Adherence to Ethical Standards

Recommendation 14—Defense attorneys and defender programs should refuse to compromise their ethical duties in the face of political and systemic pressures that undermine the competence of their representation provided to defendants and juveniles unable to afford counsel. Defense attorneys and defender programs should, therefore, refuse to continue representation or accept new cases for representation when faced with excessive workloads that will lead to a breach of their professional obligations.

Commentary—This recommendation is based squarely on the rules of professional conduct that govern lawyers throughout the United States in representing their clients. It is also a recommendation that has long been endorsed in standards of the ABA,[84] in the ABA’s 2004 national report on indigent defense,[85] and, finally, in a 2006 ethics opinion issued by the ABA’s Standing Committee on Ethics and Professional Responsibility.[86] In this opinion, the most prestigious ethics committee in the country summed up the duty of defense counsel:

If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients. If the clients are being assigned through a court appointment system, the lawyers should request that the court not make any new appointments. Once the lawyer is representing a client, the lawyer must move to withdraw from representation if she cannot provide competent and diligent representation…. Lawyer supervisors, including heads of defenders’ offices and those within such offices having intermediate managerial responsibilities, must make reasonable efforts to ensure that the other lawyers in the office conform to the Rules of Professional Conduct.[87]

While the discussion that follows is based on the ABA Model Rules of Professional Conduct (Model Rules), the key provisions cited here have been adopted almost verbatim by states virtually everywhere. Lawyers who fail to comply with the rules of the legal profession are subject to disciplinary sanction, which can include a reprimand, suspension from the practice of law, and even disbarment.[88]

Rules 1.1 and 1.3 of the Model Rules require lawyers to furnish competent and diligent representation, which means that they possess “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation”[89] and that they are able to “act with reasonable diligence and promptness in representing a client.”[90] If a lawyer cannot provide competent and diligent representation, whether attributable to excessive workload, inadequate supervision, training, or other reasons, the lawyer cannot discharge his or her duty as required by the rules of the legal profession. In addition, if the lawyer’s difficulty in complying with Model Rules 1.1 and 1.3 is attributable to an excessive number of cases, the lawyer is faced with a conflict of interest, pursuant to Model Rule 1.7, since “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client….”[91]

But what is the lawyer to do if confronted with continued defense representation that will violate the rules of professional conduct? Pursuant to Model Rule 1.16, the lawyer has a mandatory duty to “withdraw from the representation …”[92] and must resist appointments to additional cases. When the lawyer’s cases are obtained by court appointment, applicable court rules typically require that judicial approval be obtained in order to withdraw from representation and to avoid additional case assignments.[93] In moving to withdraw and in resisting additional appointments, the lawyer should make a detailed statement on the record of the reasons for the request, thus preserving the issue for appeal. Also, in the event a client is currently being represented, the lawyer should inform the client that competent, conflict-free representation cannot be provided.[94] Similarly, if a plea offer is extended by the prosecution and the lawyer has not had adequate time to investigate the client’s case or otherwise formulate a recommendation about the plea offer, the client should be advised that counsel is unable to provide competent advice about whether the offer should be accepted. Such direct communication with the client is required by Model Rules, which state that a “lawyer shall keep the client reasonably informed about the status of the matter.”[95] If a defendant nevertheless decides to enter a plea of guilty, counsel should state on the record that he or she has been unable to competently advise the defendant with regard to the plea and that defendant has not had effective assistance of counsel in agreeing to the plea. Similarly, if forced to trial in circumstances when counsel has not had adequate time to prepare, counsel should state on the record that he or she is unable to furnish competent representation or the effective assistance of counsel at the ensuing trial.

