an assigned counsel system

Reframing the Indigent Defense Crisis

Today marks the 60 th anniversary of Gideon v. Wainwright , the Supreme Court’s landmark decision on the right to counsel. In Gideon , the Court found that “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided.” Despite Gideon’s recognition that lawyers in criminal courts “are necessities, not luxuries,” our failure to provide adequate representation to defendants in our criminal courts has been well documented . Legal Scholars have repeatedly described it as a national crisis . Just over the last decade, the Sixth Amendment Center, a nonprofit organization that evaluates indigent defense systems, has published reports documenting how the constitutional right to counsel in our criminal courts is routinely violated in Delaware, Illinois, Indiana, Maine, Mississippi, Nevada, Oregon, Utah, and Wisconsin. During the same period, the American Bar Association has developed evidence-based , state-specific workload standards for public defenders in Colorado, Indiana, Missouri, Louisiana, Rhode Island, and, in January of this year, New Mexico and Oregon which, if followed, would require most offices to double in size.

Our collective indifference toward the right to counsel in our criminal courts undoubtedly has a lot to do with the perception that poor people are to blame for their poverty and that people accused of crimes are probably guilty. Add to that the overrepresentation of people of color in our criminal courts —Black men are about 13% of the male population but about 35% of those incarcerated—and the systemic racism that pervades our culture, and we can see how elected representatives might be able to ignore the ongoing crisis in our criminal courts.

Still, it is hard to see how a lack of sympathy for the accused, skepticism toward the presumption of innocence, and underlying racism have been able to hold back the well-documented and longstanding need for reform. Especially when we consider that a national survey of the American public showed overwhelming support for public defense coupled with an awareness of the need for reform.

I believe there are three additional, overlooked reasons why the decades-long crisis in indigent defense persists. All these reasons are related to how the indigent defense crisis is framed. The first is we fail to accurately perceive how much of our judicial system is devoted to adjudicating criminal cases and how in many of those cases the accused is too poor to hire counsel. We can acknowledge that our criminal justice system is failing to adequately protect the rights of poor defendants, while at the same time seeing that failure as relatively minor, if we think that the defense of the indigent in criminal cases is just a small part of our judicial system.  

But criminal cases make up a very large percentage of the cases filed in state courts. According to the Center for State Court’s Courts Statistic Project , criminal cases made up 24% of the cases filed in state courts in 2020, civil cases made up 21%, domestic relations cases 6%, juvenile cases 1%, and the rest were traffic cases. If we set aside traffic cases and we combine criminal cases with juvenile cases, which are considered quasi-criminal in nature and where the accused also has the right to counsel, then cases where the accused has the right to counsel make up almost half of the annual filings in state courts. And in those proceedings, according to a Department of Justice Report , over 80% of defendants are unable to afford counsel.

So, the most common type of case filed in state courts is criminal and in most of those cases, the accused is too poor to hire counsel. Thus, indigent defense isn’t just a part of our criminal justice system, it is our criminal justice system. And that criminal justice system isn’t just a small part of our judicial system. If we combine traffic and criminal cases, almost 75% of the filings in state courts are initiated by law enforcement. And while the right to counsel does not typically extend to traffic offenses, studies show that the poor are disproportionally impacted by laws and procedures related to driver’s license suspensions. Viewed in this light, the failure to provide adequate representation to the poor in our state courts is not a denial of constitutional rights to some defendants in certain types of cases, but the denial of constitutional rights to most litigants in most cases.

The second reason the indigent defense crisis persists is that while there is widespread agreement that the lawyers who provide representation to the poor in criminal cases have excessive caseloads, there has not been, until very recently, an evidence-based approach to establishing reasonable caseload standards. We can acknowledge that public defenders are overworked, but without a way of quantifying just how overworked they are, we can think that the level of representation they provide is still adequate in most cases.

In the last several years, the American Bar Association has sponsored several public defender workload studies that have relied on an iterative process to come up with reliable workload estimates. These studies have been done in Missouri , Colorado , Indiana , Louisiana , Rhode Island , and most recently, in Oregon and New Mexico. The results are staggering. The Oregon Project Report found that the 592 attorneys with whom the state contracts to provide public defense would have to work over 26 hours every day of the year to provide adequate assistance of counsel based on the number of cases they are currently handling. Oregon would need to hire an additional 1,296 full-time equivalent attorneys, roughly double the number they currently employ, to have an indigent defense system that ensures adequate representation. The New Mexico Project Report and the Rhode Island Project Report came to the same conclusion that those states would have to double the number of attorneys they employ in order to provide adequate representation.

These staffing deficiencies should erode our confidence in the entirety of the indigent defense system. It is not just a few defendants that receive ineffective representation; it is most defendants. Saying that an indigent defense system is functioning with only one-third of the attorneys needed is an admission that the system isn’t functioning at all.   

