A flat-fee contract pays a lawyer a single lump sum to handle an unlimited number of cases. This type of contract creates 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 work. Worse yet, many flat-fee contracts require the lawyer to pay all case-related expenses out of the single lump sum. In this situation, it is in the lawyer’s personal interest to incur as little expense on behalf of clients as possible, so that more of the lump sum payment can go toward the lawyer’s fee. Finally, some flat-fee contracts require the lawyer to hire other lawyers out of the same single lump sum, such as when an additional lawyer is required to represent a co-defendant or in other conflict case situations. Such contracts are oriented solely toward capping defense costs at the lowest possible level, without regard to the lawyer’s ethical and constitutional duties to the client.
The eighth of the ABA Ten Principles 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 the Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services, written by NLADA and adopted by the ABA in 1985, Guideline III-13 similarly prohibits contracts under which payment of expenses for necessary services such as investigations, expert witnesses, and transcripts would "decrease the Contractor's income or compensation to attorneys or other personnel," because this situation creates a conflict of interest between attorney and client.
Under this type of contract, any work performed by the attorney beyond the bare minimum effectively reduces the attorney’s take-home compensation. Attorneys learn that filing motions lengthens the life of cases, reduces the attorney’s profit, and incurs the judge’s displeasure — which in turn may lead to out-right termination of a contract. The attorney’s caseload will creep higher and higher without the attorney earning any more money, yet the attorney is in no position to refuse an excessive number of cases – in fact they are contractually bound to accept them no matter how many. For attorneys who want to provide criminal defense representation to the poor in flat-fee contract jurisdictions, refusing to take every case for a single flat fee will effectively preclude them from practicing their chosen vocation.
A Tale of Two Counties: Washington State & the Prohibition of Flat-Fee Contracts
King County, Washington (Seattle) has a contract system for providing public defense, and that contract system is designed in a way that complies with national standards and protects against conflicts of interest. Poor people charged with crimes in Seattle are assigned to one of four independent, non-profit private law firms that contract with the county to provide right to counsel services. The contracts with the county government limit the number of cases to reasonable levels. If, for instance, an indigent defendant is charged with a crime carrying the possibility of a death sentence, the public defender automatically receives additional money from the county to put two attorneys solely on that one case until its completion. This allows the public defender to investigate, prepare, and offer mitigation evidence to the prosecutor early in the case, sometimes even in advance of a decision to seek the death penalty, all of which saves taxpayers the expense of a costly capital trial in those cases where it is not in the best interest of justice to pursue death as a sentencing option. Clients in King County are assured that their public defense attorneys have adequate time to effectively represent them.
Contrast that with Grant County, Washington — a jurisdiction of approximately 80,000 that is situated two counties east of King County. In 2001, Grant County contracted with a single lawyer to administer the county’s entire indigent defense caseload, regardless of the number of cases opened each year, for a predetermined dollar amount. That one lawyer had complete authority to decide how many cases he would handle himself and how many he would hire other lawyers to handle for whatever price he could negotiate. As a three-part special report by the Seattle Times described it, “[t]he more cases he kept for himself, the fewer he had to dole out. And the fewer he doled out, the more money he kept.” In one year he kept $225,000 from the contract for himself. The following year he assigned himself 413 felony cases – a number that is 275% of the felony caseload maximum established under all nationally-recognized caseload standards and that would only allow him to devote an average of four hours to each case, including cases that went to trial. One client who spent seven months in jail due to the deficient work of this Grant County public defender won a $3 million judgment against the public defender personally, and the county settled with this one client by paying $250,000. The public defender was also disbarred.
Grant County’s problems were addressed as a result of an American Civil Liberties Union of Washington 2004 class action lawsuit suing the county over its management of the system. Brought on behalf of indigent persons facing felony charges and represented by the county’s public defense system attorneys, the suit alleged that the overwhelming caseloads allowed by the county led attorneys to take short cuts such as failing to investigate cases, failing to file needed motions, and failing to meet with clients, among a host of other failings. The case was settled after Superior Court Judge Michael Cooper found that Grant County had “created an atmosphere in which” indigent defendants “developed a well-grounded fear” of not receiving effective legal counsel. Under the terms of the settlement, the county had to provide enough full-time public defense attorneys to comply with national caseload guidelines, provide effective supervision and training, and hire a monitor to oversee compliance with the settlement agreement for at least five years, among other requirements.
In September 2008, the Washington Supreme Court banned indigent defense providers statewide from entering into any flat-fee contract that requires them to bear the cost of providing conflict counsel or the cost of providing investigation or expert services because these contracts “involve an inherent conflict between the interests of the client and the personal interests of the lawyer.”
Not All Contract Systems are Deficient: The Oregon Story
A very different type of public defense contract system exists in Oregon. The Oregon Public Defender Services Commission oversees all trial-level indigent defense services. The state funds 100% of indigent defense services, which are provided through a series of contracts with private attorneys, consortia of private attorneys, or private nonprofit defender agencies. Through these contracts, the Commission maintains a public defense system that ensures the quality, effectiveness, efficiency, and accountability called for by national standards.
The contracts are the enforcement mechanism to ensure that state standards are met. For instance, every non-profit public defender agency is required to maintain an appropriate and reasonable number of full-time attorneys and support staff to perform its contractual obligations. If a defender agency does not meet this requirement, or to the extent that the agency lawyers are found to be handling a substantial private caseload, the contract will not be renewed.
Oregon also enforces strict workload standards in their contracts through a system of case weighting. For instance, a typical contract sets a precise total number of cases to be handled by the lawfirm during the contract term. The cases to be handled are further broken down by the specific types of cases, taking into account the amount of work generally required by each case type. This means that within one office an attorney handling more minor felony cases might carry a higher number of cases than an attorney assigned to defend serious violent felonies that require more time. This allows the public defense office and the Commission to more accurately plan for and ensure compliance with the actual work and staffing needs. Every six months, each public defense contractor has a budget review process with state funding officials. During this review, the contractor can request to be additionally reimbursed by the state for extra work done in cases that turned out to require more than the usual amount of time.
Each contract public defender office monitors the number of cases it receives and can project the extent to which it will reach its estimated workload maximum on a week-by-week basis. It notifies the court promptly if workloads are being exceeded, and when that occurs then it declines any additional appointments. If, for example, the office meets its workload level on Wednesday, all new cases for the rest of that week must go to the private bar attorneys contracted to handle the overflow cases. This flexibility allows each office to consistently provide a uniform quality of service and maintain manageable workloads for attorneys, even during periods of lower-than-normal staff levels due to turnover, sickness, or other leave.