2018 PDC Town Hall MeetingInformation regarding the upcoming negotiation of administrative rules

April – May 2018

Improving Public Defense

in Idaho

PDC: Who we are and what we do

Rules in Effect: A Review

Standards for Defending Attorneys: Workload Standard

Rules Governing Uniform Data Reporting Requirements and Forms for Defending Attorney Annual Reports

Rules Governing Contracts and Core Requirements For Contracts Between Counties and Private Attorneys for the Provision of Indigent Defense Services

Idaho State Public Defense

Commission

Indigent Defense Financial Assistance Indigent Defense Grants

Joint Incentive Grants

Extraordinary Litigation Costs (ELF)

Training for Defending Attorneys Scholarships

Programs

Indigent Defense Technical Assistance Regional Coordinators

Creation of Indigent Defense Standards Constitutional requirements

Best Practices

Idaho’s Principles of an Indigent Defense Delivery System

Collection of data Annual Reports of Defending Attorneys

Oversight and Enforcement of Standards

Rule Status Descriptive Summary

61.01.01 – Rules Governing the Administration of Training Funds Allocation for Defending Attorneys

Final Rule (eff. May 1, 2017)This rule provides for the administration, use and distribution of appropriated training funds in order to provide training to Idaho’s Public Defenders.

61.01.02 – Rules Governing Uniform Data Reporting Requirements and Forms for Defending Attorney Annual Reports

Negotiated Rulemaking: Requests for meetings due May 31, 2018

This rule will provide the procedures and forms defending attorneys must use to comply with Idaho Code §19-864.

61.01.03 – Rules Governing Contracts and Core Requirements For Contracts Between Counties and Private Attorneys for the Provision of Indigent Defense Services

Negotiated Rulemaking: Requests for meetings due May 31, 2018

This rule will provide the terms and requirements for county indigent defense service contracts.

61.01.04 – Rules Governing Procedures and Forms for the Application and Disbursement of Indigent Defense Grants

Temporary Rule (eff. March 3, 2017)This rule provides the procedures that counties must use in order to apply for Indigent Defense Grants and the steps taken by the PDC to review the applications and disburse grant monies.

61.01.05 – Administrative Rules Not yet promulgated

61.01.06 – Rules Governing Procedures for the Oversight, Implementation, Enforcement, and Modification of Indigent Defense Standards

Final Rule effective May 1, 2018This rule provides the steps for oversight and enforcement of Indigent Defense Standards.

61.01.07 – Rules Governing the Standards for Defending Attorneys

Final Rule (eff. May 1, 2017): Includes IPIDDS and Standards for Defending Attorneys – edition 2016

Final Rule effective May 1, 2018

This rule provides the standards that must be met by counties and defending attorneys in order to provide constitutional representation of indigent defendants.

61.01.08 – Rules Governing the Administration of Idaho’s Indigent Defense Delivery Systems –Rule Definitions

Final Rule Effective May 1, 2018: Includes Standards for Defending Attorneys – edition 2017Negotiated Rulemaking: Requests for meetings due May 31, 2018

This rule consolidates the documents incorporated by reference and the definitions of terms used by the PDC in its rules.

Idaho’s Principles of an Indigent

Defense Delivery System

Idaho Code § 19-850(1)(a)(vii) -

The delivery of indigent defense services is independent

Attorneys have confidential space to meet with client

Workload controls are in place

Funding of public defense is independent

Ability, training, and experience match case complexity

Offices provide vertical representation

Resource parity between defense and prosecution

Continuing legal education

Quality assurance through routine review

Representation free from conflicts

COMPLIANCE BY MARCH 31, 2018

o First Appearances• Video conferencing acceptable

o Vertical Representation• Same attorney at all critical stages post first

appearanceso Continuing Legal Education

• 7 units of CLE per year related to indigent defenseo Private Meeting Space

• At the jail• At the courthouse

o Effective Representation• Workload must allow for the rendering of

constitutional representation

COMPLIANCE BY MARCH 31, 2019

o Investigators and Experts

• Attorneys should use investigators when appropriate

• Attorneys shall conduct an independent investigation as promptly as practicable

• Attorneys shall use experts when reasonably necessary to prepare defense

o Oversight and Enforcement

• Defending attorneys shall submit annual report by November 1 of each year

• Counties and Defending attorneys will be reviewed for compliance with indigent defense standards

