AMERICAN BAR ASSOCIATION
CRIMINAL JUSTICE SECTION
STANDING COMMITTEE ON LEGAL AID & INDIGENT DEFENDANTS
REPORT TO THE HOUSE OF DELEGATES
BE IT RESOLVED, that the American Bar Association opposes the awarding of
governmental contracts for criminal defense services on the basis of cost alone,
or through competitive bidding without reference to quality of representation.
BE IT FURTHER RESOLVED, that in order to achieve constitutionally effective
representation, the awarding of governmental contracts for criminal defense
services should in addition to cost be based on qualitative criteria such as
attorney workload maximums, staffing ratios, criminal law practice expertise,
and training, supervision and compensation guidelines.
The right of poor people accused of crime to have effective assistance of
counsel is threatened by the effort of some state or local governments to reduce
public defense expenditures by the use of competitive bidding, which requires
groups of lawyers to underbid each other without consideration of clearly
expressed criteria of quality. While seeking to reduce costs, this practice
encourages lawyers to reduce service to the lowest level in order to obtain a
contract. Contracts should be awarded only after a payment rate has been
determined which is adequate to assure the effective assistance of counsel.
In 1973, the National Legal Aid and Defender Association (NLADA) prepared the
first national profile of criminal defense delivery systems throughout the
United States. The Other Face of Justice identified three types of delivery
systems: public defender systems, in which a paid staff of full or part-time
attorneys provide services; assigned counsel systems, in which private attorneys
accept cases on a rotating basis and submit vouchers for services provided; and
"mixed" systems, in which a combination of public defender and assigned counsel
attorneys provide services (pp. 65-66). At that time, the delivery of services
by means of contracts was virtually unknown. Within the past ten years, a number
of jurisdictions have begun to experiment with the delivery of defense services
by means of contract systems. Because these systems occur primarily at the
county level, and because little has been written about them, a great deal of
confusion and concern has arisen over whether these systems meet the most basic
criteria of any defense delivery mechanism -- the delivery of constitutionally
effective representation provided by one attorney to one indigent defendant.
This recommendation and report recognizes the most alarming characteristic of
many of the developing contract systems -- a concern of contracting officials
(usually county administrators, judges or other court personnel) only with the
cost of delivery of services, rather than an appropriate and cost effective
balance of fiscal and quality concerns. This report will give a brief background
on the definition and scope of contract systems, the application of prevailing
standards to these systems, and the need for a public expression of concern by
the American Bar Association in condemning the award of contracts based on cost
Definition and Scope of Contract Programs
In 1982, ABT Associates, Inc. reported, in an article in NLADA's Briefcase, that
contract defense systems existed in at least 16 states, in one form or another.
The 16 states were Arizona, California, Connecticut, Florida, Idaho, Maryland,
Massachusetts, Michigan, Montana, New Hampshire, New Jersey, New Mexico,
Oklahoma, South Carolina, Vermont, and Washington. (Spangenberg, et al.,
"Contract Defense Systems Under Attack: Balancing Cost and Quality", 39 NLADA
Briefcase 5, Fall, 1982).
This article further recognized that the use of the term "contract" in
describing a program is not used in its strictly legal sense. If the legal
definition were applied, virtually all programs could be categorized as
contractual. The article identified several elements of "contract" programs
which distinguish them from other prevailing delivery systems. These major
elements are the contract negotiation and award process, the parties to the
contract, the services provided, and the payment mechanisms. The concern in this
report and recommendation lies solely with the first of these criteria -- the
use of competitive bidding and the award of contracts based on cost alone.
Parties to a contract for defense services come from a wide variety of
individuals, organizations and agencies. The party requesting services can be
identified as any of the following: a local judge or judges; a county official;
an administrative office of the courts; a state or local public defender agency;
or an independent agency. The party providing services can be identified as any
of the following: a local bar association; another bar group, such as a trial
lawyers association; a law school clinic; a public or private defender
organization; a private law firm; a group of attorneys associated specifically
for the purpose of contracting to provide indigent defense; or an individual
For purposes of this recommendation and report, a contract system need only be
distinguished from a public defender program by whether the lawyers are salaried
by the county or the state. If the lawyers are on salary with the state or
county, the program should be considered a public defender program; otherwise,
it should be labeled a contract system. To distinguish between an assigned
counsel program and a contract program, the assigned counsel system provides
appointments to private attorneys directly from a judge, after which attorneys
submit vouchers to the funding source on a case-by-case basis. If the private
attorneys negotiate directly with the county for a fixed sum of money or for a
fixed number of cases, they should be considered a contract system.
