OR R APPT COUNSEL Standard IV § 7G(g)

Qualification Standards for Appointed Counsel, Standard 3.1

Oregon Revised Statutes

Qualification Standards for Court-Appointed Counsel to Represent Indigent Persons At State Expense

Standard 3.1 Qualifications To Serve As Appointed Counsel for Indigent Persons By Case Type

Subject to the provisions of Standard 4.1, the appointing authority shall appoint only those attorneys who:

1. Are members of the Oregon State Bar or are attorneys of the highest court of record in any other state or country who will appear under ORS 9.241;  and

2. Either:

a. Meet the qualifications specified below for the applicable case type;  or

b. Possess significant experience and skill equivalent to or exceeding the qualifications specified below, and who demonstrate to the appointing authority's satisfaction that the attorney will provide competent and adequate representation;  and

3. Have adequate legal research access and adequate facilities to ensure reasonable and timely personal and telephonic contact between attorney and client and between the court and attorney.

a. Adequate facilities include sufficient support staff or answering service/machine for receiving messages and notifying clients of court dates.

b. Adequate legal research access includes the attorney's office is located convenient to a law library of sufficient size or the attorney has "on-line" or other electronic access to ensure the attorney has ready access to legal references and research material;  and

4. Have reviewed and are familiar with the Oregon State Bar's Indigent Defense Task Force Report, "Principles and Standards for Counsel in Criminal, Delinquency, Dependency and Civil Commitment Cases" (Approved by the Board of Governors September 25, 1996), Exhibit C to this policy statement.

These standards establish and specify qualifications for each of the following case types:

A. Misdemeanor cases and misdemeanor probation violation proceedings in trial courts.

B. Lesser felonies (all Class C felonies other than homicides and drug cases), felony probation violation proceedings, and contempt proceedings in trial courts.

C. Major felonies (all A and B felonies, all drug felonies, and all homicides other than murder and capital murder cases) in trial courts.

D. Murder cases in trial courts.

E. Capital murder cases other than in postconviction proceedings in trial courts.

F. Civil commitment proceedings in trial courts.

G. Juvenile proceedings in trial courts.

H. Appeals other than in murder and capital murder cases.

I. Appeals in murder and capital murder cases.

J. Postconviction proceedings in murder and capital murder cases.

K. Postconviction proceedings in other cases.

L. Habeas corpus proceedings.

A. Misdemeanor Cases and Misdemeanor Probation Violation Proceedings.  An attorney or certified law student is qualified for appointment to misdemeanor cases and misdemeanor probation violation proceedings if he or she:

1. Has reviewed and is familiar with the ABA Standards for Criminal Justice (2d ed.), Chapters 4, 5, 10 through 15, and 20 through 22;  the Code of Professional Responsibility;  the Criminal and Evidence Codes of Oregon, as set forth in ORS Chapters 40, 131-169, 471, and 475;  the Uniform Trial Court Rules;  and Oregon State Bar, Criminal Law (1986);  and

2. Satisfies one or more of the following:

a. Has been certified under the Oregon Supreme Court Rules on Law Student Appearances to represent clients on behalf of a public defender office, a district attorney office, or a private attorney office in criminal cases;  has undertaken such representation for at least six months;  and can present a letter from the student's immediate supervisor certifying the student's knowledge of applicable criminal procedure and sentencing alternatives;  or

b. Has observed five complete trials of criminal cases that were tried and submitted to a jury;  or

c. Has served as counsel or co-counsel in at least two criminal cases that have been tried and submitted to a jury;  or

d. Has served as co-counsel in at least five criminal cases.  Such service shall have included attendance at all court appearances and all client interviews in each case;  or

e. Has served as a judicial clerk for a court that regularly hears criminal cases;  or

3. In lieu of the above qualifications, possesses significant equivalent experience under Standard 3.1.2.b.

B. Minor Felony Cases;  Felony Probation Violation Proceedings;  Contempt Proceedings.  Lesser felony cases include all Class C felonies other than homicides and drug cases.