While the magnitude of these numbers might at first glance seem inflated, we need to keep in mind that the United States leads the world in per capita incarceration rates . To achieve that level of incarceration while ostensibly providing defendants with counsel who can assert procedural and substantive rights designed to make convictions difficult to obtain, it stands to reason that the effectiveness of counsel must be severely compromised.  

The third reason the indigent defense crisis persists is that we fail to consider what percentage of the legal profession is devoted to the defense of the indigent and how that percentage relates to the relative volume of cases where representation is constitutionally required. We can acknowledge and even support a constitutional right to representation in criminal cases while also giving no thought to the number of lawyers we would need to make that right a reality.

The Oregon Project Report found there are 592 attorneys currently working in Oregon in indigent defense. The ABA Profile of the Legal Profession lists Oregon as having 12,158 resident attorneys, which means that only 4.9% of the attorneys in Oregon work full time in indigent defense, despite the prevalence of criminal cases and indigent defendants. The situation is similar in New Mexico where there are 295 attorneys currently working as full-time public defenders and New Mexico has 5,612 resident attorneys which means 5.3% of the attorneys in New Mexico work full time in indigent defense.

It is hard to imagine how the recommendations in these reports to double the number of attorneys working in indigent defense would be implemented. The rates of compensation for assigned counsel are unlikely to motivate the private bar to increase their participation in indigent defense. There are always idealistic law students who want to become public defenders, but law schools aren’t producing enough of them. The University of New Mexico School of Law, the only law school in New Mexico, had 105 law graduates in 2021 while the ABA report recommends adding 136 attorneys to the state public defender office. Oregon has three law schools, Lewis and Clark , Willamette , and the University of Oregon , which produced a combined 405 law graduates in 2021, while the ABA report recommends employing an additional 1,296 attorneys to handle criminal cases.

Once again, while these numbers might seem unrealistic at first glance, we need to appreciate that the indigent defense crisis has persisted for decades. And while funding for indigent defense has been slow to increase, funding for our prison industrial complex has grown rapidly . For almost two decades, public defender salaries have remained stagnant. The National Association of Law Placement found that, in 2004, entry-level public defenders were paid an average annual salary of $39,000. By 2022, that average annual salary had increased to $59,700, but once you consider the increase in the consumer price index , public defender salaries have actually decreased over time. In addition to full-time salaried public defenders, most states also rely on members of the private bar who agree to represent indigent criminal defendants, often referred to as “assigned counsel.” The rates paid to assigned counsel are often so low that they don’t cover overhead costs and, just like the salaries of public defenders, they have remained stagnant for decades. For example, in the State of New York , the hourly rate paid to assigned counsel has not increased since 2004, which has caused a shortage of lawyers willing to accept appointments.

If funding had increased for indigent defense, there would be thousands more public defenders in our courthouses. The job of public defender would be commonplace in the legal profession. Law schools would have a suite of courses designed to adequately prepare students to practice criminal defense. The level of investment in our indigent defense systems recommended by the ABA reports reflects the structural damage done to our justice system by years of legislative neglect.

Treating our indigent defense crisis as an intractable problem confined to a subset of cases in our criminal courts does not reflect the prevalence of criminal cases where the accused is too poor to hire counsel. It ignores recent evidence that current workloads create an environment where ineffective assistance of counsel is not limited to a few cases, but rather is endemic and calls into question the effectiveness of not just individual attorneys, but the effectiveness of entire indigent defense delivery systems. It also fails to appreciate how the responsibility for safeguarding constitutional rights in our criminal courts has been relegated to a small subset of defense attorneys.

Only once we reframe the indigent crisis in relation to the number of criminal cases filed in state courts, the number of public defenders needed to provide effective representation in those cases, and the number of attorneys that are practicing law, can we appreciate the magnitude of the crisis. It is an uncontained crisis that calls into question the legitimacy of our justice system, our commitment to our constitution, and the role of lawyers in our society.

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Standards for the Administration of Assigned Counsel Systems: Black Letter

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Table of Contents   Commentary    Printed Standards

Standard 1.  Scope

These Standards apply whenever private counsel, rather than defender offices or contracting entities are being assigned to provide representation for persons who are financially unable to retain counsel (as defined in Standard 2.3) and who are entitled to representation.

Standard 2.1  Provision of Quality Representation

(a)  Provision of quality representation to all persons eligible under Standard 2.3 is the overarching purpose of these Standards, and shall inform the creation and maintenance of all Assigned Counsel Programs.

(b)  Assigned counsel shall provide to their clients quality representation equivalent to that provided by a skilled, knowledgeable and conscientious criminal defense lawyer to paying clients.

(c)  Assigned counsel shall provide quality representation in all relevant legal proceedings involving their clients.