No national standard explicitly sanctions the use of competitive bidding
contract systems based on cost alone.
The ABA Standards for Criminal Justice Relating to Providing Defense Services,
Standard 5-1.2 (1980), states that a "plan for legal representation" should be
based on the "services of a full-time defender organization and coordinated
assigned-counsel system involving substantial participation of the private bar."
None of the standards or commentary relating to the provision of defense
services speak to the use of contracts for the delivery of these services.
Standard 5-3.2 suggests that defender organizations should be staffed with full-
time attorneys prohibited from engaging in the private practice of law.
The earliest specific mention of the use of competitive bidding contracts for
defense services comes in the Report of the National Study Commission on Defense
Services, Guidelines for Legal Defense Systems in the United States (1976).
The Draft Report, Volume I, at page 436, specifically recognizes "contracting
with a non-profit corporation" as one means of defender system structure. The
commentary, however, speaks to the use of competitive bidding and specifically
rejects that practice. Reference was made to the California case of Phillips v.
Seeley, 43 Cal. App. 3d 104, 117 Cal. Rptr. 863 (1974). In that case, while the
reviewing court approved a contract with a private attorney entered into after
informal negotiations, the strong implication of the holding is that a funding
body must have adequate knowledge and judgment of the abilities of counsel to
ensure the ultimate goal that indigent persons be adequately represented by
In its conclusion regarding those jurisdictions which had adopted the
competitive bidding model, the Draft Report states:
The concept behind competitive bidding is that governments ought to
acquire services for the lowest possible cost. However, some jurisdictions
which have adopted this model for the awarding of defender contracts have
failed to recognize other, more important criteria, such as the importance
of legal research in preparing a case, scientific investigation
techniques, and other elements which go toward minimally effective
defense, although they may be more costly for the jurisdiction.
Unlike most business operations, defender offices offer a "product" which
is not susceptible to product specifications or consumer testing.
Defenders provide representation that requires tailoring to the individual
case. The amount and type of investigation needed, pre- and post-trial
motions filed, research, expert witnesses, laboratory testing, etc. will
vary to a great degree in each individual case. Competitive bidding for
the lowest price tends to produce the least amount of services. As a
result, it may be prohibitive to conduct the amount of investigation or
contract out the laboratory work necessary to prove a person's innocence.
Greater pressures may be placed upon a defendant to plead guilty.
Preliminary hearings may be waived in favor of cost-effectiveness. The
preparation of motions and arguing them in court may require more hours
than are allotted in order to remain economically competitive. At stake is
a person's liberty and the question of whether or not he has been justly
accused. The lowest bidder may not provide the scope of services required
for effective representation. Draft Report, p. 440.
The National Legal Aid and Defender Association adopted in February 1984
Guidelines for Negotiating and Awarding Indigent Legal Defense Contracts. In the
introduction, it is stated that the 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
efficiently, and to help ensure that contract programs operate well for the
government, the courts and the citizens they serve." Guideline IV-3, "Awarding
the Contract", specifically states that "under no circumstances should a
contract be awarded on the basis of cost alone."
One of the first major studies of contract programs was conducted by NLADA in
March 1982. After reviewing in detail nine separate contract programs, the
report reached several conclusions regarding the potential harm which might
occur through the use of competitive bidding based on cost alone. (Wilson,
Contract Bid Programs: A Threat to Quality Indigent Defense Services, NLADA,
March 1982). As a result of this report, the NLADA Board of Directors passed a
resolution on May 2, 1982 finding, among other things, that:
... competitive bidding has led to documented shortcomings in the quality
of indigent defense services, such as, but not limited to:
1. lack of fiscal or quality standards in the review of proposed
2. improper and arbitrarily fixed ceilings on per case or per year costs
3. instability through annual processing of contracts;
4. skyrocketing future costs after initial savings;
5. improper conflicts provisions creating a disincentive to withdraw from
cases in which actual conflicts exist;
6. private practice conflicts between the obligation to provide effective
assistance to indigent clients and the money-making clientele of the law
7. inadequate secretarial, investigative, and expert witnesses services;
8. lack of monitoring and evaluation mechanisms;
9. failure to include adequate funds for improvement of skills;
10. lack of broad representation by the private bar; and
11. subsidies to private firms.
