Dear [attorney name]
My office has Judge Michot’s Order appointing you as counsel on the referenced case or cases. Thank you for volunteering as we face serious funding problems and your participation as a volunteer lawyer who will not be paid represents the best tradition of Bar Membership. Since you’re not working under my office and the public defender statute, I want to point out some important things about the criminal practice, including changes in the way the public defenders have to work today.
Just to be really clear about everything, my office is now on a skeleton crew and we do not now have any money for payment of outside counsel, counsel’s expenses, or expert witnesses. When we get funding I will have a huge backlog of cases. There still won’t be money for volunteer counsel and the court can’t require me to pay you out of PDO funds. So far the Judges have not agreed to release funds for payment to you or to my conflict panel lawyers or anyone else. I see no circumstances in which you will be paid.
Nor can the court require you to be paid by clients, since the authority for that is for payment to the Public Defender Fund in the district. All of that is in Title 15:151 et seq.
Please note that current standards adopted in through Legislative Concurrence and in the Administrative Code (Title 22) provide some basic guidance for work on indigent cases. Some of the major differences from years past include a prohibition against you pleading a case without learning about it prior to your court date. Communication with the client and consultation with the client, who is the person to decide what to do with their case. Document in the file to show everything you do.
I’m attaching some of the most prominent standards for you. The way to think of it now is handling a case for a public defender client has no less the obligations for ethical and effective work than any other case you do. There is not any lower standard.
A full copy of the standards is being provided to the Bar Association and they can make them available. They are about 82 pages but you can look at the stages of your case for specific ones that apply. My office is impaired and we certainly cannot provide sufficient training in 90 minutes if you have never handled a criminal case or done any court work.
Custody of the File and Maintenance of the File
The file belongs to the client and so your obligation to the client is to keep the file, even after your work. General rule is 10 years. My office won’t keep the file as you are not employed by or supervised by my office, and so the client is yours just as any client would be, paying or not. We do not take on any burden related to this case at any time. We do not accept the client file from you upon completion of the work.
Appeal of the Case
If you go to trial, the good news I can tell you that the Louisiana Appellate Project handles all of the appeals from indigent client work, and all you have to do is file a Motion and Order for Appeal which you can find on the LAP website at http://appellateproject.org/forms.htm. Use the one for the 15th Judicial District as it tells the clerk where to send the stuff.
An appeal only comes up after final judgment in the case. If there is a pre-trial motion hearing or some other error you want to have reviewed, that is Supervisory Writs. The case is briefed by you and you attach transcripts and minutes, among other things
Sorry, but as with everything else, I cannot help you with forms or motions as we are under a huge workload of moving files and dealing with clients. You are ON YOUR OWN.
We do not have malpractice coverage for you as a volunteer lawyer. Check your malpractice policy as the indigent defense is a special coverage in some insurance programs so it is not automatically covered by your policy.
The training March 9th was brief and pretty much can only give you some ideas, not much more. I will try to provide some guidelines and checklists. You must have access to the Criminal Code, which is on line or in a paperback West if you don’t do any criminal and have it already. My remaining lawyers can’t be relied on to help you but I’m sure when they can they will.
The good news is we do some free CLE and so when we get back to normal you might be able to get your hours free or deeply discounted in a series every four months.
LOUISIANA HABITUAL OFFENDER LAW – R.S. 15:529.1 and other sentencing enhancements
When a person enters a guilty plea to a felony, the lawyer has to understand Habitual Offender Sentencing. This is commonly known as “three strikes” in California and other states have it as well. This law provides that after a conviction, a new document can be filed by the state, urging that the sentence originally imposed be “enhanced”, which is another word for INCREASED, based on your client’s prior criminal history. If counsel does not learn exactly what the client’s criminal history is, and what the client would be exposed to on a plea, the client has an ineffectiveness claim. It’s the lawyer’s obligation to know the impact of the plea and to inform the client.
Often the state will agree to exclude Habitual Offender Sentencing from your deal. Ask for that. If you don’t get it then you have to learn the details of the sentencing provisions of 15:529.1.
There are also special enhancements for firearms: use, possession as a convicted felon, and many others. That’s all need to know stuff. YOU SHOULD NOT ADVISE A GUILTY PLEA UNLESS THE STATE HAS WAIVED HABITUAL OFFENDER SENTENCING, or YOU HAVE RESEARCHED AND KNOW THAT IT CANNOT APPLY TO THE CLIENT.
IMMIGRATION, SEX OFFENDER REGISTRATION, OTHER CONSEQUENCES
When you advise a client as counsel, that advice must include the consequences of the Guilty Plea, including whether there is going to a consequence for them as an illegal resident, whether their offense can be “enhanced” as a second and subsequent offense, whether government benefits are impacted and of course sex offender registration.
Be very clear about understanding the client is not charged with knowing the law. Properly advising the client on the law is your duty. A guilty plea is a conviction so your role as the lawyer is as important as in any other context. The Guilty Plea is like a settlement in Worker’s Comp or any other contested case: the client depends on you to explain all of the rights and consequences of that settlement.
People can become unemployable as a result of a Guilty Plea, including loss of ability to get security clearance with a TWIC card, eviction from subsidized housing, and other “collateral damage.”
LOUISIANA BAR DISCIPLINARY RULES
This letter is insufficient to fully inform you of your obligations in this case. You can research it or you can look further into the Bar Disciplinary Rules, including but not limited to:
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” La. D.R. 1.1
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to
which the client’s informed consent, as defined in Rule 1.0(e), is required
by these Rules;
(2) reasonably consult with the client about the means by which the client’s
objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s
conduct when the lawyer knows that the client expects assistance not
permitted by the Rules of Professional Conduct or other law.
(b) The lawyer shall give the client sufficient information to participate intelligently in decisions concerning the objectives of the
representation and the means by which they are to be pursued.
La. DR 1.4
- My office is in no condition to help you. Be sure you are up to whatever cases you take.
- I have not researched conflicts. Be sure you are not related by employment in a firm or otherwise could have a conflict between co-defendants.
- These clients must be given equal treatment to your other workload or practice. This includes going to your office and talking to you on the phone.
- Standards include requirements that you investigate the case, and some case law suggests that advising on a plea at first meeting may violate ethical and effectiveness standards.
This office in no way is vouching for this method of appointment nor soliciting you to take any particular case and I have not been consulted by anyone about your capacity or ability regarding representation. My office is not counsel for this client effective with Judge Michot’ s Order, and you will be solely responsible for the legal work in this case.
G Paul Marx
District Public Defender