La. Admin. Code tit. 22 § XV-1923

Current through Register Vol. 50, No. 11, November 20, 2024

Section XV-1923 - Performance Standard 11: Supervision, Review and Consultation

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.

La. Admin. Code tit. 22, § XV-1923

Promulgated by the Office of the Governor, Public Defender Board, LR 4194 (1/1/2015).

AUTHORITY NOTE: Promulgated in accordance with R.S. 15:148.