An attorney is qualified for appointment to lesser felony cases, felony probation violation proceedings, and contempt proceedings if he or she:

1. Meets the qualifications specified in Section A;  and

2. Has continued to meet the qualifications in Section A for at least nine months;  and

3. Has served as counsel or as co-counsel and has handled a significant portion of the trial in two criminal cases that have been submitted to a jury;  and

4. In at least one felony trial submitted to a jury, has associated on a pro bono or paid basis as co-counsel with an attorney who has previously tried felony cases and is otherwise qualified to try felony cases under these standards;  and

5. On request, can present an additional showing of expertise and competence in the area of criminal trial practice by submitting at least three letters of reference from other criminal trial lawyers or judges the attorney has appeared before on criminal cases.  The letters must explain why the attorney has special experience and competence to handle felony cases involving potential incarceration of up to five years;  or

6. In lieu of the above qualifications, possesses significant equivalent experience under Standard 3.1.2.b.

C. Major Felony Cases.  Major felony cases include all A and B felonies, all drug felonies, and all homicides other than murder and capital murder cases.

An attorney is qualified for appointment to major felony cases if he or she:

1. Meets the qualifications specified in Section B;  and

2. Has continued to meet the qualifications in Section B for nine months and has had nine months of lesser felony trial experience in a public defender or a district attorney office or in private practice;  and

3. On request, can present evidence of additional expertise and competence in the area of criminal trial practice by submitting at least five letters of reference from other criminal trial lawyers or judges that the attorney has appeared before on criminal cases.  The letters must explain why the attorney has special experience and competence to handle felony cases involving potential incarceration of 20 years;  or

4. In lieu of the above qualifications, possesses significant equivalent experience under Standard 3.1.2.b.

D. Murder Cases.

1. Lead Counsel.  An attorney is qualified for appointment as lead counsel in murder cases, not including capital murder, if he or she:

a. Meets the qualifications specified in Section C;  and

b. Has been trying major felony cases for the past three years;  and

c. Has demonstrated to persons with knowledge of his or her practice a high level of learning, scholarship, training, experience, and ability to provide competent and vigorous representation to defendants charged with a crime for which the most serious penalties can be imposed, including handling cases involving codefendants, a significant number of witnesses, and cases involving suppression issues, psychiatric issues and scientific evidence;  and

d. Has acted as lead counsel or co-counsel in a significant number of major felonies tried to a jury, which should include at least one homicide case that was tried to a jury and went to a final verdict;  and

e. On request, can demonstrate the above by:

1) A written statement by the attorney explaining why the attorney believes that he or she has the qualifications required to handle a murder case;  and

2) Certification from those with knowledge of the attorney's practice, indicating that they believe that the attorney should be allowed to defend murder cases and explaining why the attorney has the qualities required. Certification must include at least five letters from at least two of the following three groups:

a) Judges before whom the attorney has appeared;

b) Defense attorneys who are recognized and respected by the local bar as experienced criminal trial lawyers and who have knowledge of the attorney's practice;  and

c) District attorneys or deputies against whom or with whom the attorney has tried cases;  or

f. In lieu of the above qualifications, possesses significant equivalent experience under Standard 3.1.2.b.

2. Co-counsel.  Co-counsel in murder cases must meet the qualifications in subparagraphs 1.a, b, c, and e of this section or must possess significant equivalent experience under Standard 3.1.2.b.

E. Capital Murder Cases.

1. Lead Counsel.  An attorney is qualified for appointment as lead counsel in capital murder cases if he or she:

a. Meets the qualifications specified in Section C;  and

b. Has been trying major felony cases for the past five years;  and

c. Has demonstrated to persons with knowledge of his or her practice a high level of learning, scholarship, training, experience, and ability to provide competent and vigorous representation to defendants charged with a crime for which the death penalty can be imposed, including handling cases involving codefendants, a significant number of witnesses, and cases involving suppression issues, psychiatric issues and scientific evidence;  and

d. Has acted as lead counsel or co-counsel in a significant number of major felonies tried to a jury, which should include at least one homicide case that was tried to a jury and went to a final verdict.  Lead counsel in capital cases must have acted as counsel or co-counsel in at least one murder case that was tried to a jury and went to a final verdict;  and

e. For appointment as lead or co-counsel in a capital case, has completed, within one year of the appointment, a legal training or education program on capital cases;  and

f. On request, can demonstrate the above by:

1) A written statement by the attorney explaining why the attorney believes that he or she has the qualifications required to handle a capital murder case;  and

2) Certification from those with knowledge of the attorney's practice, indicating that they believe that the attorney should be allowed to defend capital murder cases and explaining why the attorney has the qualities required.  Certification must include at least five letters from at least two of the following three groups:

a) Judges before whom the attorney has appeared;

b) Defense attorneys who are recognized and respected by the local bar as experienced criminal trial lawyers and who have knowledge of the attorney's practice;  or

c) District attorneys or deputies against whom or with whom the attorney has tried cases;  and

g. Has demonstrated the necessary proficiency and commitment that exemplify the quality of representation appropriate to capital cases.

2. Co-counsel.  Co-counsel in capital murder cases must meet the qualifications in subparagraphs 1.a, b, c, e, f, and g of this section or must possess significant equivalent experience under Standard 3.1.2.b.

3. Alternate Procedures.  The appointing authority also may appoint as lead or co-counsel an attorney with extensive criminal trial experience or extensive civil litigation experience, if the attorney clearly demonstrates to the appointing authority that the attorney can and will provide competent representation to the capitally charged indigent defendant.  Attorneys appointed under this paragraph must meet one or more of the following qualifications:

a. Experience in the trial of death penalty cases that does not meet the levels detailed in paragraphs A or B above;

b. Specialized postgraduate training in the defense of persons accused of capital crimes;

c. The availability of ongoing consultation support from experienced death penalty counsel.

Attorneys appointed under this paragraph should be prescreened by a panel of experienced death penalty attorneys to ensure that they will provide competent representation.

4. Limited Case Load.  An attorney shall not handle more than two capital cases at the same time without prior authorization from the State Court Administrator.

OR R APPT COUNSEL Exhibit C

Qualification Standards for Appointed Counsel, Exhibit C

Oregon Revised Statutes

Qualification Standards for Court-Appointed Counsel to Represent Indigent Persons At State Expense

Exhibits

Exhibit C. Indigent Defense Task Force Report

Principles and Standards for Counsel In Criminal, Delinquency, Dependency and Civil Commitment Cases

Contents

Principles

General Principles for Counsel In Criminal, Delinquency, Dependency And Civil Commitment Cases

Performance Standards

Chapter 1

General Standards For Representation In All Criminal, Delinquency, Dependency And Civil Commitment Cases

Performance Standards

Chapter 2

Specific Standards For Representation In Criminal And Juvenile Delinquency Cases

Performance Standards

Chapter 3

Specific Standards For Representation In Juvenile Dependency Cases

Performance Standards

Chapter 4

Specific Standards For Representation In Civil Commitment Proceedings

PRINCIPLES.  General Principles for Counsel In Criminal, Delinquency,

Dependency And Civil Commitment Cases

Sixth Amendment to the United States Constitution

In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence (sic).

Article I, Section 11 of the Oregon Constitution

In all criminal prosecutions, the accused shall have the right ... to be heard by himself and counsel.

Fourteenth Amendment to the United States Constitution

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Principles

PRINCIPLE 1

The paramount obligation of counsel is to provide quality representation and diligent advocacy for the client at all stages of the representation.

PRINCIPLE 2

To provide quality representation and diligent advocacy, counsel must preserve, protect and promote the client's rights and interests.

PRINCIPLE 3

To ensure the preservation, protection and promotion of the client's rights and interests, counsel must:

1.  be proficient in the applicable substantive and procedural law;

2.  abide by the Code of Professional Responsibility and the rules of the court;

3.  acquire and maintain appropriate experience, skills and training;

4.  devote adequate time and resources to the case;

5.  engage in the preparation necessary for quality representation;

6.  endeavor to establish and maintain a relationship of trust and open communication with the client;

7.  keep the client informed and seek the lawful objectives of the client; and

8.  make accommodations where necessary due to a client's special circumstances, such as youth, mental or physical disability, or foreign language barrier.