The resolution stated that "The National Legal Aid and Defender Association
opposes the continued use and further proliferation of contracts that do not
comply with the ABA Code of Professional Responsibility or recognized national
standards on providing indigent defense services," and secondly, that "The
National Legal Aid and Defender Association strongly urges that, if used,
competitive bidding must ensure quality delivery in compliance with the
constitutional mandate of effective counsel, in addition to the cost efficiency
of such services."
Bar associations in both Washington State and California have also taken
positions on the use of competitive bidding contracts based on cost alone.
The Criminal Law Section of the Washington State Bar Association adopted
recommendations which recognized a "threat" by competitive bidding for contract
defense services in "seeking to reduce costs by having groups of lawyers under
bid each other without consideration of the clearly-expressed criteria of
quality." The Criminal Law Section recommendation opposed competitive bidding
without reference to quality, which, it concluded, encourages lawyers to "reduce
services to the lowest level in order to obtain a contract."
In August 1982, the Seattle-King County Bar Association Indigent Defense
Services Task Force, a blue ribbon panel of Seattle attorneys, reviewed
criticism and comments contained in a report evaluating Seattle's contract
system. As a result of its finding the practice of local government contracting
for defense services on a fixed fee per case basis, without explicit
consideration of quality standards, the Task Force recognized the threat to the
defendant's constitutional right to effective counsel. The Task Force
recommended the creation of a seven-member accreditation committee which would
review defender agencies seeking contracts in King County to determine whether
they meet guidelines adopted by the Task Force, including attorney caseload
minimums, a ratio of staff and investigators to lawyers, training, and
supervision, facilities, compensation, and financial accountability.
In California, the Standing Committee on the Delivery of Legal Services to
Criminal Defendants of the Legal Services Section of the State Bar of California
issued its "Report and Recommendations to the State Bar of California Board of
Governors: Indigent Defense Services in California" (November 1983). While the
recommendations have not yet been acted on by the State Bar's Board of
Governors, among the Committee's several findings were the following:
When cost is the sole basis for the selection of an indigent defense
provider, it may endanger the maintenance of a quality criminal defense
bar and the provision of constitutionally adequate services to the
While grounds do not exist for a blanket prohibition of contracting for
the provision of indigent defense services (this can and should be a local
option), contracts should be awarded only after a fact-finding process by
local authorities determining a fair and reasonable rate of compensation
for anticipated attorney services and one which will serve to assure the
effective assistance of counsel.
California has become perhaps the most sophisticated state in its use of
contract systems. Twenty-one of the state's fifty-eight counties provide defense
representation in part through contract systems. In San Diego County alone, by
1981, the Office of Defender Services administered thirty-one contracts with
groups of private attorneys and a not-for-profit public defender who handled
approximately 25% of the cases. It is not surprising, then, that California
provides the leading case law in this area.
In People v. Barboza, 29 Cal. 3d. 375, 173 Cal. Rptr. 458, 627 P. 2d 188 (1981),
the California Supreme Court reversed the defendants' convictions where two
defendants were both handled by the public defender office. In Madera County,
where the offenses allegedly occurred, the public defender office was paid
$104,000 a year, from which $15,000 was deducted and deposited in a reserve
account which was required to be maintained at all times to pay other defense
counsel who were appointed when the public defender was disqualified due to a
conflict of interest. At the end of the fiscal year, any unexpended balance in
the reserve account was paid to the public defender, who was likewise liable for
any deficiency in the account.
The Supreme Court reversed due to the conflicts arising from the contract
between the public defender and the county itself, since the Court found a
financial disincentive for the public defender either to investigate or to
declare the existence of actual or potential conflicts of interest when
representing multiple defendants. The Court found that the contract in question
contained inherent irreconcilable conflicts of interest.
