Gideon Alert: Cochise County, Arizona contemplates contract system in light of important State Court decision

BY David Carroll on Tuesday, August 16, 2011 at 1:55 PM

“The insidiousness of overburdening defense counsel is that it can result in concealing from the courts, and particularly the appellate courts, the nature and extent of damage that is done to defendants by their attorneys' excessive caseloads,” declared the Arizona State Supreme Court in State v. Joe U. Smith, 140 Ariz. 355, 681 P.2d 1374 (Ariz. Apr. 4, 1984).  The Smith Court found that the lowest bid system for obtaining indigent defense counsel in Mohave County (Kingman) violated the defendant’s right to due process.  In light of the Smith case, Arizona counties struggle to provide fiscal predictability to the taxpaying public, while ensuring the rights to counsel and due process of each indigent defendant. The Wilcox Range News reported on August 10, 2011 that one county – Cochise County (Bisbee) – is currently considering a proposal to switch from an assigned counsel system paying an hourly rate of $50 to a system paying a “flat fee of $150 per misdemeanor case and $900 per felony case.”

The proposal was triggered, in part, by the State of Arizona’s further retrenchment from its duties under Gideon v. Wainwright.   Though Arizona’s counties shoulder the entire burden for funding and administering right to counsel services, the state historically offered some assistance through its “Fill the Gap” (FTG) funds. FTG supplemented county spending through funding accrued on fines, penalties, and fees on civil and criminal cases and then disseminated to public defenders, prosecutors, and courts based on the county’s population and three-year criminal caseload averages.  It should be noted that this financial assistance always amounted to less than one percent of the total cost of representation throughout the state (for example, FTG amounted to $1,149,300 of the $122,091,484 expended by counties in 2008 according a report by the American Bar Association).  Yet even this limited FTG funding was stripped from indigent defense offices in the last legislative session (though not, it is important to note, from the prosecutors).
 
With no state oversight or funding, each county has complete authority to determine the method it will employ to delivery primary trial-level and appellate-level representation, and the same for conflict cases.  And each county determines for itself the level of funding it will provide each year for those services.  Larger, more urban counties, including Maricopa (Phoenix) and Pima (Tucson), have established multiple public defender offices to handle primary and conflict representation, along with formal assigned counsel panels for multi-conflict cases.  Smaller, rural counties with less financial resources mostly use assigned counsel systems and/or flat-fee contracts to provide representation.  
 
The Smith decision made clear that there will always be forces pushing counties toward the least costly alternative. “It can be expected and understood that a government agency will (and in most cases should) try to obtain services at the lowest possible cost to the taxpayers. This is acceptable as long as the services obtained are adequate for the specific purpose to be served.” But, while it is acceptable for a government agency to seek the lowest cost for providing effective services, the Arizona high court looked to the attorneys involved to avoid entering into contracts that would impair their ability to provide adequate representation.  County governments meanwhile must account for: the time an attorney is expected to spend representing his indigent clients; the costs of support such as investigators, paralegals, and law clerks; the competency of the attorney; and the complexity of the cases; in determining the number and type of cases that an attorney can effectively handle without violating a defendant client’s due process rights. The Smith Court explained, when a county “fails to take into account” these basic criteria in letting contracts for public defense services, “there will be an inference that the adequacy of representation is adversely affected.” 
 
In this way, the Smith decision comports with prevailing national standards of justice. The eighth of the ABA Ten Principles of a Public Defense Delivery System explains that: “[c]ontracts with private attorneys for public defense services should never be let primarily on the basis of cost; they should specify performance requirements and the anticipated workload, provide an overflow or funding mechanism for excess, unusual or complex cases, and separately fund expert, investigative and other litigation support services.”  In short, flat-fee contracts create a direct financial conflict of interest between the attorney and each client.  Because the lawyer will be paid the same amount, no matter how much or little he works on each case, it is in the lawyer’s personal interest to devote as little time as possible to each appointed case, leaving more time for the lawyer to do other more lucrative private work.
 
The Cochise County system includes a primary public defender and an alternate defense office, and currently appoints private attorneys for an hourly fee to represent indigent clients in tertiary conflicts and overload cases.  The proposed contract system would replace the tertiary assigned counsel system.  The number of overflow cases going to contract attorneys could be great.  
 
The Arizona Supreme Court definitively stated in Zarabia v. Bradshaw, 185 Ariz. 1, 912 P.2d 5 (1995) that: “This court established presumptive case load ceilings for criminal defense counsel in State v. Joe U. Smith [].”  The National Advisory Commission (NAC) on Criminal Justice Standards and Goals first developed numerical caseload limits in 1973 under the auspices of the U.S. Department of Justice, which, with slight modifications in some jurisdictions, have been widely adopted and proven quite durable in the intervening three decades.  NAC Standard 13.12 on Courts states that the caseload of a public defender attorney should not exceed 150 felonies per attorney per year, 400 misdemeanors (excluding traffic) per attorney per year, 200 juvenile court cases per attorney per year, 200 mental health cases per attorney per year, or 25 appeals per attorney per year.  
 
These national workload standards are used as guidelines in Arizona for attorneys and offices to routinely file motions to turn back appointments.  (Contrarily, Arizona State Bar Ethics Opinion 90-10 rejected that a mathematical formula could be the basis of any attorney’s responsibility to clients, arguing that one attorney may be able to handle, for example, 160 cases in some instances.) The large urban jurisdictions firmly recognize the basis and rationale for caseload limitations, and those counties monitor and adhere to acceptable caseload standards on an ongoing basis.
 
Does Cochise County’s proposed contract violate national standards and the spirit of Smith?  Unfortunately, yes. The proposal goes a long way toward trying to balance cost efficiencies with adequate representation, and for that the county should be commended. Still, the proposal ultimately falls short in the most critical area: independence.  Where attorneys in their professional judgment believe that a client’s case requires more hours than are provided for under the presumptive flat per-case fee provided under the contract, they must first apply to the county administrative office for approval to be compensated for these additional necessary hours.  The attorneys’ lack of independent decision-making will likely place contract defenders in an untenable ethical and personal conflict situation. [For a more thorough analysis of the specific proposal, see David Carroll’s letter to the Cochise County Board of Supervisors here]. 
 
It should not be surprising then that, in response to a Cochise County request for public feedback, many of the most experienced criminal defense lawyers said they would no longer accept cases should the system be implemented.  One attorney said it best: "The worst case scenario, in my opinion, is the creation of 'client plea-mills,' where criminal resolution is affected by a 'mass production' mentality, and by routine. Criminal cases should be handled independently from one another, on a case-by-case basis. Otherwise, justice suffers or dies altogether... at the hand of economics." The Wilcox Range News reports, however, that other less experienced attorneys are less concerned.  To those attorneys considering entering into flat fee contracts, we offer the following warning from the Smith case: “We remind counsel that accepting more cases than can be properly handled may result not only in reversals for failing to adequately represent clients, but in disciplinary action for violation of the Code of Professional Responsibility.”
 
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