PRINCIPLE 4

To promote the interests of clients and society at large, counsel must actively seek improvement in the administration of justice, including the provision of adequate resources.

PERFORMANCE STANDARDS

CHAPTER 1.  GENERAL STANDARDS FOR REPRESENTATION IN ALL CRIMINAL, DELINQUENCY,

DEPENDENCY AND CIVIL COMMITMENT CASES

STANDARD 1.1.  Prerequisites For Representation

Counsel shall only accept an appointment or retainer if counsel is able to provide quality representation and diligent advocacy for the client.

Implementation

1.  Counsel should be proficient in applicable substantive and procedural law and stay current with changes in constitutional, statutory, evidentiary law and local or statewide court rules.

2.  Counsel should have appropriate experience, skills and training.

a.  Counsel should obtain formal and informal training in the relevant areas of practice and should consult with others in the field, including non-attorneys.

b.  Less experienced counsel should observe and when possible serve as co-counsel to more experienced attorneys.  More experienced counsel should mentor less experienced attorneys.

3.  Counsel should have adequate time and resources.

a.  Counsel should not accept caseloads that by reason of excessive size and/or complexity interfere with the provision of quality representation.

b.  Counsel should have access to sufficient support services and physical resources to allow for quality representation.

4.  Counsel appointed by a court to represent a client at government expense shall meet and certify compliance with the "Qualification Standards for Court-Appointed Counsel to Represent Indigent Persons at State Expense", promulgated by the State Court Administrator.

STANDARD 1.2.  General Duties And Responsibilities Of Counsel To Clients; Avoiding Conflict Of Interests

Upon being retained or appointed by the court, counsel should contact the client as soon as practicable AND maintain regular contact thereafter.  Counsel should endeavor to establish a relationship of trust and open communication with the client and should diligently advocate the client's position within the bounds of the law and the Rules of Professional Responsibility.

Implementation

1.  As soon as practicable after being retained or appointed, counsel should contact the client and conduct an initial client interview.

2.  Counsel should ensure that barriers to communication with the client, such as differences in language or literacy, are overcome.  Counsel should make accommodations where necessary due to a client's special circumstances, such as youth, mental or physical disability, or foreign language barrier, including assuring that counsel has sufficient additional time and resources to make those accommodations.

3.  Counsel should maintain regular contact with the client and should keep the client informed of the progress of the case, including:

a.  the importance of maintaining contact with counsel and the need to notify counsel of any change of address;

b.  the names and contact information regarding counsel and staff assisting with the case; and

c.  any court dates and significant developments in the case.

4.  Counsel should not delegate tasks to others if to do so would compromise the effectiveness of the representation.  Counsel should not delegate non-ministerial and non-routine court appearances to other counsel without the consent of the client.

5.  Counsel should be alert to all potential and actual conflicts of interest.  If counsel identifies an actual conflict of interest, counsel should immediately request permission from the court to withdraw and substitution of qualified counsel.  If counsel identifies a potential or likely conflict of interest, counsel should fully disclose the conflict to all affected clients and, if appropriate, obtain informed consent to proceed on behalf of those clients.

6.  Counsel should preserve client confidences and secrets and should not knowingly disclose confidential information obtained during the course of representation, unless authorized to do so by the client or the court or as otherwise permitted by law or the Rules of Professional Responsibility.

STANDARD 1.3.  Role Of Counsel

Counsel should seek the lawful objectives of the client and should not substitute counsel's judgment for that of the client in those case decisions that are the responsibility of the client.

Implementation

1.  Counsel is ordinarily bound by the client's definition of his or her interests and should not substitute counsel's judgment for that of the client regarding the objectives of the representation.

2.  Counsel should advise the client regarding the probable success and consequences of adopting any posture in the proceedings and give the client the information necessary to make an informed decision.  Counsel should consult with the client regarding the assertion or waiver of any right or position of the client.

