The clients facing this problem are the least able to defend themselves, the poorest and least educated members of the community. The system into which both parties have been thrust is under heavy pressure to move cases quickly through the process. These combined pressures and client deficits call for extremely close scrutiny by the judiciary to make sure that the defendant's rights to a fair trial by a jury of his peers assisted by an aggressive, competent and effective lawyer are protected. I offer the following recommendations to help make sure the defendant's rights are protected.

1. SCR 20:1.7 (b) provides, in relevant part, "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

"(1) the lawyer reasonably believes the representation will not be adversely affected; and
"(2) the client consents in writing after consultation."

Given the potential conflict between the lawyer's interest in a prompt disposition of the case and the client's needs and desires for things like motions and trials which will conflict with prompt disposition, the cited rule requires the following be contained in oral and written communication with the client at the first meeting with the contracting lawyer:

(A) That the client be informed that the lawyer is being paid a set sum, which should be specified, for the client's case which includes everything necessary for the client's defense. That the lawyer has contracted with the State Public Defender for the number of cases specified in the lawyer's contract and that it is in the lawyer's financial interest to dispose of the client's case as quickly as possible, under the lawyer's ethical obligations to the client. That the lawyer's pay for the case does not depend on whether there is a trial or motions or investigation into the facts of the case.

(B) That the State Public Defender also has lawyers available to handle the client's matter on a salaried basis as State employees or who are in private practice and paid $40 per hour for all time spent on the client's defense.

(C) That if the client is not comfortable with a lawyer who is paid the flat rate specified for the client's representation, the client can choose not to be represented by a flat rate contracting lawyer. If the client chooses not to accept such representation, he or she shall be informed that the case will be assigned to either a staff lawyer or a private lawyer paid at the specified hourly rate under SPD guidelines.

It is recommended that the client make his or her election at the initial conference with the contracting lawyer and that the judicial officer before whom the client and contracting lawyer make their first joint appearance inquire of both the client and the lawyer if these issues have been discussed, if the client fully understands the import and pressures outlined above and if the client consents to representation provided under the flat rate system. If the judicial officer is not satisfied that the defendant has knowingly, voluntarily and intelligently waived any potential conflict, the matter shall be adjourned for reassignment to a staff lawyer or hourly paid private lawyer under SPD guidelines.

Client dissatisfaction with representation under the flat rate contract system which stems from the pressures outlined above should be considered a satisfactory reason for having the client's case reassigned by the SPD, without regard to the number of counsel provided to the client by the SPD previously.

2. In order to counter the pressure to have defendant's plead guilty quickly, there should be a two (2) appearance minimum requirement in flat rate contract cases. These two appearances should be the initial appearance and a second appearance such as a pre-trial. Discovery materials should be made available at the initial appearance and the second appearance should be set far enough in the future to afford the lawyer and the client ample opportunity to review the discovery and to consult about the case.

Exceptions can be made in extenuating circumstances, but should be made only by a judge and only after full disclosure on the record of the reasons for dispensing with the requirement. In order not to penalize the defendant, he or she should be admitted to reasonable bail at the initial appearance.

Under no circumstance should the prosecutor or the courts construct any procedures which streamline the process for flat rate contract lawyers or otherwise play into the financial incentive for the lawyer to influence a quick plea from his client.

3. Unusual cases, such as those involving competency, mental illness, developmental disability, multiple defendants and clients with pending felonies or multiple charges, should not be assigned to lawyers providing representation under flat rate contracts. There is already great pressure on flat rate contracting lawyers to cut corners and attempt to resolve cases promptly. If such lawyers are burdened with complicated or lengthy cases, the pressures on those least able to resist will increase dramatically and the time consumed by such cases will put increased pressure on the other cases awarded to the lawyer under the contract.

4. At the time of any guilty plea tendered by a lawyer representing a client under a flat rate contract, the judge should engage in an extended colloquy with the lawyer and the client to make sure that contract pressures have not coerced the plea and that all fact investigation and legal research has been done to the client's satisfaction. Given the pressures on the lawyer and the deficits of the clients, the court will have to specifically address all potential factual and legal defenses in the case to insure the validity of the plea from subsequent attack.

These proposals may be criticized as too costly or burdensome in an already overextended system. It is submitted that without these provisions, citizens accused of crime may be forced into courses of action which result in innocent citizens being deprived of their liberty at worst, and courts clogged with conflict of interest and ineffective assistance of counsel claims at best.