• Incremental approach to avoid the drastic measures of withholding grant funds or taking over a system to fix deficiencies

o Capital Defense

• Defense team shall consist of at least two attorneys, an investigator and a mitigation specialist

• To qualify as capital counsel attorney shall complete comprehensive training program and meet other qualifications per standards

• Attorneys who do not meet the above may still apply to be qualified via an alternate method as outlined in the standards

2018 Negotiated Rulemaking

Workload Standard

Annual Reports of Defending Attorneys

Indigent Defense Services Contracts

Standards for Defending Attorneys:

Workload Standard

1. System Requirements

2. Attorney Responsibility

Workload Standard

System Requirements

Idaho’s Principles of an Indigent Defense DeliverySystem: Defending attorneys’ workloads should permiteffective representation.

Idaho Code § 19-850(1)(a)(vii)(3).

ABA Ten Principles of a Public Defense DeliverySystem: Defense Counsel’s workload is controlled topermit the rendering of quality representation.

NLADA Guidelines for Legal Defense Systems in theUS: In order to achieve the prime objective of effectiveassistance of counsel to all defender clients, which cannotbe accomplished by even the ablest, most industriousattorneys in the face of excessive workloads, everydefender system should establish maximum caseloads forindividual attorneys in the system.

Workload Standard

System Requirements

ABA Eight Guidelines of Public Defense Related to Excessive Workloads

1. Public Defense Provider avoids excessive lawyerworkloads

2. Continuously monitors workloads

3. Professional and ethical responsibility training

4. Managers determine whether excessive workloads arepresent

5. Prompt actions taken to avoid excessive workloads

6. File motions with court when workloads are excessive

7. Resist judicial direction that improperly interfere withprofessional and ethical duties

8. Appeal court’s refusal to stop assignment of cases

Workload Standard

System Requirements

Characteristics of a successful workload program

1. Sound management information system based onreliable and empirical data

2. Statistical reporting procedure that has been acceptedby the funding sources

3. Sound managerial/administrative system

4. Ability to tie standards to budget requests

5. A rule that kicks in once workloads reach an excessivelevel to prevent attorneys from being assigned toadditional cases

6. Ability to mobilize strong local support

A lawyer who has so much work, somany cases, so many other clients thatshe is materially limited in her ability toeffectively represent another client hasan impermissible personal conflict ofinterest and cannot assumeresponsibility for an additional client.

Workload StandardAttorney

Responsibility

Idaho Rules of Professional Conduct

Rule 1.1 Competence

Rule 1.3 Diligence

Rule 1.4 Communication

Rule 1.7 Conflict of Interest: Current Clients

ABA Standards:The Defense Function

Standard 4-1.2

ABA Standards: Providing Defense Services

Standard 5-1.1

Workload Standard

Definition of a case

National Center for State Courts and the Conferenceof State Court Administrators: Count each defendantand all charges involved in a single incident as a singlecase.

National Advisory Commission: a single charge orset of charges concerning a defendant (or other client)in one court in one proceeding.

Things to Consider

Workload Standard

Definition of a case: IDAPA 61.01.08

(a) A case consists of all related charges from a single incident, transactionor occurrence filed within a single case number, handled by onedefending attorney. A probation violation or motion for contempt iscounted as a separate case.

(b) A felony case is counted as follows:(i) A case filed as a felony is counted as one felony, whether it is dismissed,remanded, pled, or tried to completion.

(ii) A case filed as a felony that is remanded to magistrate court is counted onceas a felony assuming vertical representation occurs.

(iii) A case filed as a misdemeanor that is subsequently amended to a felony iscounted once as a felony, assuming vertical representation occurs.

(c) Post-judgment motions, such as those requesting early termination ofprobation or a reduction in sentence pursuant to Idaho Criminal Rule 35,are not counted as a case.

(d) If two or more cases are consolidated prior to significantrepresentation being undertaken on each individual case, then theconsolidated case is counted as one case. If significant representation hasoccurred prior to consolidation, the cases in which such representation hasoccurred shall be counted as separate cases.