Standard 2.2  Independence from Judiciary and Funding Source

(a)  The Assigned Counsel Program and individual assigned counsel shall be free from political influence and shall be subject to judicial supervision only to the extent that privately retained attorneys are.

(b)  The Assigned Counsel Program shall operate under and enforce a clear policy protecting the integrity of the relationship between assigned counsel and his or her client.

(c)  Assigned counsel shall reject any attempts at interference with the conduct of a particular case.

Standard 2.3  Financial Eligibility

(a)  Any person who cannot retain private counsel without substantial hardship to that person, or to his or her family, shall be eligible to receive the assistance of assigned counsel in all situations in which a constitutional, statutory or other right to counsel exists.

(b)  Rules, regulations and procedures concerning the determination of initial eligibility and/or continuing eligibility shall not interfere with assigned counsel's independence to advocate for his or her clients on any relevant matter, including the question of their financial status.  Individual assigned counsel shall not have responsibility for determining initial or continuing eligibility of clients.

(c)  Rules, regulations and procedures concerning the determination of initial eligibility and/or continuing eligibility shall not require assigned counsel to make any disclosures of facts concerning his or her clients' financial status beyond those disclosures mandated by the binding ethical rules of the jurisdiction.

Standard 2.4  Contribution and Recoupment

(a)  Persons eligible for representation by assigned counsel (Standard 2.3) shall not be asked to contribute toward, nor to reimburse the jurisdiction for, the cost of assigned counsel. 

(b)  Jurisdictions that do require payment by eligible persons of some portion of the cost of assigned counsel shall establish a procedure for determining the amount of contribution to be paid.  This procedure shall be implemented prior to or early in representation by assigned counsel, and shall include a hearing on the ability of person to pay.

(c)  Any payment by or on behalf of a person represented by assigned counsel toward the cost of representation shall be made to a fund or through a mechanism established for that purpose, and not directly to assigned counsel.  Assigned counsel shall not be responsible for collection of payment. 

(d)  Payment toward the costs of representation by assigned counsel shall never be made a condition of probation or other sentence-related supervision.

Standard 2.5  Early Representation

(a)  It is the responsibility of the Assigned Counsel Program, along with other components of the criminal justice system, to ensure that counsel is provided to the accused at the earliest possible stage in the proceedings.

(b)  Upon request, counsel shall be appointed for persons who have not been taken into custody and who require representation for criminal proceedings.

(c)  Assigned counsel shall contact their new clients as soon as possible after appointment.

Standard 2.6  Duration and Continuity of Representation

(a)  The duration of representation by counsel assigned under these Standards shall be until all appropriate avenues of relief, direct and collateral, are exhausted or until counsel is replaced by subsequent or substitute counsel.

(b)  There shall be continuity of representation by assigned counsel at the trial stage.  There shall be continuity of representation by assigned counsel on appeal, which shall be provided by different counsel than at the trial stage, except when the best interests of the clients dictate otherwise.

Standard 2.7  Waiver Safeguards

(a)  All persons eligible for representation by assigned counsel shall be informed of that right

(b)  Any person who is represented by appointed counsel and who expresses a desire to proceed pro se shall be fully informed, on the record, of the dangers of proceeding without counsel.  Eligible, unrepresented persons shall receive a renewed offer of counsel at every stage of the proceedings against them.

(c)  The legal representation plan shall include a designation of responsibility for ensuring that these safeguards are implemented.

Standard 2.8  Standby Counsel

(a)  If a person eligible for representation by assigned counsel waives counsel on the record, in favor of self-representation, standby counsel shall be appointed.

(b)  Standby counsel shall be available to advise the pro se defendant on preparation and presentation of his or her case, and shall be prepared to represent the defendant if the waiver of counsel is withdrawn at any point.

Standard 2.9  Standards for Performance of Counsel

(a)  The Assigned Counsel Program shall identify, and enforce adherence to, minimum standards for the performance of counsel and shall assist counsel in meeting, and striving to exceed, those standards.

(b)  Assigned counsel shall meet, and strive to exceed, minimum standards for the performance of counsel.

Standard 3.1  Establishment of Legal Representation Plan

(a)  Provision of assigned counsel to eligible persons shall be made according to a written plan consistent with these Standards.

(b)  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.  Three alternative systems are set out in Standards 3.1.A through 3.1.C below.

Standard 3.1.A  Assigned Counsel in All Eligible Cases

Jurisdictions which have no defender office and which do  not contract with any entity to provide defense services shall establish an assigned counsel plan, consistent with these Standards, for affording quality representation to all eligible persons (Standard 2.1).

Standard 3.1.B  Mixed Delivery System Including Assigned Counsel

(a)  Jurisdictions which choose to utilize a defender office and/or contracting entity in conjunction with assigned counsel to provide defense services to eligible persons shall establish a coordinated plan for delivery of defense services.