Supervisors and heads of defender programs must also be concerned when their lawyers are struggling with excessive caseloads, because these persons have a duty to make sure that lawyers for whom they have either supervisory or overall responsibility do not violate rules of the profession. If supervisors and heads of defender programs fail to make reasonable efforts to prevent lawyers under their control from violating ethical rules, they, too, will have violated the rules of the legal profession and are subject to disciplinary sanction.[96] (The duty of judges, prosecutors, and defense lawyers to report ethical violations in conjunction with excessive workloads of defense attorneys is discussed in the Commentary below to Recommendation 15).

Recommendation 15—Judges, prosecutors, and defense lawyers should abide by their professional obligation to report to disciplinary agencies knowledge of serious ethical violations that impact indigent defense representation when the information they possess is not confidential. Appropriate remedial action should be taken by persons with responsibility over those who commit such ethical violations.

Commentary—Pursuant to the ABA’s Model Rules, members of the bar have a duty to report to “appropriate professional authority” another lawyer when they know that the “lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer….”[97] This duty also extends to reporting judges when “a lawyer knows that a judge has committed a violation of applicable rules of judicial conduct” that raise a similar kind of “substantial question as to the judge’s fitness for office….”[98] Although a lawyer is not authorized to disclose information protected pursuant to principles of confidentiality (i.e., “information relating to the representation of the client”), such information may be disclosed with client consent or if disclosure is impliedly authorized.[99] In addition, the ABA’s Code of Judicial Conduct requires judges to report to “the appropriate authority” if they have “knowledge that a lawyer has committed a violation of … the Rules of Professional Conduct that raises a substantial question of the lawyer’s honesty, trustworthiness, or fitness as a lawyer….”[100] Consistent with the foregoing provisions, this recommendation relates specifically to reporting non-confidential “serious ethical violations that impact indigent defense representation….”

This report discusses instances in which both lawyers and judges have violated their professional responsibilities in relation to the administration of justice. We have noted, for example, that judges do not always properly advise the accused of their right to counsel and that prosecutors sometimes improperly encourage waivers of the right to counsel.[101] Also, defense lawyers sometimes proceed to represent clients when they have inordinately high caseloads that prevent their providing competent representation, but the lawyers do not seek to withdraw or otherwise take steps to protect the rights of their clients.[102] In addition, when defenders represent excessive numbers of clients with the knowledge of supervisors and directors of defender programs, these supervisors and agency heads commit professional misconduct.[103]

When the conduct of lawyers and judges raises a “substantial question” about their “fitness” for the practice of law, the Committee recommends that such instances of professional misconduct be reported. It has been forcefully argued, for example, that if a public defender is ordered by a supervisor or agency head to undertake representation in an excessive number of cases, thereby preventing the lawyer from competently representing his or her clients, the defender should report these persons to the appropriate disciplinary authority.[104] Similarly, if a judge forces a defender to provide representation in circumstances where the defender cannot provide competent service, the defender’s duty is to report the judge to the appropriate authority.[105]

While the Committee appreciates that such actions by lawyers require substantial fortitude, it also believes that the profession’s rules about reporting misconduct are clear and that compliance with the rules could lead to significant positive reform. The Committee’s call for action, moreover, is not unprecedented. In 2005, for example, the ABA House of Delegates passed a resolution calling on judges, in accord with “canons of professional and judicial ethics … [to] take appropriate action with regard to defense lawyers who violate ethical duties to their clients … [and] take appropriate action with regard to prosecutors who seek to obtain waivers of counsel and guilty pleas from unrepresented accused persons, or who otherwise give legal advice to such persons, other than the advice to secure counsel.”[106]

Open File Discovery

Recommendation 16—Prosecutors should adopt open file discovery policies in order to promote the fair administration of criminal and juvenile justice.

