. Communicating relevant information about the case to the client in a timely and
respectful manner, and using clear and understandable language, so that the client can
make informed decisions.
9.2.g. Discussing relevant documents with the client and providing copies upon request.
9.2.h. Collaborating with the client to achieve the best possible result, consistent with the
client’s objectives.
9.2.i. In criminal matters, pursuing alternatives to incarceration where appropriate;
providing accurate information about sentencing; reviewing the presentence report with
the client; acting to correct errors in that report; and filing a defense presentence
memorandum where appropriate.
9.2.j. With respect to Family Court cases, providing accurate information about
dispositions; reviewing any (pre)dispositional report with the client; acting to correct
errors in such report; and, where appropriate, filing a memorandum on behalf of the
client advocating an appropriate disposition.
9.2.k. Utilizing appropriate non-attorney professional services, such as investigators,
expert witnesses, sentencing advocates, and social workers.
25
9.2.l. Determining, and explaining to clients, the collateral consequences of any course of
action, and where appropriate, using the existence of these consequences to achieve
better plea negotiations.
Commentary:
The collateral, or “enmeshed,” consequences of a conviction can impact nearly every aspect
of a criminal defendant’s life, including immigration status, family, housing, employment,
education, public benefits, and finances.
39
Since such impact can be more significant than the
sentence imposed, professional standards require defense attorneys to advise clients of such
consequences.
40
In Padilla v Kentucky, 599 US 356 (2010), the U.S. Supreme Court held that
the defendant received ineffective assistance where the deportation consequence of the guilty
plea was clear, but defense counsel failed to advise him such risks. The Padilla analysis
transcends the immigration realm and applies to a wide range of other consequences flowing
from criminal convictions.
41
While it is not always possible to avoid immigration and other
consequences of a conviction, creative plea negotiations may help to ameliorate adverse
outcomes or serve as a rationale for a lesser sentence. Thus, defense attorneys are most
effective when they determine the potential collateral consequences of a conviction; advise
their clients accordingly; and use the consequences as leverage for better case dispositions.
42
Collateral consequences also flow from child welfare investigations and may include being
listed on the State Central Register of Child Abuse and Maltreatment, which can affect
employment opportunities and the ability to become a foster parent or adopt a child.
9.2.m. When representing adolescent and young adult clients—whether charged with
criminal or delinquent behavior or facing loss of the opportunity to parent their
children—developing expertise in adolescent development, custody and care of youth,
and other unique needs of these clients.
39
See e.g. NYSBA, Special Committee on Collateral Consequences of Criminal Proceedings, Re-Entry and
Reintegration: The Road to Public Safety (2006), at 443 (noting that “collateral consequences hinder
successful reintegration by restricting access to the essential features of a law-abiding and dignified life—
family, shelter, work, civic participation, and financial stability”).
40
See e.g. ABA Criminal Justice Standards for the Defense Function (4
th
ed), Standard 4-5.4; NYSBA
Revised Standards, § I-7(e); NLADA Performance Guidelines, §§ 6.3, 8.2.
41
McGregor Smyth, Collateral No More: The Practical Imperative for Holistic Defender in a Post-Padilla
World…Or, How to Achieve Consistently Better Results for Clients, 21 St Louis Univ L J 139,143 (2011).
In his Padilla v Kentucky concurrence, Justice Alito noted that this “case happens to involve removal, but
criminal convictions can carry a wide variety of consequences other than conviction and sentencing,
including civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public
benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of
business or professional licenses.” Padilla, 599 US at 377.
42
When representing non-citizen clients facing immigration issues, defense attorneys should consult with
the Regional Assistance Immigration Center (RIAC) located in their region.
https://www.ils.ny.gov/content/regional-immigration-assistance-centers (last accessed Feb. 22, 2019).
26
Commentary:
Increasing attention to the emotional, social, and physical differences between adolescents
and adults has led to changes in the justice systems;
43
and no doubt more changes will come.
44
The most significant systemic change has been the 2017 Raise the Age (RTA) legislation.
45
By October 2019, this law will divert many 16- and 17-year-olds from the adult system to
Family Court.
46
In all types of proceedings, panel attorneys must be aware of their young clients’ unique
characteristics and needs, which may affect the client-attorney relationship, the legal posture
of the case, and the best possible outcome. Attorneys must gather information needed to raise
salient issues—from the ability of young clients to understand and validly waive rights to the
consideration of age in fashioning appropriate dispositions.
47
The need for expertise on youth
is not limited to representation of those 17 years and younger: relevant adolescent
characteristics may continue to age 25.
