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Purpose and Scope of the Performance Guidelines

The Guidelines are intended to serve several purposes. The foremost purposes are to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of indigent defendants.

The Guidelines are intended to alert defense counsel to courses of action that may be necessary, advisable, or appropriate, and thereby to assist counsel in deciding upon the particular actions that must be taken in each case to provide the client the best representation possible. The Guidelines also are intended to provide a measure by which the performance of individual attorneys may be evaluated, and to assist in training and supervising attorneys.

The language of the Guidelines is general, implying flexibility of action appropriate to the particular situation at issue. Use of judgment in deciding upon a particular course of action is reflected by the phrases “should consider” and “when appropriate.” When a particular course of action is appropriate in most circumstances, the Guidelines use the word “should.” When a particular action is absolutely essential to providing quality representation, the Guidelines use the words “shall” or “must.” Even when the Guidelines use the words “should” or “shall,” or “must,” in certain situations the lawyer’s best informed professional judgment and discretion may indicate otherwise. Variations from the Guidelines also may be appropriate to accommodate local court procedures; however, counsel should protect a client’s rights and, when necessary, preserve error when local practices conflict with the client’s rights under state and federal law or counsel’s ethical obligations to the client.

The Guidelines are not criteria for the judicial evaluation of alleged misconduct of defense counsel to determine the validity of a conviction. The Guidelines may or may not be relevant to such a judicial determination, depending upon all of the circumstances of the individual case.

The Guidelines specifically apply to practice in Texas state court from the time of initial representation in trial-level proceedings to the exhaustion of direct review before the Court of Criminal Appeals. In any particular case, the Guidelines begin to apply at the time an attorney-client relationship is formed. The Guidelines require counsel to advise clients of their right to seek federal review in appropriate circumstances but do not extend to representation of defendants in federal court.

A. The primary and most fundamental obligation of defense counsel is to provide zealous and effective representation for the client at all stages of the criminal process. Counsel’s role in the criminal justice system is to fully protect and advance the client’s interests and rights. If personal matters make it impossible for counsel to fulfill the duty of zealous representation, counsel has a duty to refrain from representing the client. Counsel’s personal opinion of the client’s guilt is totally irrelevant. The client’s financial status is of no significance. Indigent clients are entitled to the same zealous representation as clients capable of paying an attorney.

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