Commentary—As discussed in Chapter 2, adherence to broad open file discovery policies by prosecutors promotes just results while reducing the workload burden on indigent defense providers.[107] Such policies also promote the early resolution of cases while ameliorating a lack of investigative resources available to the defense. A similar recommendation was adopted by the ABA many years ago in its criminal justice standards, which urge that documentary evidence, tangible objects, and witness lists, among numerous other matters, be made available to the defense “within a specified and reasonable time” prior to trial.[108] In the absence of open file discovery, criminal and juvenile proceedings remain a form of trial by ambush, in which far less information is available to the defense prior to disposition than is typically available in ordinary civil proceedings.[109]

Education, Advocacy and Media Attention

Recommendation 17—State and local bar associations should provide education about the professional obligations and standards governing the conduct of defense attorneys, prosecutors, and judges in order to promote compliance with applicable rules. State and local bar associations, defense attorneys, prosecutors, judges, and their professional associations should support and advocate for reform of indigent defense services in compliance with the recommendations contained in this report.

Commentary—Among national bar associations, the ABA for many years has been at the forefront of educating the legal profession, the public, and policymakers about the criminal and juvenile justice systems; developing standards,[110] principles,[111] and guidelines for its improvement;[112] advocating on behalf of indigent defense; and providing technical assistance to indigent defense programs across the country.[113] In recent years, the National Association of Criminal Defense Lawyers (NACDL) also has been an important voice for indigent defense reform.[114] And, while not a bar association, the National Legal Aid and Defender Association (NLADA) has constantly developed informational materials, promulgated guidelines and standards, offered technical assistance, and lobbied for improvements.[115] Despite these vigorous national efforts, the adversary system of justice and especially the function of defense lawyers are still not always well understood or readily accepted by the public and legislators. This lack of understanding and acceptance contributes to inadequate funding of defense services, especially in comparison to the prosecution function.[116] In order to inform the public and legislators about the adversary system, including the role of defense counsel and the importance of sufficient funding, state and local bar associations need to add their voice to those of national bar associations and other organizations.

In its most recent report on indigent defense, the ABA Standing Committee on Legal Aid and Indigent Defendants urged greater involvement of state and local bar associations, as well as others, in indigent defense reform.[117] While a number of state and local bar associations have demonstrated their commitment to improving indigent defense, the Committee believes there is still much more to be done. Bar associations, for example, can evaluate, monitor, and assess their respective systems of criminal and juvenile justice, issue reports, and thereby educate lawyers and the public about their jurisdiction’s justice systems. If, for example, accused persons are being represented by defenders who are routinely overwhelmed with cases, this should be a matter of enormous concern to state and local bar associations. If persons are not being offered the right to counsel in compliance with constitutional requirements, state and local bar associations should speak out on behalf of those who lack legal representation. In order to do so, however, state and local bar associations need to make indigent defense a priority, devote resources to the activity, and at the very least, establish a permanent committee with responsibility for oversight of the adversary system and indigent defense.

Although it is essential that bar associations and those who provide defense services participate in efforts to achieve reform, they also may be regarded with suspicion by some persons since they are virtually certain to emphasize, among other matters, financial support for fellow lawyers. On the other hand, because judges and prosecutors have very different roles from defense counsel in the adversary system, their advocacy on behalf of indigent defense services is apt to be especially persuasive.

Recommendation 18—Criminal justice professionals, state and local bar associations, and other organizations should encourage and facilitate sustained media attention on the injustices and societal costs entailed by inadequate systems of indigent defense, as well as those systems that function effectively.

Commentary—Since media attention about the shortcomings of indigent defense can play a vital role in educating the public and promoting public support for reform, it should be encouraged and facilitated. In recent years, many compelling news articles have highlighted deficiencies in the justice system, such as those dealing with defendants wrongfully convicted, excessive caseloads of public defenders, and the routine failure of jurisdictions to implement effectively the right to counsel. As noted earlier in this report, in addition to educating the public, the media can help to pave the way for improvements.[118] Although public opinion polling suggests that the public generally supports the right to counsel,[119] history demonstrates that this is not normally enough to persuade elected officials to act. But when favorable public opinion is combined with news articles that pull back the curtain on a host of problems in the delivery of defense services, it is considerably easier for legislators to support reform measures because the public is more likely to understand the reasons for action.