48
So in all stages of representation—from developing
a theory of the case
49
to advocating for the best possible disposition
50
—counsel should
consider age-related issues and consultation with experts on this topic.
43
Gary Gately, Experts: Brain Development Should Play Bigger Role in Determining Treatment of Juvenile
Offenders, Juvenile Justice Information Exchange (Dec. 17, 2013).
https://jjie.org/2013/12/17/experts-brain-development-should-play-bigger-role-in-determining-treatment-
of-juvenile-offenders/ (last accessed Feb. 22, 2019).
44
See e.g. Caren Harp, Adolescent Brain Science: Proceed with Caution, Juvenile Justice Information
Exchange (May 8, 2017); Katie Hiler, Research Suggests a New Reason for Teens’ Risky Behavior, Science
Friday (Sept. 11, 2017).
https://www.pri.org/stories/2017-09-11/research-suggests-new-reason-teens-risky-behavior
(last accessed Feb. 22, 2019).
45
L 2017, ch 59, part WWW.
46
Misdemeanor charges will be heard in Family Court from the outset. Nonviolent felony charges will begin
in a Youth Part of adult court, with most then moving to Family Court. Violent felony charges will remain
in adult court, unless removed to Family Court.
47
See e.g. Materials from the 26th Annual Maureen Kearney Rowley CJA Panel Training Seminar
(Philadelphia, PA, May 12, 2017), How Adolescent Brain and Behavioral Development Can Affect
Competency, Culpability, and Other Determinations in Criminal Court.
http://pae.fd.org/files/ABBDP.pdf (last accessed Feb. 22, 2019); Rebecca Harkness, Sue Abrams, & Abby
Eskin, Building a Safety Net for Teen Parents in Foster Care: California’s Approach, Child Law Practice
(ABA May-June 2017),
https://www.americanbar.org/groups/child_law/resources/child_law_practiceonline/child_law_practice/vo
l-36/may-june-2017/building-a-safety-net-for-teen-parents-in-foster-care--californi.html (last accessed
Feb. 22, 2019); and see Terry A. Maroney, The False Promise of Adolescent Brain Science in Juvenile
Justice, 85 Notre Dame L Rev 89 (2013).
https://scholarship.law.nd.edu/ndlr/vol85/iss1/3/ (last accessed Feb. 22, 2019).
48
See e.g. Coalition for Juvenile Justice, What Are the Implications of Adolescent Brain Development for
Juvenile Justice? (2006), at 1, 3.
https://www.juvjustice.org/sites/default/files/resource-files/resource_134.pdf
(last accessed Feb. 22, 2019).
49
See e.g. NLADA, Performance Guidelines, Guideline 4.3.
https://pdc.idaho.gov/wp-content/uploads/sites/11/2016/06/NLADAPerformanceGuidelines.pdf
(last accessed Feb. 22, 2019).
50
See id., Guidelines 8.3, 8.6, and 8.7.
27
9.2.n. Taking all necessary steps to protect, preserve, and enforce clients’ post-
conviction, post-disposition, and appellate rights.
Commentary:
This topic merits special attention to clarify trial counsel’s role and avoid common lapses in
preserving clients’ appellate rights. When a trial court judgment or order has been rendered,
trial counsel should explain such outcome and inform the client of the right to appeal. This
duty applies with equal force in criminal cases in which the judgment of conviction was based
on a plea of guilty and there was a purported waiver of the right to appeal, and in criminal
cases where the judgment followed a trial. Further, this duty applies when intermediate orders
have been entered in Family Court Act article 10 proceedings, as well as when final orders of
disposition have been rendered in any family law proceeding. If the client decides to appeal,
trial counsel must file a notice of appeal or move for permission to appeal if an appeal as of
right does not lie. In addition, counsel must inform the client of the right to poor person relief.
If the client wishes to seek poor person status and assignment of appellate counsel, the
assigned trial attorney should take all appropriate steps to achieve such relief. In criminal
cases, trial counsel may use CPL 380.55 or submit a poor person application. In Family Court
cases, counsel may certify indigency under Family Court Act § 1118. While Appellate
Division Department rules differ regarding counsel’s duty to achieve the assignment of
appellate counsel, counsel should take all possible steps on behalf of a client who is unable to
afford appellate counsel. Trial counsel’s representation should continue until appellate
counsel is assigned, as noted in Commentary to Standard 6.1.