(b)  The plan shall delegate to assigned counsel a substantial portion of all eligible cases, as well as those cases which the defender office and/or contracting entity cannot handle due to conflicts of interest.

(c)  None of the defense entities in such a system shall be precluded from providing representation in any particular classification of case.

Standard 3.1.C  Assigned Counsel for Conflicts Only

Jurisdictions which choose to utilize a defender office and/or contracting entity as the primary method of providing defense services to eligible persons, and rely on assignment of private counsel for cases which pose a conflict of interest to the primary entity (or entities), shall establish a coordinated plan for the assignment of counsel in those conflict cases.

Standard 3.2.1  Creation of Board

(a)  The Assigned Counsel Program shall be operated under the aegis of a general governing body, the Board.

(b)  The majority 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.

Standard 3.2.2  Functions of Board

(a)  The Board shall establish policy and exercise general supervision over the operations of the Assigned Counsel Program.

(b)  The Board shall also hire an Administrator (Standard 3.3.1).

(c)  The Board shall refrain from interference in the conduct of individual cases.

Standard 3.3.1  Position of Administrator

The Board shall appoint an Administrator who shall implement policy and manage the Assigned Counsel Program, except when the legal representation plan requires that the Director of the defender office also act as Administrator, and the plan provides for the independence of the Director/Administrator from the judiciary and funding source (Standard 2.2).

Standard 3.3.2  Qualifications of Administrator

(a)  The Administrator shall be an attorney licensed to practice in the jurisdiction or jurisdictions in which the Assigned Counsel Program operates.  The experience of the Administrator shall include extensive work in the criminal defense field and in administration.  He or she shall have a reputation for integrity and commitment to program principles.

(b)  The Administrator shall be appointed on merit alone and shall be dismissed only for good cause found upon a hearing before the Board.

Standard 3.3.3  Employment Status and Pay of Administrator

(a)  The office of Administrator shall be a full-time position whenever feasible; a full-time Administrator shall not engage in the private practice of law.

(b)  The Administrator shall be appointed for a stated term of office and shall be compensated at a rate not less than the local presiding judge, chief prosecutor and, where applicable, the chief defender.

Standard 3.3.4  Functions of Administrator

The Administrator shall implement Program policy and manage Program operations.

Standard 3.4  Budget and Funding

(a)  The Board, in consultation with the Administrator, shall submit a complete and sufficient budget to the funding authority.

(b)  The funding authority has a constitutional and policy-based duty to fund the Program in a manner and in an amount consistent with provision of quality representation (Standard 2.1) and sound administration.

(c)  The Administrator shall maintain records and accounts of expenditures in accordance with accepted accounting practices.

Standard 3.5.1  Insurance for Board and Administrators

(a)  The Program shall insure the Board and the Administrator for all insurable risks incident to the Program to a dollar amount specified by the Board.

(b)  The funding agency shall indemnify the Board and the Administrator for all liability arising from their authorized activities pursuant to the Program.

Standard 3.5.2  Insurance for Program Attorneys

All attorneys seeking appointment under the Program shall provide evidence of being adequately insured for all insurable risks to the Program caused by their representation of clients under Program auspices, to a dollar amount specified by the Program.

Standard 3.6  Office Space, Equipment, Supplies

The Program shall be provided with suitable space, equipment and supplies at appropriate locations, or with the funds necessary to obtain them.

Standard 4.1  Establishment and General Operation of Assigned Counsel Roster

(a)  The Board, or at its direction the Administrator, shall categorize by levels of seriousness and difficulty the types of cases in the jurisdiction.

(b)  The Board, or at its direction the Administrator, shall establish standards detailing the qualifications attorneys must have before being assigned cases at each level under paragraph (a), as described in Standard 4.1.1.

(c)  The Board, or at its direction the Administrator, shall establish standards and procedures relating to attorney workload, as described in Standard 4.1.2.

(d)  The Administrator shall establish a roster or rosters containing the names of attorneys who have applied to receive appointments from the Program and who have been found qualified to handle a given level of cases.

(e)  The Administrator shall review all incoming cases, classify them by type and level of seriousness according to the categories established under paragraph (a), and assign them to available, qualified attorneys on the appropriate roster, in rotation.  Departures from assignment by rotation of the names of available attorneys shall be made when such departure will protect the best interests of the person to be represented and may be made when efficient administration of the Program so requires.

(f)  If the Board determines that the number of attorneys to be included on a roster should be limited, the Board shall establish a procedure to ensure fairness in the selection of attorneys from all qualified attorneys who apply.

Standard 4.1.1  Qualifications of Attorneys

(a)  The attorney qualifications established pursuant to Standard 4.1(b) shall include criteria reflecting the experience and training required for assignment in cases of different levels of seriousness, and a requirement that attorneys have the proficiency and commitment necessary to provide the quality representation mandated by Standard 2.1.