Litigation

Recommendation 19—When indigent defense systems require defense attorneys to represent more clients than they can competently represent or otherwise fail to assure legal representation in compliance with the Sixth Amendment, litigation to remedy such deficiencies should be instituted.

Commentary—Chapter 3 of this report contains a detailed analysis of the various litigation approaches to improving indigent defense that have been pursued. While there have been notable successes[120] that have brought about reforms, some lawsuits have failed completely[121] or have otherwise been unsuccessful in achieving systemic change.[122] Litigation, moreover, is time consuming, expensive (especially if pro bono counsel is unavailable), and the results are uncertain. Yet, when other options have failed to achieve necessary improvements, there may be no alternative except to institute a lawsuit since the rights of accused persons are not being protected and/or defense lawyers are unable to furnish competent representation.

In Recommendation 14, the Committee urges that “[d]efense attorneys and defender programs should … refuse to continue representation or to accept new cases for representation when faced with excessive workloads that will lead to a breach of their professional obligations.” In order to implement this admonition, defenders have sometimes filed motions to withdraw from cases and/or to stop the assignment of additional cases.[123] Moreover, as noted earlier, litigation has on occasion prompted reforms, which would not have occurred except for the pressure of a lawsuit that challenged the jurisdiction’s indigent defense system.[124] When the goal is broad systemic reform, Recommendation 20 addresses the timing of such litigation and the persons for whom lawsuits should be filed.

Recommendation 20—When seeking to achieve remedies that will favorably impact current and future indigent defendants, litigation should be instituted pretrial on behalf of all or a large class of indigent defendants.

Commentary—This recommendation is based upon lessons learned from the analysis of indigent defense litigation set forth in Chapter 3. If the goal is broad systemic reform, it is important that litigation “be instituted pretrial” and that it be “on behalf of all or a large class of indigent defendants.” As noted earlier, a lawsuit that is brought post-conviction requires that prejudice be demonstrated, which is invariably a significant hurdle to overcome.[125] Litigation consistent with this recommendation takes considerable time to prepare and, to be successful, should be supported with ample empirical and anecdotal evidence.[126] Moreover, unless the action is on behalf of a class of indigent defendants, a court’s relief is unlikely to reach many defendants.[127] Similarly, litigation that challenges the extent of attorney compensation, while it may be entirely justified, is less likely to impact other significant areas of indigent defense reform, even if it succeeds.[128]

Recommendation 21—Whenever possible, litigation should be brought by disinterested third parties, such as private law firms or public interest legal organizations willing to serve as pro bono counsel, who are experienced in litigating major, complex lawsuits and accustomed to gathering and presenting detailed factual information. Bar associations and other organizations should encourage law firms and public interest legal organizations to undertake indigent defense litigation and should recognize in appropriate ways the contributions of private counsel in seeking to improve the delivery of indigent defense services.

Commentary—Litigation dealing with issues in public defense requires expertise in civil litigation, as well as resources that public defense programs typically lack. Fortunately, some public interest organizations and private law firms have been willing to litigate a variety of indigent defense issues, such as challenges to defense delivery systems, the adequacy of compensation paid to assigned counsel, and the size of public defender caseloads.[129] Moreover, even if defender programs had the resources and expertise to pursue these kinds of lawsuits, they invariably lack sufficient time to prepare and conduct them due to their indigent defense commitments, not the least of which are their caseloads, which often is one of the main reasons that litigation is undertaken.

The Committee commends the commitment of public interest organizations and law firms to engage in pro bono indigent defense lawsuits, believing that their service is in the highest traditions of the legal profession.[130] While public recognition is undoubtedly not the motivation for private lawyers and their law firms to seek public defense improvements through litigation, it is nonetheless appropriate that their contributions be recognized by bar associations and other organizations, which may in turn, encourage others to become involved in the struggle for reform.