In a recent unpublished opinion, the Fourth Appellate District of California
reviewed the award of contracts in San Diego County Defenders Program of
California, Inc. v. Nitz, Civ. No. 31141, Court of Appeal, Fourth App. District,
Division 1, July 2, 1984. The reviewing court affirmed an order denying a
preliminary injunction against continuing performance of a lump sum contract
awarded to William A. Milloy by San Diego County to provide free legal services
to persons charged with misdemeanors.
Milloy's contract was one of a series of contracts to provide free legal
services executed by the County. The three-year contract called for a flat fee
of $525,000 payable in 36 equal installments of $14,189, under which Milloy was
obligated to handle up to 2,400 misdemeanor cases during the contract period
($218.75 per case). If the caseload exceeded 2,400 cases, Milloy was to handle
the excess for $62.50 per case.
While the Court did not disagree with the denial of a preliminary injunction,
the Superior Court was ordered to give priority consideration to the setting of
a trial for the case in light of allegations by the plaintiffs that:
1. the contract does not provide a separate payment to the attorney if the
case goes to trial, creating a disincentive to take cases to trial;
2. the contract does not provide separate and additional monies for
investigation, creating a disincentive to fully investigate a case; and
3. the contract does not provide separate compensation for counseling
indigent defendants at arraignment.
Perhaps the most significant decision to be rendered on contract systems (if not
on defender systems in general) is the decision of the Arizona Supreme Court in
State v. Joe U. Smith, No. 6027-PR, Supreme Court of Arizona, April 3, 1984. Mr.
Smith was convicted of burglary, sexual assault and aggravated assault. His
conviction was reversed by the Court on grounds that the Mohave County contract
system, under which the defendant was provided representation, violated the
defendant's right to counsel and due process as guaranteed by the Arizona and
United States Constitutions.
Under the Mohave system, a "bid letter" goes out from the presiding judge of
Mohave County to all attorneys in the county each year. It calls for sealed bids
to be opened at a given hour and date. No limitation is suggested on caseload or
hours, nor are there any criteria for evaluating ability or experience of
potential applicants. The successful bidders are assigned all indigent criminal
cases in the Superior Courts, Municipal Courts, Juvenile Courts, all appeals in
Mohave County, and all mental evaluations.
No suggestion is made in the bid letter that counsel may expect assistance in
any way for support personnel. Any investigator, paralegal, secretary or similar
personnel must be provided by the individual bidder who must also provide his
own office space, equipment, and supplies.
The bids are opened by the presiding judge and transmitted without
recommendation to the Mohave County Board of Supervisors. The bids are listed by
lowest amount and by percentage of the caseload the bidding attorney proposed to
accept. The Board of Supervisors then accepts the bid it desires. With only one
exception, in the past four years, the Court noted, the Board has accepted the
lowest bids fitting into that particular division. The Court stated "the only
low bid ever rejected was one submitted by an attorney who has been held in
contempt by this court for failing to file a required brief in an appeal and who
has been the subject of other repeated complaints." Opinion, p. 10.
In reaching its decision, the Arizona Supreme Court made reference to both the
ABA Standards for Criminal Justice and the NLADA Guidelines for Negotiating and
Awarding Indigent Legal Defense Contracts, then in draft form. Noting that the
Guidelines provide that no full-time attorney should handle more than 150
felonies per year, the Court found that in the 11 months of the year in which
Mr. Smith's case was tried, the defendant's counsel handled a caseload of 149
felonies, 160 misdemeanors, 21 juvenile cases, and 33 other types of cases. This
was for part-time representation only.
In reversing the conviction of Mr. Smith, the Court found that the Mohave County
system fails to conform with national standards arid guidelines for four
1. the system does not take into account the time that the attorney is
expected to spend in representing his share of indigent defendants;
2. the system does not provide for support costs for the attorney, such as
investigators, paralegals, and law clerks;
3. the system fails to take into account the competency of the attorney;
4. the system does not take into account the complexity of each case.
Opinion, p. 14
No system for the provision of defense services is without flaws. This
recommendation and report does not condemn the use of contracts for the delivery
of defense services under all circumstances. However, given the alarming trend
recognized in studies and case law noted above, the time has come to condemn the
use of contract systems based on cost alone. To do otherwise is to render the
constitutional right to counsel hollow for those defendants served by low bid
Paul T. Smith
Section of Criminal Justice
F. Wm. McCalpin
Standing Committee on Legal Aid &