(b)  The Program may allow the substitution of equivalent experience for specific experiential requirements, but may not compromise the proficiency and commitment requirements.

(c)  An attorney applying for inclusion on a Program roster, or for reclassification (Standard 4.1.(d)), shall provide to the Administrator information needed for verification of all qualifications offered in support of the application.

Standard 4.1.2  Workloads of Attorneys

(a)  The Board, or at its direction the Administrator, shall develop standards relating to caseload/workload size limits for attorneys who desire to receive appointments from the Program, and procedures through which attorneys whose workloads have become excessive can be relieved of caseload responsibilities that they cannot competently meet.

(b)  The Administrator shall provide notice to attorneys eligible for assignments  of the caseload/workload standards and procedures established by the Board, and of the attorneys' obligation not to accept more work than they can effectively handle.

(c)  The Administrator shall keep records of assignments made to individual  attorneys in a manner that allows the Administrator to avoid assigning an excessive number of cases to any attorney.

Standard 4.1.3  Publicizing the Program

The Administrator shall publicize the existence and functions of the Assigned Counsel Program to the practicing bar, to the criminal justice community, and to the public.

Standard 4.2  Orientation

The Administrator shall ensure that lawyers new to the Program receive a mandatory orientation on Program policies and procedures before they are assigned cases.

Standard 4.3.1  Entry-Level Training

(a)  The Administrator shall be responsible for preparing, in accordance with Board specifications, an entry-level training program.

(b)  Entry-level training shall be mandatory for all attorneys unless they come under exceptions specified by the Board, or the Administrator acting at its direction.

Standard 4.3.2  In-Service Training

(a)  The Board shall establish regulations requiring attorneys to attend a specified number of training units per year in order to remain on a Program roster. 

(b)  The Administrator shall be responsible for preparing, in accordance with Board directives, periodic in-service training programs to provide systematic, comprehensive instruction in substantive law and courtroom skills.  He or she shall also determine, upon request, whether training offered by entities other than the Program may be counted toward the training units required by the Board.

(c)  The Administrator shall ensure that attorneys remaining on a Program roster have attended the number of training units required by the Board.

(d)  The Board and Administrator shall encourage attorneys to participate in training sessions beyond the mandatory units.

Standard  4.4  Supervision of Attorneys

(a)  The Board shall establish policies regarding supervision of assigned counsel working within the Program.  These policies shall include a procedure for handling complaints from clients and others.

(b)  The Administrator shall be responsible for supervision.

Standard 4.4.1  Mentoring

(a)  The Board shall establish a policy with regard to the provision of mentors -- more experienced, competent attorneys ‑- to advise less experienced attorneys on a Program roster. 

(b)  Mentors shall be compensated for mentoring services according to Board specifications.

Standard 4.4.2  Monitoring

(a)  The Administrator, under the direction of the Board, shall establish a system for monitoring the performance of the attorneys on the Program roster(s).  Monitoring shall be done by the Administrator or his or her designee.

(b)  The standard against which Program attorneys are measured shall be that of a skilled, knowledgeable and conscientious criminal defense lawyer adhering to the performance standards established under Standard 2.9.

(c)  The Administrator shall publicize the criteria used in monitoring, and shall inform monitored attorneys of results upon request, upon the decision to impose penalties (Standard 4.5.1), or to seek removal (Standard 4.5.2) and otherwise in the Administrator's discretion.

(d)  The Administrator shall not have access to privileged work product, and shall not invade attorney-client confidentiality.

Standard 4.5  Disciplinary Policies and Procedures

(a)  The Board shall establish policies and procedures for imposition of penalties, including removal from the Program roster, on attorneys for failure to observe Program policies and rules, including failure to provide the quality representation mandated by these Standards.

(b)  No attorney shall be removed from a case in which representation has already begun except with the consent of the client and in accordance with the governing ethical and judicial rules of the jurisdiction.

Standard 4.5.1  Penalties Less than Removal

The Board may permit, and the Administrator may establish, a schedule of penalties less than removal from the Program roster(s) for failure to comply with Program rules, policies, or required performance.  Such penalties shall be coupled with a requirement that the attorney correct the deficiencies in question.

Standard 4.5.2  Removal from Program Roster(s)

(a)  Where an attorney has failed to correct deficiencies for which penalties under Standard 4.5.1 have been imposed, or where egregious deficiencies in performance have occurred, the Administrator shall give the attorney notice, in writing, that removal of the attorney from the roster is contemplated.  Such notice shall be given within a period of time established by the Board (or as part of the legal representation plan).

(b)  Where the alleged actions or inactions of the attorney involve a pattern of failing to provide competent representation to clients, or the Administrator has cause to believe that the attorney cannot provide competent representation to new clients, the Administrator may suspend assignments to the attorney immediately.

