Louisiana Administrative Code
Title 22 - CORRECTIONS, CRIMINAL JUSTICE AND LAW ENFORCEMENT
Part XV - Public Defender Board
Chapter 19 - Performance Standards for Criminal Defense Representation in Indigent Capital Cases
Section XV-1923 - Performance Standard 11: Supervision, Review and Consultation
Universal Citation: LA Admin Code XV-1923
Current through Register Vol. 50, No. 3, March 20, 2024
A. Supervision of the Defense Team
1. Primary responsibility
for the supervision of the defense team and the teams compliance with these
standards and the guidelines rests with lead counsel. Lead counsel shall
establish a system for communication, feedback and supervision of the defense
team that shall ensure that the team provides high quality representation and
that any deficiencies in compliance with the guidelines or standards are
promptly identified and remedied. Lead counsel should ensure that all team
members are aware of their obligations under the guidelines and performance
standards.
2. Primary
responsibility for the supervision of experts rests with lead counsel, though
this responsibility may be delegated to other counsel who are more directly
responsible for working with a particular expert. Counsel supervising an expert
shall ensure that appropriate funding is secured and maintained for the experts
services, that the expert performs the requested services in a timely fashion
and to a high quality and that the experts services are promptly invoiced and
paid. By submitting an experts invoice to the office of the state defender for
payment, counsel certifies that the work performed was reasonably necessary and
that it was completed to an appropriate standard.
3. The case supervisor is responsible for
monitoring the correct, effective and appropriate implementation of the capital
guidelines and performance standards in each case. In contrast to the
responsibilities of lead counsel to make strategic decisions in the case, this
is an administrative level of supervision designed to ensure that the team is
assembled and is functioning in accordance with the guidelines and standards.
The case supervisor shall be certified as lead counsel and shall have a
comprehensive knowledge of the requirements of the capital guidelines and
performance standards. The case supervisor shall not be a staff member in the
same office as members of the defense team or district defender of the district
responsible for the case.
4. The
case supervisor for each case shall meet with the defense team no less than
once every three months and provide a quarterly report to the capital case
coordinator in the form provided, advising of the extent to which the team and
its representation are in compliance with the guidelines and
standards.
5. The case supervisor
is a lawyer engaged to consult with counsel on the defense team within
lawyer-client privilege to assist in ensuring that each client is receiving
high quality representation in compliance with the capital guidelines and
performance standards. The case supervisor does not, by virtue of being case
supervisor, have the authority to act on behalf of the defendant or to direct
members of the defense team to take any action or refrain from taking any
action. The case supervisor may make recommendations to the defense team,
resolve workload questions pursuant to guideline
§919 and report non-compliance with the
guidelines to the district public defender and state public defender. All
members of the defense team shall cooperate with the case supervisor and
provide access to the case file and case theory documents as
requested.
6. The state defender,
district defender or director of a defender organization having an employment
or contractual relationship with counsel on a defense team may exercise such
supervisory and regulatory authority as is consistent with the
Louisiana Rules of Professional Conduct and provided for
within that employment or contractual relationship. However, it shall remain at
all times the responsibility of individual counsel to ensure that
representation is provided in accordance with the capital guidelines and
performance standards.
7. The
capital case coordinator shall have responsibility for monitoring the
performance of counsel and defender organizations providing capital
representation in the state and reporting to the state defender. In performing
this supervisory role, the capital case coordinator shall have particular
regard to: the capital guidelines and performance standards; applications for
certification and re-certification of counsel; quarterly reports submitted by
case supervisors; requests for expert assistance by counsel; briefings from
counsel following the closure of cases; findings and recommendations of case
review committees formed under guideline §921(C); case observation; and other
reliable sources of information.
8.
Where the capital case coordinator becomes aware that a defense team is not
providing representation consistent with these guidelines and associated
performance standards, the capital case coordinator, shall take necessary
action to protect the interests of the attorney's current and potential
clients.
B. Case Review Meetings, Consulting Counsel and Practice Advisories
1. In order to ensure high quality legal
representation in each case, identify any problems in the case in a timely
fashion, develop the knowledge and skill of capital defenders and build the
capacity of the indigent capital defense community in this state,
representation in each case should include the use of case review
meetings.
2. Case review meetings
are meetings facilitated by a professional external to the team. Case review
meetings will include the whole defense team, the facilitator and a diverse
group of appropriately qualified professionals external to the team (both
lawyers and non-lawyers). The case review meeting will involve a systematic and
comprehensive review of the case and the representation appropriate to the
stage of proceedings and preparation of the case. The case review meeting will
involve a structured dialogue and critical thinking designed to empower the
defense team and is not designed as a mechanism for assessing the performance
of the defense team or its members. The case review meeting will produce a list
of concrete commitments from the defense team arising from the discussions in
the case review meeting.
3. The
documents prepared for each case review meeting, the minutes of the case review
meeting and the commitments arising from each case review meeting shall be
maintained by counsel in the relevant case file and shall be available for
review by the case supervisor.
4.
At each stage of representation in a case (trial, appellate and
post-conviction) there should ordinarily be a minimum of three case review
meetings conducted. Case review meetings will ordinarily be conducted: early in
the assignment of the case (to ensure the team has been properly assembled, is
adequately resourced and has an appropriate plan for advancing representation
in the case); once substantial work on the case has been commenced (to ensure
that the work is proceeding appropriately, to provide feedback on the defense
theory, to provide input on investigative and litigation planning and to
respond to particular issues that have developed in the case); and, as the case
is approaching the culmination of the work at the particular stage of
representation (to ensure that the case is ready to proceed, to provide
feedback on the planned execution of the case theory that has been developed
and to troubleshoot any final issues that have arisen).
5. Facilitators for case reviews conducted
pursuant to these standards shall be approved by the capital case
coordinator.
6. In addition to
counsel assigned as a part of the defense team and the case supervisor, counsel
should consult with and take advantage of the skills and experience of other
certified capital defenders. The state defender may require as a condition of
provisional certification that counsel consult with other counsel designated by
the state defender. Counsel may consult on a specific issue or issues, or may
consult in an ongoing fashion with the defense team.
7. Counsel consulting on a case is acting
within lawyer-client privilege and should maintain confidentiality
accordingly.
8. Counsel consulting
with a defense team should ensure that their work as a consulting counsel and
any advice provided is fully documented. In order to ensure the accuracy of any
advice provided, consulting counsel should seek to reduce that advice to
writing, including a notation of the issue presented and the factual or legal
assumptions that underpin the advice. This requirement is not intended to
require consulting counsel to provide briefing on the basis of any advice or
otherwise increase the scope of the responsibility of counsel consulting on the
case but instead to ensure that such advice as is given is reduced to writing
to avoid the miscommunications inherent in oral communication.
9. In order to assist capital defenders in
the performance of their duties, the capital case coordinator may from time to
time issue practice advisories. These practice advisories shall not have the
status or effect of rules promulgated by the Louisiana Public Defender Board.
The practice advisories represent the opinion of the office of the state public
defender as to best practices and are intended to provide a timely and flexible
way to provide expert advice to the field on specific or emerging areas in
capital defense.
10. Before a
practice advisory may be issued, it must be approved by an advisory committee
of no less than four members including counsel actively engaged in capital
defense at trial, appellate and post-conviction level. No practice advisory
shall be issued without the approval of the state public defender.
AUTHORITY NOTE: Promulgated in accordance with R.S. 15:148.
Disclaimer: These regulations may not be the most recent version. Louisiana may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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