Things to Consider

Workload Standard

Effective defense work requires:

Client contact

Investigation

Legal research

Social work

Conferences with prosecutors

Case preparation

Zealous advocacy in court

Other routine duties include, but are not limited to:

Consultation with colleagues

Attendance at training sessions

Professional development reading

Administrative tasks

Supervisory duties

Things to Consider

Workload Standard

Adequate support staff

Paralegal

Investigator

Secretary/Administrative Assistant

Travel

Case complexity

Individual client needs

Mental health

Substance abuse

Interpreters

Collateral consequences

Training and experience of attorney

Things to Consider

Workload Standard

This is just the beginning

This is just one part of an overall program to ensure constitutional representation of indigent defendants

Strategies for keeping workloads manageable

Working relationships with judges, prosecutors, pretrial service programs, and policymakers

Maintain constant dialogue with stakeholders

Establish ties with community groups that provide health care, employment training, counseling, etc.

Develop user-friendly system to record case statistics and create reports for funding requests

Annual Reports of Defending Attorneys

Idaho Code §§ 19-850(1)(a)(ii) and 19-864

How are things going?

Why Track Data?

Data collection and use will make us better managers and more effective advocates

Improved client representation

Budget and resource justifications

Advocating for changes to public defense system practice or policy

What is Data Tracking?

Document, document, document

• Case type

• Caseload

• Case outcome

• Client demographics

• Number of attorneys

Empirical information about:

• Consequences to clients

• Overall justice system’s efficiency

• Program staffing stability

• Consistent

• Case management system

You cannot improve what you cannot measure.

Indigent Defense Services Contracts

Idaho Code §§ 19-850(1)(a)(iii) and 19-859(4)

Characteristics of Deficient Contract

Systems

Cost containment prioritized over quality

Incentivizes pleading cases rather than going to trial

Lawyers with fewer qualifications and less training end up with the greater percentage of the work

Offers limited training, supervision, or continuing legal education to new attorneys

Rewards low bids rather than realistic bids

Unrealistic caseload limits or no limits at all

Doesn’t provide for support staff, or investigative or expert services

Doesn’t provide for independent monitoring or evaluation of performance outside of costs per case

Doesn’t include a case-tracking or case management system

Doesn’t include a strategy for case weighting

Characteristics of Effective Contract

Systems

Includes minimum attorney qualifications

Provides support costs such as paralegals, investigators, and social workers

Independent oversight and monitoring

Workload limits

Limitations on the practice of law outside the contract

Provides for completion of cases if the contract ends, is breached or not renewed

Case management and tracking requirements

Includes guidelines on client contact and notification of appointment

Mechanism for evaluation

Suggested Model Contract

TermsCreated 2014

Included:

1. Case Types

2. Reports and Inspections

3. Record Keeping

4. Performance Expectations

a. ABA Ten Principles

b. NLADA Performance Guidelines & Performance Requirements

5. Training Requirements

6. Experience Requirements (by case type)

7. Definitions

Suggested Model Contract

TermsCreated 2014

Not included:

1. Requests for Proposals and Awarding the Contract

2. Indigent Defense Standards

a. Workload Standard

3. Establishing Conflict Processes

4. Compensation

5. Attorney Expenses, including investigative, laboratory, legal/litigation experts, and interpreter services

6. Default Provisions

Resources

Workload Standard• ABA Standards for Criminal Justice: Defense Function, 3d ed. (1993)

• ABA Eight Guidelines of Public Defense Related to Excessive Workloads (August 2009)

• NLADA Guidelines for Legal Defense Systems in the US

• NLADA Performance Guidelines for Criminal Defense Representation (2011)

• When Excessive Public Defender Workloads Violate the Sixth Amendment Right to Counsel Without a Showing of Prejudice, American Constitution Society (2011)

• Keeping Defender Workloads Manageable, Bureau of Justice Assistance (2001)

• Idaho Workload Study, Boise State University’s Idaho Policy Institute (2018)

Annual Reports of Defending Attorneys• NLADA Increasing Analytics Capacity: A Toolkit for Public Defender Organzations

(2016)

• Basic Data Every Defender Program Needs to Track: A Toolkit for Public Defender Organizations (2014)

• Annual Reporting Form for Defending Attorneys, Idaho State Public Defense Commission (2016)

Indigent Defense Service Contracts• NLADA Guidelines for Negotiating and Awarding Governmental Contracts for

Criminal Defense Services (1984)

• NLADA Model Contract For Public Defense Services, Criminal Courts Technical Assistance Project, American University Justice Programs Office (2000)

• Contracting for Indigent Defense Services: A Special Report, Bureau of Justice Assistance (2000)

• Suggested Model Contract Terms, Idaho State Public Defense Commission (2014)

2018 PDC Negotiated Rulemaking MeetingsJune – Each Judicial District

Check Website for dates in May

You are cordially invited to attend …