(c)  After notice has been given, the Administrator (or the Board, or a Removal Committee of the Board if the Board has so directed) shall, unless the attorney consents in writing to removal, conduct a hearing to determine whether cause exists for removal of the Attorney from the Program roster(s).  The decision to remove or retain the attorney shall be made in writing.

(d)  Where the decision to remove is made by the Administrator or a Removal Committee, the attorney shall have the right to appeal the decision to the Board, whose decision shall be final.   

(e)  Where removal has been for failure to provide competent representation to one or more clients, the Administrator may seek, in court, substitution of counsel in cases already assigned to the attorney in question, if there is reason to believe competent representation is not being provided in those cases.

(f)  Unless removed from pending cases by the court in which the cases are lodged, an attorney removed from the Program roster(s) shall complete work in cases to which he or she was already assigned at the time of removal, and shall be entitled to compensation in the usual manner.  If substitution of counsel is granted, the Program shall compensate the attorney for work done up to the date of removal unless ordered by the court not to do so.

Standard 4.5.3  Reinstatement After Removal

(a)  The Board shall establish a procedure for consideration of a removed attorney's application for reinstatement to the Program roster(s).

(b)  The procedure should include a requirement that the attorney demonstrate that the deficiencies which led to removal will not be repeated.

Standard 4.6  Support Services

The Assigned Counsel Program shall ensure that the many support services necessary for the effective defense of clients are available to assigned counsel at every phase of the cases to which counsel are assigned.

Standard 4.7.1  Assigned Counsel Fees

Reasonable compensation shall be provided to assigned counsel, at a rate commensurate with that paid for other contracted government legal work (e.g. work contracted for by attorneys general, county legislatures or commissions, etc.) or with prevailing rates for similar services performed by retained counsel in the jurisdiction. 

Standard 4.7.2  Method of Compensation

(a)  Attorneys shall be compensated at an hourly rate, with no distinction between rates for services performed in and outside of court.

(b)  The amount of compensation sought shall be reviewed by the Administrator and approved unless there is cause to believe the amount is unwarranted.

(c)  Maximum fee limits shall not be established.  Where they exist, they shall be subject to exception, upon approval by the Administrator acting within guidelines established by the Board.

(d)  Periodic billing and payment during the course of counsel's representation shall be provided for, at least in lengthy cases.

Standard 4.7.3  Payment of Expenses

(a)  The Board shall establish policies as to expenses which will be reimbursed (including reasonable and necessary travel and long-distance and client collect telephone calls) and those which will not.

(b)  Routine office expenses and out-of-pocket expenses shall be paid for by assigned counsel without reimbursement from the Program.  The Administrator, with the guidance of the Board, shall approve reimbursement of extraordinary amounts which were reasonable, actual and necessary.

4.7.4  Only Authorized Compensation

Assigned counsel shall neither seek nor accept payment from a client, or from any source on behalf of the client, that is in addition to the fees and expenses authorized by the Program.

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In Bexar County, A Hybrid Program To Help Indigent Defendants

A new “managed assigned counsel” system has been created in the county to help jailed people get better legal representation.

by Nili Blanck

January 18, 2022, 3:43 PM, CST

Update: This article has been amended to correct errors regarding the Bexar County managed assigned counsel system.

In 2010, Laquita Garcia was wrongfully arrested on a theft charge. Unable to pay the $30,000 bond, she ended up sitting in jail for over a year—longer than the crime’s maximum penalty. Garcia could not afford a private attorney to represent her and was appointed a lawyer by a judge. But Garcia’s lawyer never came to see her while she was in custody. He never called. He never investigated. The first time Garcia saw the attorney, she says, was minutes before she entered a plea deal. She was finally found not guilty of the theft charge by a judge and was released in 2011. After her release, Garcia set about helping those failed by the Bexar County criminal justice system. She’s now the policy coordinator of the Texas Organizing Project (TOP), a nonprofit with bases in San Antonio, Dallas and Houston.

Late last year, Garcia’s group won one of its biggest victories yet—a new system of criminal defense for Bexar County. The managed assigned counsel system, or MAC, will reduce jail time for people who have not been convicted of crimes and secure better representation for indigent defendants, Garcia says. MAC systems have been tried elsewhere in the state— with varying degrees of success —but advocates generally consider them to be an upgrade from the court appointment system used in most Texas cities.  

Garcia’s passion for this work is critical—her story is alarmingly typical in the county, where about 80 percent of criminal defendants are indigent, meaning they’re unable to pay for a private attorney. Two years ago, TOP collected more than 3,000 surveys from local community members asking them what changes they’d like to see in their criminal justice system. The No. 1 response: Get rid of court-appointed attorneys. 