Appellate counsel’s duty of representation encompasses the direct appeal and any appropriate
post-conviction or post-disposition proceedings initiated, as set forth in ILS Appellate
Standards, Standard 20. Counsel should explain the outcome of the appeal or collateral
proceeding and notify the client of the right to further appeal. If the client wishes to pursue a
further appeal to the New York Court of Appeals, appellate counsel must make a motion for
leave to appeal in a criminal case and, in a family law case, file a notice of appeal or seek
leave to appeal, as appropriate. If the client continues to be indigent, poor person relief granted
by the Appellate Division continues for the purpose of filing a notice of appeal or making an
application for leave to appeal to the Court of Appeals (22 NYCRR 500.21 [g]). Appellate
counsel should exhaust all appropriate appellate remedies, as set forth in ILS Appellate
Standards, Standard 16.
10. Attorney Capability
10.1. Knowledge and Experience. The ACP shall establish and maintain systems to ensure
that assigned counsel have sufficient knowledge and experience to provide quality
representation to clients.
10.2. Assessment of Attorneys. The ACP shall develop and maintain systems to (a) determine
which levels of cases are appropriate for each attorney; (b) recertify panel attorneys; and (c)
identify the training needs of panel attorneys.
28
11. Attorney Caseload
11.1. Attorney Caseloads. The ACP shall establish and maintain systems to ensure that
caseloads comply with ILS Caseload Standards.
51
11.1.a. Evaluation of Attorney Caseload. In assigning cases to panel attorneys, the ACP
shall take into consideration: (a) the types of cases being handled; (b) the qualifications
and experience of the attorneys; (c) the distance between the attorney’s office and the
courts or other relevant sites; (d) the time needed to interview clients and witnesses; (e)
the attorneys’ total workload, including the extent of the attorney’s private practice; and
(f) any other relevant factors.
11.1.b. Review of Attorney Caseload. The ACP shall review attorney caseloads on a
regular basis.
12. Training
12.1. Orientation. For new panel members, the ACP shall provide a mandatory orientation,
which should include a discussion of expectations for quality representation and
administrative procedures.
12.2. Initial Training. The ACP shall ensure that panel attorneys receive appropriate
training prior to any case assignments. The ACP may directly provide, or financially
support, this training, but is not required to do so.
12.3. Ongoing Training
12.3.a. Obtaining CLE Training. The ACP shall ensure that all assigned counsel obtain
continuing legal education (CLE) and other training needed so that their skills and
knowledge will enable them to provide quality representation. The ACP should
encourage panel attorneys to utilize national, regional, state, and local sources of
training.
12.3.b. Mandated Representation Topics. The ACP shall ensure that all assigned counsel
allocate a significant portion of their mandatory CLE credit requirement to courses
related to the subject matter of the mandated representation they provide.
12.3.c. Monitoring CLE Programs. The ACP shall monitor CLE programs attended by
assigned counsel.
51
ILS, Determination of Caseload Standards pursuant to § IV of the Hurrell-Harring v. The State of New
York Settlement (2016), https://www.ils.ny.gov/files/Hurrell-
Harring/Caseload%20Reduction/Caseload%20Standards%20Report%20Final%20120816.pdf (last
accessed Feb. 22, 2019). See also Executive Law § 832 (4) (b).
29
12.3.d. Providing Affordable Programs. The ACP shall ensure that assigned counsel
have access to high-quality free or affordable CLE and other training programs relevant
to their work.
Commentary:
Almost 30 years ago, NLADA issued standards stating that ACP Administrators “shall be
responsible for preparing, in accordance with Board specifications, an entry-level training
program,”
52
as well as “periodic in-service training programs to provide systematic,
comprehensive instruction in substantive law and courtroom skills.”
53
ACP Boards are called upon
to “establish regulations requiring [panel] attorneys to attend a specified number of training units
per year.” The Board and Administrator are directed to “encourage attorneys to participate in
training sessions beyond the mandatory training units required by the Board.” Among the many
related standards cited by NLADA was a provision in the ABA Defense Services Standards. A
year later, the ABA issued the Third Edition of those standards, which states: “The legal
representation plan should provide for the effective training, professional development and
continuing education of all counsel and staff involved in providing defense services.”
More recent standards specific to New York provide that local plans or programs should provide
for the effective training, professional development, and continuing education of all attorneys,
other professionals, and staff involved in public defense.
54
Continuing legal education and training
programs shall be made available and affordable for attorneys and staff providing mandated
representation, and public funds shall be provided to enable all attorneys and staff to attend such
programs.”
55
ILS has stated that public defense attorneys and programs should require entry-level
and continuing training relevant to mandated representation cases.