Recommendation 22—Defense lawyers who provide representation in appellate and post-conviction cases and organizations that advocate as amicus curiae should urge the United States Supreme Court and state Supreme Courts to adopt a test for ineffective assistance of counsel that is substantially consistent with the ethical obligation of defense counsel to render competent and diligent representation.

Commentary—In Chapter 1 of this report, we noted that the accused in our adversary system of justice is entitled under the Sixth Amendment to the effective assistance of counsel. And we also observed that, after a person has been convicted, the test for determining whether the accused was provided effective assistance is embodied in the Supreme Court’s decision in Strickland v. Washington,[131] decided in 1984. Pursuant to Strickland, the question is whether counsel’s representation was “within the wide range of professional assistance”[132] to be expected of a lawyer; and, if it was not, whether counsel’s conduct was prejudicial to the defendant, i.e., did it lead to a result that was different than would otherwise have occurred?[133] Finally, we pointed out that, while Strickland is the standard for determining ineffective assistance under the Sixth Amendment, it has been widely accepted by state supreme courts in determining ineffective assistance of counsel under right-to-counsel provisions in state constitutions.[134]

Further, as we noted earlier, the Strickland two-pronged test for determining ineffective assistance of counsel has been harshly criticized, proven to be difficult to apply, and has led to appellate courts affirming convictions that should be unacceptable in a society that genuinely values due process of law. In addition, the Strickland standard has made it possible during more than three decades for states and local jurisdictions to underfund indigent defense services, as this report and many others have amply demonstrated. The Committee, therefore, calls for the Strickland standard to be replaced by a straightforward test: has the accused received “competent” and “diligent” representation, as required by the rules of professional conduct adopted by the legal profession?[135] When defense counsel has failed to meet this requirement, thereby justifying discipline under professional conduct rules, surely defendants have not received the effective assistance of counsel under the Sixth Amendment.

A requirement that defense counsel’s conduct conform to the disciplinary rules of the profession is seemingly no different than what the Supreme Court called for in Strickland. The Court in Strickland asked whether counsel’s performance was “within the range of professional assistance” expected of attorneys and whether “attorney performance” … was “reasonable … under prevailing professional norms.”[136] At the same time, the Court cited with approval one of its prior decisions in which it held that a guilty plea could not “be attacked as based on inadequate legal advice unless counsel was not ‘a reasonably competent attorney’ and the advice was not ‘within the range of competence demanded of attorneys in criminal cases.’”[137] The Court also spoke of the need for counsel “to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.”[138] “Competence” and “skill and knowledge” is the language of the rules of professional conduct.[139] However, we do propose that the prejudice prong of the Strickland standard be eliminated. We agree with Justice Marshall’s dissent in Strickland, who argued that you cannot determine prejudice to the defendant because “the evidence of injury to the defendant may be missing from the record because of the incompetence of defense counsel.”[140]

While the Committee appreciates that courts may be reluctant to alter the Strickland standard, especially since it has endured for a number of years, it is nevertheless convinced that the standard should be changed. For this reason, we call upon defense lawyers and organizations that advocate as amicus curiae to seek a new test for determining ineffective assistance of counsel. Moreover, if the Strickland standard were replaced with a less stringent test, there would be significant positive impact, whether the decision was rendered by the U.S. Supreme Court or by a state supreme court interpreting its state constitution. If, for example, the new test adopted by a state supreme court was consistent with this Recommendation, it would become readily apparent to the state’s legislature and to others in authority that, once and for all, indigent defense must receive the essential resources in order to implement a defense system consistent with the promise of Gideon and the Supreme Court’s other right-to-counsel decisions.

[84] ABA Providing Defense Services, supra note 58, Chapter 1, at 5-5.3.

[85] ABA Gideon’s Broken Promise, supra note 108, Chapter 2, at 43 (Recommendation 4).

[86]See ABA Formal Op. 06-441, supra note 86, Chapter 1.

[87]Id. at 1.