On the surface, the problem of court-appointed attorneys may not seem that significant. After all, the criminal justice system—especially in Texas—is riddled with inadequacies. But for years the topic has been top of mind for criminal justice reformers, who say that attorneys appointed by judges tend to do a poor job of representing indigent clients. 

This system of indigent representation can be traced back to 1963, when the U.S. Supreme Court ruled in Gideon v. Wainwright that every person accused of a serious crime has the right to an attorney. While many other cities across the nation established what are known as “public defenders” for this purpose, Texas took a different track, choosing to rely instead on ad hoc participation from the private bar on a case-by-case basis. 

“What you end up with is something resembling a plea mill ,” says Geoff Burkhart, the executive director of the Texas Indigent Defense Commission (TIDC), referring to the assembly-line manner in which attorneys pressure indigent clients to accept guilty pleas. 

Bexar County is already home to its own public defender’s office, but it’s simply not enough to handle the county’s massive caseload. A report published by TIDC in 2021 found that, although Bexar’s public defender has helped defendants avoid 3,615 actual jail days in a year, its lawyers are strapped with high caseloads that have impeded their ability to take on appeals, meet critical deadlines and, ultimately, help clients get out of jail while they await trial. 

“[There are] basic tasks you have to do in a case,” Burkhart says. “You have to appear in court, communicate with your client, conduct legal research, do factual investigations, file motions. What we’re finding in Bexar County is that [these tasks] don’t always take place.” Bexar County pays a meager $180 fee to attorneys for taking misdemeanor cases. “What can you expect for $180? Are [attorneys] going to go to the scene and take photos for $180?” Burkhart says. The paltry payouts lead some lawyers to take on more cases than they can handle—some attempt to juggle close to 500 cases per year. But there’s little oversight of the system.

Garcia frequently fields calls from incarcerated people who say they’ve had no contact with their appointed attorney. “They have no idea what’s going to happen when they go to court. We even get attorneys who call us on the day of their hearing because they can’t find their client and they want help getting them in the courtroom.” 

Sometimes judges also feel pressured to reward private defense attorneys with cases in the event that these lawyers contributed to their judicial campaigns. The system resembles a “pay to play” situation in which attorneys, often relying on the income from indigent cases, secure spots on the rotating wheel by making political donations. According to a report from Texas A&M University’s Public Policy Research Institute, 15 attorneys in Bexar County were paid for more than 236 misdemeanors, and three attorneys handled more than 174 felonies.  

On October 1, Bexar County joined Harris, Lubbock, Collin and Travis counties in attempting to reform indigent defense by implementing a managed assigned counsel system. As an independent service separate from the judiciary and from the preexisting public defender’s office, the MAC employs a team of administrators who hire and supervise attorneys and replace. Attorneys submit requests to hire investigators or experts to MAC supervisors. The MAC also helps train attorneys and has authority to discipline lawyers who don’t meet its standards. 

MAC advocates say the reform should make all residents of Texas happy, even those who have traditionally opposed expanding indigent defense services. Studies indicate that MAC’s centralization of operations is highly cost-effective because it trims spending on wasteful administrative tasks and on the incarceration of innocent people. Counties that have implemented MACs have seen better rates of compliance with court orders and substance abuse treatment plans. The Lubbock County Private Defender Office, Texas’s first MAC, found that providing caseworkers to clients has reduced recidivism. In Collin County, which implemented a Mental Health Managed Counsel Program, taxpayers saved $630,000 after the program’s enactment in 2014. The average number of days spent in Collin County Jail has decreased and more criminal cases are being dismissed entirely. 

Considering the dire conditions of detention centers across Bexar, helping residents avoid–and stay out of–jail from the start is critical. According to Texas Public Radio, almost half of the 4,500 people in Bexar County Jail were awaiting trial as of October; the Adult Detention was at 88 percent capacity. Although much of Bexar County Jail’s current overcrowding can be attributed to the judicial backlog caused by the pandemic, including the slow transition from in-person hearings to virtual ones, the truth is that these problems are longstanding . 

Burkhart’s TIDC has agreed to fund the MAC with half of the $15 million grant it will receive across 4 years; Jim Bethke, former chief of Lubbock’s Private Defender Office, has been hired to direct the program, where he will oversee 16 salaried individuals. Slated to be the largest MAC in the United States, it’ll also be the first one in Texas to try to overhaul misdemeanor, felony and juvenile cases.  

Garcia is proud of the progress she and others have made in Bexar County, but she still laments the 12 months of her life she lost. “Doesn’t change the fact that I was put in jail for a year for a crime I did not commit,” she says. At any rate, it looks like Garcia, alongside other reformers in Texas, are quickly making up for lost time.

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NACDL - National Association of Criminal Defense Lawyers

Assigned counsel rates information.