56
Whether developing their own
training program or taking advantage of other available programs, ACPs must ensure that every
panel attorney receives the training needed to deliver quality representation. Standard 7.1
contemplates that sufficient funding will be provided for the requisite training of panel attorneys.
13. Supervision and Mentoring
13.1. Use of ACP Resources. The ACP shall ensure that assigned counsel are aware of, and
utilize, the services described in Section 4.2 of these Standards.
52
NLADA ACS Standards, Standard 4.3.1.
53
Id. at Standard 4.3.2 (b).
54
NYSDA Standards for Mandated Representation, Standard VI.A.
http://66.109.34.102/ym_docs/04_NYSDA_StandardsProvidingConstitutionallyStatutorilyMandatedRepr
esentation.pdf (last accessed Feb. 22, 2019).
55
NYSBA Revised Standards, Standard F-2.
http://www.nysba.org/WorkArea/DownloadAsset.aspx?id=44644
(last accessed Feb. 22, 2019).
56
ILS Conflict Standards, Standard 7(d).
https://www.ils.ny.gov/files/Conflict%20Defender%20Standards%20and%20Criteria.pdf
(last accessed Feb. 22, 2019).
30
14. Performance Review and Remediation
14.1. Performance Review and Remediation Policies. The ACP shall provide assigned
counsel with meaningful, periodic evaluation of their work, based on objective criteria, and
shall publicize the criteria applied.
14.2. Complaint Procedures. The ACP shall establish procedures for the receipt,
investigation, and resolution of complaints from clients, client family members, co-counsel,
opposing counsel, the judiciary, and any other relevant source.
14.3. Remediation. The ACP shall establish policies for remediation to be employed when an
attorney’s performance fails to satisfy applicable criteria and standards.
Commentary:
Quality oversight must include a review of attorney performance, as well as procedures for
addressing substandard performance.
57
The need for oversight is just as important for ACP
programs as it is for institutional providers. Thus, the NLADA ACS Standards call upon ACPs to
establish a system for monitoring attorneys’ performance based on publicized criteria.
58
Further,
programs should establish policies and procedures for remediation.
59
Similarly, the NYSBA
Revised Standards provide that ACPs must provide periodic performance evaluations based on
objective criteria
60
and must have procedures for addressing client complaints
61
and imposing
appropriate remediation.
62
Quality oversight can guide the professional development of panel
attorneys. Several ACPs have recruited experienced attorneys to identify serious performance
issues and offer support and remediation to struggling attorneys. Setting a high bar for
performance—when accompanied by the resources and supports needed to reach that bar—
cultivates pride among panel attorneys and enhances the Program’s ability to recruit committed
panel attorneys. Several mechanisms exist for quality oversight.
Current examples of performance review and remediation approaches employed by ACPs, set
forth below, can provide guidance to other Programs in the development of their own policies and
procedures:
Performance Review and Remediation Policies: The Erie and Onondaga County ACPs have re-
certification processes involving small committees of lawyers who review about one third of the
panels each year. Both attorney review programs set forth criteria to be considered, such as:
effective client communication; knowledge of the law; filing of appropriate motions; effective
representation at pretrial, trial, and sentencing proceedings; and preservation of the clients’
appellate rights. Attorney review procedures should incorporate the average time spent on cases
57
ABA Ten Principles, Principle 10 (“Defense counsel is supervised and systematically reviewed for quality
and efficiency according to nationally and locally adopted standards”).
58
NLADA ACS Standards, Standard 4.4.
59
Id., at Standard 4.5.
60
NYSBA Revised Standards, Standard J-5.
61
Id., at Standard J-7.
62
Id., at Standard J-6.
31
and various aspects of cases; observations of judges and other attorneys; legal writing samples;
client feedback; and an assessment of complaints.
Complaint Procedures: A procedure for addressing complaints ensures that the ACP timely
learns of potential problems and instills a sense of trust in the Program. The Onondaga County
ACP’s Handbook sets forth a model complaint process. The Executive Director reviews all
complaints to identify serious problems that may warrant suspension or removal from the panel.
Most complaints can be handled by contacting the attorney and engaging in problem-solving. For
the few serious complaints, Onondaga County uses a more formal complaint review process. A
three-member Complaint Advisory Committee communicates with the attorney, provides
opportunities to respond, and determines the appropriate action to take.
Remediation: In Onondaga County, if the Complaint Advisory Committee finds that the
complaint allegations are valid, several responsive measures are available, including: counseling;
training or mentoring or both; limitations in the types of cases assigned; suspension; and removal.
The process is designed to promote remediation and support and to thus encourage attorneys to
voluntarily contact the ACP for assistance before problems develop.