3.  Counsel should consult with the client as to the strategy and means by which the client's objectives are to be pursued and exercise his or her professional judgment concerning technical and legal tactical issues involved in the representation.

STANDARD 1.4.  Initial Client Interview

Counsel should conduct a client interview as soon as practicable after being retained or appointed by the court, in order to obtain information necessary to provide quality representation at the early stages of the case and to provide the client with information concerning counsel's representation and the case proceedings.

Implementation

1.  To the extent possible, counsel should prepare for an initial interview with the client by reviewing petitions and/or charging documents, police and other investigative agency reports, and the reports of pretrial detention agencies, where applicable.

2.  Counsel should conduct the initial interview with the client as soon as practicable and sufficiently before any court proceeding so as to be prepared for that proceeding.  In instances where the client is detained or in custody, counsel should make every effort to conduct an initial interview within 48 hours of acceptance of a retainer or court appointment.

3.  At the initial interview, counsel should obtain the following types of information from the client:

a.  the facts surrounding the allegations against or affecting the client;

b.  any possible witnesses who should be located;

c.  any evidence of improper conduct by police or other investigative agencies, juvenile or mental health departments or the prosecution which may affect the client's rights;

d.  any evidence that should be preserved; and

e.  evidence of the client's competence to stand trial and/or mental state at the time of the offense.

4.  Counsel should convey the following types of information to the client:

a.  the nature of the allegations, what the state must prove, and the likely and maximum potential consequences;

b.  the role of counsel and the defense function;

c.  an explanation of the attorney-client privilege and instructions not to talk to anyone about the facts of the case without first consulting with the attorney;

d.  a general procedural overview of the likely progression of the case;

e.  the procedures that will be followed in setting the conditions of pretrial release, if applicable to the type of proceeding and the particular client;

f.  an explanation of the type of information that will likely be requested in any interview that may be conducted by pretrial release, juvenile court counselors, children's services personnel, or civil commitment investigators or doctors and what information the client should and should not provide;

g.  how and when counsel can be reached;

h.  when counsel will see the client next;

i.  realistic answers, where possible, to the client's most urgent questions; and

j.  what arrangements will be made or attempted for the satisfaction of the client's most pressing needs; e.g., medical or mental health attention, contact with family or employers.

STANDARD 1.5.  Theory Of The Case

During investigation and trial preparation, counsel should develop and continually reassess a theory of the case.

Implementation

1.  Counsel should develop an overall theory of the case that encompasses the best interests of the client and the realities of the client's situation in order to assist counsel in evaluating choices throughout the course of the representation.

2.  Counsel should allow the case theory to focus the investigation and trial preparation of the case, seeking out and developing the facts and evidence that the theory makes material, but counsel should not become a "prisoner" of his or her theory.

PERFORMANCE STANDARDS

CHAPTER 2.  SPECIFIC STANDARDS FOR REPRESENTATION IN CRIMINAL AND JUVENILE

DELINQUENCY CASES

This chapter pertains to representation in both adult criminal and juvenile delinquency cases.  The two types of proceedings are grouped together in one chapter because they have many similarities.  Any differences in representation are indicated where appropriate.  This grouping recognizes that counsel must employ the same general standards of practice in providing representation to youth in juvenile delinquency proceedings and to adult defendants in criminal cases, with special accommodation for the needs of juvenile clients.  Efforts have been made to use generic terms that apply to both types of proceedings to the extent possible.  For example, the term "disposition" refers to sentences in adult criminal cases and to juvenile dispositions, and the term "admission" includes guilty and nolo contendere pleas in criminal proceedings and admissions to allegation(s) in juvenile delinquency petitions.  "Admission agreements" include plea agreements and agreements to admit jurisdiction in delinquency cases.

STANDARD 2.1.  Prerequisites For Representation

Counsel should be proficient in applicable substantive and procedural law and should have appropriate experience, skill and training for the type of representation required.