[88]See, e.g., Martin v. State Bar, 20 Cal. 3d 717, 144 Cal. Rptr. 214 (1978) (suspension from practice of law justified because of failure to perform legal services for clients and not excused by attorney having accepted too many retained cases); Disciplinary Bd. v. Amundson, 297 N.W.2d (N.D. 1980) (public reprimand justified for failure to communicate sufficiently with beneficiaries of estate and not excused by attorney’s heavy workload); and Matter of Whitlock, 441 A.2d 989 (D.C. 1982) (suspension from practice justified for failure to file briefs in two criminal appeals and attorney’s conduct not excused by reason of caseload and other factors). Notwithstanding these few decisions, defense attorneys who represent the indigent are rarely disciplined even when their caseloads are excessive, and they fail to provide competent representation. See discussion supra note 91, Chapter 1, and accompanying text.

[89] ABA Model Rules, supra note 67, Chapter 1, at R. 1.1.

[90]Id. at R. 1.3 (2008).

[91]Id. at R. 1.7(b).

[92]Id. at R. 1.16(a).

[93]Id. at R. 1.16(c). As stated in comment 2 to Model Rule 1.16: “When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority.”

[94] ABA Formal Op. 06-441, supra note 86, Chapter 1, at 3, n.8.

[95] ABA Model Rules, at R. 1.4.

[96]Id. at R. 5.1(c).

[97]Id. at R. 8.3(a).

[98]Id. at R. 8.3(b).

[99]Id. at R. 1.6, cmt.5, R. 8.3(c).

[100]ABA Model Code of Judicial Conduct 2.15 (B) (2007). See also Section 2.15 (D), which imposes a duty on judges to “take appropriate action” when “information” is received that suggests “a substantial likelihood” that a lawyer has violated a rule of professional conduct.

[101]See supra notes 207–35 and accompanying text, Chapter 2. See also supra notes 7–19 and accompanying text, which contains Recommendation 1 and addresses such practices.

[102]See supra notes 96–108 and accompanying text, Chapter 2.

[103] ABA Model Rules, supra note 67, Chapter 1, at R. 5.1.

[104]See Monroe Freedman, An Ethical Manifesto for Public Defenders, 39 Val. U. L. Rev. 911, 921 (2005).

[105] “A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as the judge’s fitness for office shall inform the appropriate authorities.” ABA Model Rules, at 8.3(b). Judges have a duty to “comply with the law” and to accord all persons “the right to be heard according to law.” See ABA Model Code of Judicial Conduct 1.1, 2.6 (a) (2007).

[106] ABA House of Delegates, Resolution 107 (adopted August 9, 2005) § 5(b), (c), available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/res107.pdf. However, underreporting of lawyer misconduct by judges is a problem, as noted by the California Commission on the Fair Administration of Justice. Under California law, judges are required to report to the State Bar whenever a judgment in a judicial proceeding is reversed or modified due to “misconduct, incompetent representation, or willful misrepresentation of an attorney.” Based upon its research over a 10-year period, the Commission concluded in 2007 that “reliance on the State Bar as the primary disciplinary authority is hampered by underreporting.” See http://www.ccfaj.org/documents/
reports/prosecutorial/official/OFFICIAL%20REPORT%20ON%20REPORTING%20MISCONDUCT.pdf.

[107]See supra notes 168–77 and accompanying text, Chapter 2.

[108]ABA Standards for Criminal Justice: Discovery and Trial by Jury, 11-2.1 (3d ed., 1996).

[109] There is an “expansive—and intrusive—approach to pre-trial discovery followed in most American civil cases … discovery is much more limited in criminal cases than it is under civil rules.” Joseph Glannon, Civil Procedure: Examples and Explanations, 363 (Aspen Publishers, 5th ed. 2006).

[110]See, e.g., ABA Providing Defense Services, supra note 58, Chapter 1.

[111]See, e.g., ABA Ten Principles, supra note 67, Chapter 1.

