Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services (1984)

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Introduction to the 1984 Edition

These Guidelines represent the combined efforts of defender members of the National Legal Aid and Defender Association, the Defender Committee and the Defender Division staff to address the problems of providing by competitively bid contract legal representation for poor persons accused of criminal offenses. Some competitively bid contract defense programs have proven neither as economical as hoped nor as satisfactory in providing good representation as the federal and state constitutions may require. Nevertheless some state and local governments are establishing competitively bid contract defense programs, in some instances as the sole means of providing representation to poor defendants. These Guidelines are intended to help local and state governments and agencies which choose to establish contract defense programs and which choose to award contracts on a competitive basis to do so constitutionally, and to help insure that efficient contract programs operate well for the government, the courts and the citizens they serve.

These Guidelines focus on the contracting process. Contracts written, negotiated and entered into in accordance with these Guidelines and with consideration of the issues these Guidelines raise should, by their terms, help ensure that high quality service will be provided to those defendants unable to afford counsel. Such contracts should also provide to the criminal justice system effective defense services which comport with government's other interests in efficiency, economy and accountability. The Guidelines are intended to be a practical document. Public agencies or officials charged with designing contract programs for indigent criminal defense may use these Guidelines to help avoid problems frequently encountered and to design, negotiate and award contracts which will encourage, rather than discourage, zealous, effective and efficient representation of indigent accused.

There are now several published standards which spell out the objectives and minimum requirements for public defender and assigned counsel programs and for attorneys engaged in private criminal justice. These include the American Bar Association's Standards for Criminal Justice (Second Edition 1980), NLADA's Standards for Defense Services Justice (1976), the Report of the National Study Commission on Defense Services, Guidelines for Legal Defense Systems in the United States (1976), and the volume of standards published by the National Advisory Commission On Criminal Justice Standards and Goals titled Courts (1973). These standards do not directly address the unique characteristics or special problems of competitively bid contract defense programs. However, they do speak to the quality of defense services generally. Their provisions are as relevant to attorneys practicing under contract as to assigned counsel or attorneys in full-time public defender offices. Where such standards are in any way relevant or useful to competitive bid contract defense systems these Guidelines refer to them as "Related Standards.” But while these Guidelines intend to reflect existing standards and to help implement them in the context of competitively bid contract defense programs, they do not restate them and are not a substitute for them. These

Guidelines draw upon several published and unpublished sources, including the various Standards referred to above. The text of, and comments to, these Guidelines contain short citations to those sources. Full citations are listed in Appendix A (Bibliography of Materials Cited) behind the short citation form by which they are referred in the text.

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Part I: Definitions of “Contracting Authority” and “Contractor”

Guideline I‑1:  Contracting Authority. 

Guideline I‑2:  Contractor. 

Part II: Policy Board

Guideline II‑1:  Purposes. 

Guideline II‑2:  Members. 

Guideline II‑3:  Duties. 

Part III: Elements of a Contract for Those Unable to Afford Defense Services 

Guideline III‑1:  Parties. 

Guideline III‑2:  Scope of Contract. 

Guideline III‑3: Determination of Eligibility.

Guideline III‑4:  Term of Contract. 

Guideline III‑5:  Definition of "Good Cause.” 

Guideline III‑6:  Allowable Caseloads. 

Guideline III‑7:  Minimum Professional Qualifications. 

Guideline III‑8:  Support Staff and Forensic Experts. 

Guideline III-9:  Investigators.

Guideline III‑10: Compensation.

Guideline III‑11:  Special Case Compensation.

Guideline III‑12: Case and Work‑Overload.

Guideline III‑13:  Conflicts of Interest. 

Guideline III‑14:  Payment. 

Guideline III‑15:  Financial Records. 

Guideline III‑16:  Supervision and Evaluation. 

Guideline III‑17:  Professional Development. 

Guideline III‑18:  Standards of Recommendation. 

Guideline III‑19:  Confidentiality. 

Guideline III‑20:  Insurance. 

Guideline III‑21:  Retention of Files. 

Guideline III‑22:  Management System. 

Guideline III‑23:  Duration of Representation. 

Part IV: Contracting Procedures

Guideline IV‑1:  Role of the Contracting Authority. 

Guideline IV‑2:  Role of the Policy Board. 

Guideline IV‑3:  Awarding the Contract.