Implementation

1.  In addition to meeting the requirements for experience and training in Standard 1.1, supra, counsel should have at least fifteen (15) hours of mandatory continuing legal education training each year, at least ten (10) of which should relate to the practice of criminal defense or juvenile law.

2.  Counsel for juveniles should develop a basic knowledge of child development and adequate communication skills to communicate effectively with child clients.

3.  Counsel should visit at least two correctional, juvenile or treatment facilities.

STANDARD 2.2.  General Duties And Responsibilities Of Counsel; Avoiding Conflicts Of Interest

In adult criminal and juvenile delinquency matters, counsel or counsel associated in practice should avoid representing two or more clients who have been jointly charged or whose cases have been consolidated.

Implementation

1.  Counsel should follow Standard 1.2 Implementation 5 with regard to potential and actual conflicts of interest.  In both adult criminal and juvenile delinquency matters, counsel and counsel associated in practice should avoid representing two or more clients who have been jointly charged or whose cases have been consolidated for trial or hearing.

STANDARD 2.3.  Role Of Counsel

Counsel should seek the lawful objectives of the client and should not substitute counsel's judgment for that of the client in those case decisions that are the responsibility of the client.

Implementation

1.  Counsel should follow Standard 1.3, Implementations 1 and 2.

2.  Decisions as to whether to enter an admission, accept diversion or other pretrial early disposition, testify, or waive any right with respect to jurisdiction, trial, or waiver, are ultimately for the client to determine.

3.  In juvenile delinquency and status offense proceedings as in adult criminal matters, counsel is ordinarily bound by the client's definition of his or her interests and should not substitute counsel's judgment for that of the client regarding the objectives of the representation.  See Standard 3.3, infra.

STANDARD 2.4.  Obligations Of Counsel Regarding Pretrial Release

When a client is in custody, counsel should explore with the client the pretrial release of the client under the conditions most favorable to the client and attempt to secure that release.

Implementation

1.  Counsel should obtain information regarding the client's ties to family, the community, immigration status, school or employment records, physical and mental health, participation in community programs, past criminal and delinquency record, the ability of the client, relatives or third parties to meet any financial conditions of release and the names of individuals or other sources that counsel can contact to verify the information provided by the client.

2.  Counsel should present to the appropriate judicial officer information about the client's circumstances and the legal criteria supporting release. Where appropriate, counsel should make a proposal concerning conditions of release that are least restrictive with regard to the client.  Counsel should arrange for contact with or the appearance of parents, spouse, relatives of other per sons who may take custody of the client or provide third party surety.

3.  Counsel for juveniles should seek to have a minister, teacher, relative or other mentor come to the detention hearing to offer to provide extra guidance and positive activities for the youth during release.  Counsel for juveniles should be aware of the alternatives to secure detention, including group homes, residential treatment, drug and alcohol treatment facilities, house arrest or other non-secure community based alternatives.

4.  If a juvenile client is released, counsel should assure that the client's needs for safety and right to receive treatment are met by agencies responsible for the client's care.

5.  Where the client is not able to obtain release under the conditions set by the court, counsel should consider pursuing modification of the conditions of release under available procedures.

6.  If the court sets conditions of release, counsel should explain to the client and any third party the conditions of release and potential consequences of violating such conditions.  If the court sets as a condition of release that security be posted, counsel should explain to the client and any third party the available options, procedures, and risks in posting security.

7.  Where the client is unable to obtain pretrial release, counsel should inform the court and the jail or juvenile detention facility personnel about any medical, psychiatric, or security needs of the client.  Juvenile clients in detention or shelter care should be advised of the right to have the placement decision reviewed every ten days, and counsel should seek review if requested by the client.

STANDARD 2.5.  Initial Court Appearances

Counsel should preserve all of the client's constitutional and statutory rights at initial court appearances.

Implementation

Counsel should:

1.  Promptly advise the client of and take action to preserve all constitutional and statutory rights of the client, including the right to remain silent, to file motions challenging the charging instrument, and to enter a plea of not guilty or deny the allegations contained in a delinquency petition and to request a jury trial, where failure to do so may result in the client being precluded from later obtaining such rights.