[112]See, e.g., ABA Death Penalty Guidelines, supra note 39.

[113] For more than 25 years, the ABA Standing Committee on Legal Aid and Indigent Defendants (SCLAID) contracted with The Spangenberg Group to provide technical assistance to defense programs across the United States. Studies and other reports prepared by The Spangenberg Group are on SCLAID’s website. See http://www.indigentdefense.org.

[114]See National Association of Criminal Defense Lawyers website dealing with indigent defense matters, available at http://www.nacdl.org/public.nsf/DefenseUpdates/Index?OpenDocument.

[115]See NLADA website dealing with indigent defense matters, available at http://www.nlada.org/Defender/Defender_NIDC/Defender_NIDC_Home.

[116]See supra notes 70–95 and accompanying text, Chapter 2.

[117] “State and local bar associations should be actively involved in evaluating and monitoring criminal and juvenile delinquency proceedings to ensure that defense counsel is provided in all cases in which the right to counsel attaches and that independent and quality representation is furnished. Bar associations should be steadfast in advocating on behalf of such defense services.” ABA Gideon’s Broken Promise, supra note 108, Chapter 2, at 44 (Recommendation 6). “In addition to state and local bar associations, many other organizations and individuals should become involved in efforts to reform indigent defense systems.” Id. at 45 (Recommendation 7).

[118]See supra notes 29–31 and accompanying text, Chapter 4.

[119]See Public Opinion Research Finds Fairness Key to Support for Indigent Defense, Indigent Defense, Vol. 4, No. 2 (October/November 2000), available at http://www.nlada.org/Publications/Indigent_Defense/OctNovArticle5.

[120]See, e.g., supra notes 42–58 and accompanying text, Chapter 3.

[121]See, e.g., supra notes 64–66, 109–112 and accompanying text, Chapter 3.

[122]See, e.g., supra notes 76–79 and accompanying text, Chapter 3.

[123]See, e.g., supra notes 81–101 and accompanying text, Chapter 3.

[124]See, e.g., supra note 6 and accompanying text, Chapter 3; and supra note 22 and accompanying text, Chapter 4.

[125]See supra notes 176–77 and accompanying text, Chapter 3.

[126]See supra notes 181–86 and accompanying text, Chapter 3.

[127]See supra notes 173–75 and accompanying text, Chapter 3.

[128]See supra note 174 and accompanying text, Chapter 3.

[129]See, e.g., supra note 100, Chapter 3, which mentions private law firms that have made significant contributions in litigating indigent defense issues.

[130] The ABA Model Rules recognize that the pro bono responsibility of lawyers may be discharged through “participation in activities for improving the law [and] the legal system….” ABA Model Rules, supra note 67, at R. 6.1(b) (3).

[131]Strickland v. Washington, 466 U.S. 668 (1984).

[132]Strickland, 466 U.S. at 687.

[133]See supra notes 101–11 and accompanying text, Chapter 1.

[134]See supra notes 126–28 and accompanying text, Chapter 1.

[135] ABA Model Rules, supra note 67, Chapter 1, at R. 1.1, 1.3. The Constitution Project’s report on death penalty representation contains a recommendation concerning use of the Strickland standard at capital sentencing proceedings. “Once a defendant has demonstrated that his or her counsel fell below the minimum standard of professional competence in death penalty litigation, the burden should shift to the state to demonstrate that the outcome of the sentencing hearing was not affected by the attorney’s incompetence.” Mandatory Justice: The Death Penalty Revisited, The Constitution Project, Rec. 3, at 7 (2005), available at http://www.constitutionproject.org/pdf/MandatoryJusticeRevisited.pdf.

[136]Strickland, 466 U.S. at 688.

[137]Strickland, 466 U.S. at 687 (emphasis added).

[138]Id. (emphasis added).

[139] ABA Model Rules, supra note 67, Chapter 1, at R. 1.1.

[140]Strickland, 466 U.S. at 710 (Marshall, J., dissenting).