The private bar plays a vital role in a healthy public defense delivery system. In large cities, private attorneys fill a critical gap, handling cases in which institutional defenders have conflicts and work overload; in small towns the private bar may be the only public defense provider, managing court-appointments in addition to their practices; and in all instances, the private bar brings a crucial perspective and expertise to the public defense system and the clients they represent. Yet in far too many places these lawyers are asked to labor without adequate compensation.

With hourly rates that may have remained unchanged for decades, fee caps that fail to adequately account for the amount of time constitutionally and ethically effective representation requires, and delays in payment that can leave lawyers uncompensated for months after their representation concludes, the assigned counsel payment structures in many jurisdictions undermines notions of justice and equity in the criminal legal system.

NACDL is committed to ensuring that court-appointed counsel are fairly and timely compensated for their work as well as promoting practices which provide these attorneys with access to training, investigators, experts, and other support services needed to fulfill their responsibilities to their clients. 

In 2018, the Tennessee Supreme Court considered changes to its assigned counsel compensation ($40 per hour for out of court work and $50 per hour for time in court.) The Court's proposal was to eliminate the distinction between out of court and in court work, creating a universal $50 per hour rate. While important to value investigation, research, and client contact as much as courtroom time, the rate was still woefully inadequate. The $50 rate, low when first set in 1994, nearly twenty-five years later had grown to be abysmal. The year before the Tennessee Indigent Defense Representation Task Force in its report, Liberty & Justice for All: Providing Right to Counsel Services in Tennessee,  called for the rate to be at least $75/hour. 

NACDL, in partnership with the Tennessee Association of Criminal Defense Lawyers (TACDL), filed a joint statement encouraging the Court to amend the court rule to assure all those represented by public defense attorneys have counsel who are sufficiently resourced, supported, and trained, have caseloads that allow them to provide meaningful representation at all stages of the proceedings, and are adequately compensated to assure that counsel may fulfill all their ethical and legal obligations to their appointed clients. Unfortunately the Court only adopted its initial rule, creating a universal $50/hour rate. 

TACDL-NACDL Joint Statement

Wisconsin has long had the lowest statutory assigned counsel rate in the nation at $40 per hour, a rate unchanged for two decades. In May 2017, the Wisconsin Association of Criminal Defense Lawyers (WACDL) and others filed a Petition to Amend Supreme Court Rule 81.02  to raise the hourly rate, require the rate track cost of living increases, and bar jurisdictions from utilizing low-bid, flat fee contracts.

NACDL filed a comment in support of the effort and Executive Director Norman Reimer traveled to the public hearing on the matter to lend testimony about the Court's authority and obligation to ensure a fair wage for court appointed counsel. 

NACDL's Comment in Support

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After reviewing the comments and testimony, the Court entered an order , raising it's own assigned counsel rate from $70/hour to $100/hour but declined to address the state's $40 per hour rate.

Read NACDL's Response

The low rates have exacerbated a shortage of lawyers, especially in Wisconsin's rural communities, leaving defendants without attorneys assigned to their cases for weeks or even months at a time. 

Promisingly, Wisconsin’s 2020 budget raises the state assigned counsel rate to $70/hour, but given the Supreme Court’s recent conclusion that its own $70/hour rate was insufficient (and raising its rate to $100/hour), the new rate is still far short of sufficient and may not fully address other structural shortcomings in Wisconsin’s current system. NACDL continues to monitor developments in the state. 

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NACDL REPORTS: GIDEON AT 50

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• Assigned Counsel Rates

Assigned Counsel Plan

News and announcements.

New Case Management System

The Assigned Counsel Plan’s new Case Management and Vouchering System, better known as ACP CASES, will “go live” on August 2, 2023, at 9:00 a.m. The new system will help the Assigned Counsel Plan Team better understand the work being done by the panel members in representing their clients charged with criminal offenses in the courts of the City of New York. It will also streamline the process for voucher submission and approval so that panel members can be paid expeditiously for their work.

UPDATE: There is currently a delay in migrating vouchers created in the old system to ACP CASES. Therefore, those vouchers are temporarily unavailable for processing. No vouchers have been lost or destroyed. This delay has not affected processing vouchers created in the new system (on and after August 2). Attorneys are encouraged to submit new vouchers promptly. We appreciate your patience as the system rollout is completed.

New Compensation Rate for Assigned Counsel Panel Attorney Effective April 1, 2023

Assigned Counsel Plan attorneys are now compensated at the rate of $158.00 per hour for their representation of clients on any type of criminal case. 

New Panel Attorneys Sought for the Criminal Defense Panels

The Assigned Counsel Plan is currently seeking new panel attorneys for the Misdemeanor, Felony, Homicide, and Criminal Appeals panels.  Please visit our “About” page for more information on how to apply for panel membership in either the First Department (the Bronx and Manhattan) or the Second Department (Kings, Queens and Richmond counties.)