dependency law

(Cross-posted from Philadelphia City Paper: http://citypaper.net/article.php?City-Councilman-pushes-back-on-proposed-Office-of-Conflict-Counsel-16885)

A City Councilman is pushing back on a plan by Mayor Nutter's administration to change how court-appointed lawyers are provided to poor Philadelphians through a new Office of Conflict Counsel.

Councilman Dennis O'Brien said in an interview today that he was planning to introduce two pieces of legislation that would provide better accountability for the proposed office. Unlike some other city contracts, O'Brien said, legal services for the poor involve Constitutional rights.

"This model does not guarantee that Constitutional rights are protected," the councilman said. "That is our mission, and we are committed to it."

The city is contemplating contracting with an ex-prosecutor who would set up a new private law firm to handle the legal representation of Philadelphians involved in family-court cases or in criminal cases when the Defender Association of Philadelphia, Community Legal Services or the Support Center for Child Advocates is already representing another person in the case.

One of O'Brien's proposed bills would require the appointment of a quality-control auditor to ensure the legal representation "is living up to national ABA [American Bar Association] standards," an O'Brien aide, Miriam Enriquez, said in a joint interview. According to the draft ordinance, the auditor would be independent of the law firm, have been practicing law for at least seven years, and an expert in indigent defense. The managing director, who works for the mayor, would nominate the quality control auditor.

The ordinance also would require a detailed audit of the allocation of city taxpayers' dollars to the law firm and how the money was spent. Disclosure of the "job titles, job descriptions, resumes and performance reviews of all owners, employees and any other person that has a financial stake in the contract" would also be required, according to the draft legislation.

A second bill would ask Philadelphia voters to approve a change to the Philadelphia Home Rule Charter (once approved by City Council) next May. If enacted, the charter amendment would require City Council approval of every contract involving the expenditure of $100,000 or more on legal representation for poor Philadelphians. Currently, contracts that are for less than one year, at any amount, don't need City Council approval.

Mark McDonald, Nutter's press secretary, declined to comment because the legislation has not yet been introduced.

O'Brien's chief of staff, Matthew Braden, said that the legislation was being introduced because Nutter and his chief of staff, Everett Gillison, did not seem willing to alter course on the conflict counsel contract after a meeting with O'Brien and his aides last month

The meeting was held after City Council convened a hearing in October on the plan to go to the new model

Several witnesses during a Philadelphia City Council hearing Monday morning questioned how a for-profit law firm could provide adequate representation to poor Philadelphians whose constitutional rights are at stake in criminal and family cases.

The city of Philadelphia is preparing to contract with one law firm to handle the cases in which the Defender Association of Philadelphia has a conflict.

Attorney Jeffrey Lindy, who is involved with the appointment of defense counsel in federal criminal cases, testified he supports Mayor Michael Nutter. But Lindy said “this is not a good idea. Good people can make bad decisions and this is one of those bad decisions.”

Philadelphia Bar Association Chancellor Kathleen Wilkinson said that adequate representation can't be provided if $10 million would be expended for 22,000 cases. That would work out to be about $450 per case, Wilkinson said.

The Nutter administration is reportedly close to contracting with Daniel-Paul Alva to form a new law firm, but Everett Gillison, Nutter's chief of staff and deputy mayor for public safety, said during his public testimony that he would not comment on a contract that is still being negotiated.

But Gillison said that there is an opportunity to provide additional services by going to a consolidated model of legal representation for conflict cases.

"Right now the opportunity before me is to raise the level of practice and have the services that need to be had for the next party,” Gillison said.

Due to “economies of scale,” more resources could be provided to poor Philadelphians guaranteed to have their lawyers paid for by city government, Gillison said.

He also said that dependency practice in which parents' rights to their children can be terminated for neglect or abuse “is completely and totally in need of additional rescues.” One law firm could staff courtrooms and have social workers and investigators available on cases, Gillison said.

"Right now quite frankly, we as a city and we as a state, don't provide the kinds of resources we're supposed to provide,” Gillison said ”I'm not trying to boil the ocean here. I'm trying to get something additional and better."

Any defendants with which the Defender Association or the proposed conflict-counsel law firm would have a conflict would still be represented by court-appointed counsel, Gillison said. The city does not have the ability to provide additional services for those defendants right now, he said.

Gillison also questioned the argument that the for-profit legal model would be problematic. Currently, the city has “the equivalent of many hundreds of private law firms doing the work” instead of one law firm.

Gillison said that he has tried to answer questions about the conflict-counsel proposition openly and honestly, but Councilmen Dennis M. O'Brien, joined by Councilman Bill Greenlee, argued that their questions about the proposal have not received responses from the administration. They also questioned why the contract was being negotiated as a one-year contract with the option to renew; otherwise a multi-year contract would necessitate City Council approval. Both councilmen co-sponsored the resolution for the hearing Monday.

Legal representation for Philadelphians who don't get public defenders is woefully inadequate, Wilkinson said, including because they do not get the resources of investigators, social workers and  paralegals.

Other issues with the new model include ensuring that there are not potential conflicts of interest for part-time lawyers who have their own practices on the side or conflicts of interest from criminal or family-law clients being “mined” to make referrals in civil lawsuits or other legal work, Wilkinson said. She did not take a position on whether a for-profit law firm was per se a bad idea.

Lindy called it impossible to protect criminal defendants' Sixth Amendment rights to effective assistance for counsel if $9.5 million is expended on 22,000 cases by the city of Philadelphia. In comparison, the federal government expended $5 million for 580 cases, Lindy said.

Lindy also said that the current model was not working well in Philadelphia because some attorneys are trying to make a living on court-appointed cases, resulting in corners being cut, defendants not being visited in the Philadelphia Prison System, defendants' parents' phone calls not being returned or crime scenes not being investigated in person.

"You're not going to be doing that stuff if you're handling a heavy diet of court-appointed cases," Lindy said.

Chief Public Defender Ellen Greenlee testified that the amount paid for conflict-counsel lawyers, including for dependency counsel is an “absolute disgrace.”

There also was some disagreement during the hearing on whether the First Judicial District had given up its power to appoint counsel along with its unilateral decision that it would no longer pay counsel out of its budget. The Philadelphia courts did not send a representative to testify, Gillison said that the court had given up its appointment power, and O'Brien said that it was only the responsibility to pay court-appointed counsel that the courts surrendered.

Philadelphia Court of Common Pleas Judge John W. Herron, administrative judge of the trial division, said in a September 24 e-mail to me that “the court will no longer receive or disburse funds for court appointed counsel, but the court will continue to review and approve fee petitions and refer these to the city for payment.”

In his opening remarks, O'Brien said that in 2013, which marks a half-century since the U.S. Supreme Court ruled those too poor to afford their own lawyers must be provided government-paid counsel in order to protect their constitutional rights, that City Council is working to preserve those rights by questioning the administration's conflict-counsel proposition.