indigent representation

After the efforts of Philadelphia Mayor Michael A. Nutter's administration to create an Office of Conflict of Counsel faltered, one of the main opponents of that plan has secured Department of Justice funding for a study on the quality of Philadelphia's indigent defense. I'm cross-posting the piece I wrote for Philly City Paper:

One of the main opponents of a plan to create a new Office of Conflict Counsel has secured Department of Justice funding to study the quality of defense that is available to Philadelphia's indigents.

Councilman Dennis O'Brien says the DOJ's Bureau of Justice Assistance has awarded $25,000 for the Sixth Amendment Center's David Carroll to conduct interviews with judges, defense lawyers, prosecutors and others involved in the criminal-justice system. Carroll will make recommendations this fall on how Philadelphia can better meet the American Bar Association's 10 Principles of a Public Defense Delivery System. Carroll has done similar work in Delaware, Utah, Tennessee, Mississippi and elsewhere.

Last winter, the Nutter administration had to scuttle its plan to award cases to a new, private law firm when the Defender Association of Philadelphia has a conflict. Currently, those cases go to a long list of lawyers who take such appointments.

Philadelphia attorney Daniel-Paul Alva's bid was the winner to start a new Office of Conflict Counsel in Philadelphia, but the contract process came to a halt over a legal technicality involving the name of the entity.

In an interview during a visit to Philadelphia on Thursday, Carroll said that he testified in City Council about that proposal because the focus was too much on whether a for-profit model was a bad idea and not enough on how to reach the ABA standards.

He said he has seen terrible public defenders and horrible private lawyers paid by the government to represent defendants. But he also has seen terrific public defenders and fantastic private appointed counsel.

A for-profit model is not inherently wrong if it is meeting the standards for ensuring defendants' Constitutional rights to adequate counsel, he says.

Pennsylvania "is the only state that has never contributed even a dime to the Sixth Amendment right of counsel," Carroll said. "It's an issue most urban jurisdictions don't need to deal with."

Most cities are not under the same pressure for cost containment in their criminal courts, he said.

Philadelphia also does not have any system of oversight to ensure defendants are getting good representation from their public defenders or private lawyers appointed by the court, Carroll said.

Matt Braden, O'Brien's chief of staff, said the fact that the funding for the study is independent is important — there can be no question of Carroll's independence and lack of bias.

In requesting the money for a study, O'Brien wrote that there are issues because Pennsylvania requires local governments to bear the entire cost of providing attorneys to poor defendants.

"Though it is not believed to be unconstitutional for a state to delegate such responsibilities to local government, in doing so, a state must guarantee that local governments are not only able to provide such services, but they are, in fact, doing so," O'Brien said.

Alva was proposing to create a for-profit law firm to represent criminal defendants and family-court defendants when the Defender Association of Philadelphia, Community Legal Services or the Support Center for Child Advocates was already representing another person in the case. The new firm was to handle the first appointments in criminal cases and juvenile-delinquent cases in which the Defender Association has a conflict, and to represent the primary caregiver in every dependency case. The firm, which bid $9.5 million, would have taken on all new appointments.

The latest development in the controversy over changing how poor Philadelphians get their lawyers was City Council’s passage Thursday of a legislative package to establish financial and quality-control auditing requirements for some contracts.

The next question is whether Philadelphia Mayor Michael Nutter will veto the legislation.

If Nutter signs the legislation, then one piece of legislation involves a ballot question to be put to Philadelphia voters on whether City Council should have to approve contracts for indigent representation of more than $100,000.

Nutter’s administration wants to change from a model in which individual attorneys get court appointments in criminal and family-court cases in which the Defender Association of Philadelphia, the Support Center for Child Advocates or Community Legal Services have a conflict of interest. Instead, Nutter wants to contract with a new for-profit law firm to handle the work.

Councilman Denny O’Brien, the main opponent to the mayoral plan, said in his official remarks “I do not believe that every contract should require City Council approval. However, I do strongly believe that any contract dealing with an individual’s constitutional rights is important enough to require Council approval."

The plan to award the contract for a new Office of Conflict Counsel to Philadelphia attorney Daniel-Paul Alva was scuttled because Alva not have the same name in place at the start of the process as at the end of the process. So the contract couldn't be issued legally.

By making the legislative threshold $100,000, O’Brien’s legislative package would not involve review of the contracts with individual private attorneys. The Defender Association, the Support Center and CLS also were carved out because they have been contracting with the city for many years, O’Brien said.

The Legal Intelligencer’s P.J. D’Annunzio and the Philadelphia Inquirer also reported on the development.

Philadelphia City Paper cross-posted my report on how the city of Philadelphia is back to square one in its plan to develop an Office of Conflict Counsel to represent criminal defendants and family-court defendants when the Defender Association of Philadelphia, Community Legal Services or the Support Center for Child Advocates is already representing another person in the case. An excerpt: 

The city of Philadelphia will not be entering into a contract right away to create an Office of Conflict Counsel after all.

Mayor Michael A. Nutter's press secretary, Mark McDonald, said in an email that the winning bidder did not have the same name in place at the start of the process as at the end of the process, so the contract can't be issued legally.

The City Code requires that the name of the entity initiating the bid process in the eContract Philly system have the same name as the entity with whom the city contracts.

Philadelphia attorney Daniel-Paul Alva's bid appeared to be the winner to start a new Office of Conflict Counsel in Philadelphia.

However, Alva and his former partner on the project, Scott DiClaudio, bid for the conflict-counsel work as Alva & Associates LLC. DiClaudio stepped back from the project in the wake of social-media postings he made. The city said in a statement that Alva is actually "not associated with Alva & Associates," and that his actual firm name is the Law Offices of Daniel P. Alva. The name change means the city cannot contract with Alva at this point.

"In no way does this reflect on the proposal to establish a Conflict Counsel office," McDonald wrote. "The administration is committed to carrying this out. Nor does it reflect on the quality of the proposal from Mr. Alva. But the rules are clear."

The city has to begin the bidding process again from scratch.

Alva wrote in an email that he will resubmit his bid in the new contract process and "hopefully will be chosen again."

The city of Philadelphia is not going to be entering a contract right away to start a for-profit Office of Conflict Counsel after all.

Mayor Michael A. Nutter's press secretary, Mark McDonald, said in an email that the winning bidder did not have the same name in place at the start of the process as at the end of the process, so the contract can't be issued legally.

Philadelphia attorney Daniel-Paul Alva was the winner of the bid to start a new Office of Conflict Counsel in Philadelphia.

"In no way does this reflect on the proposal to establish a conflict counsel office," McDonald wrote. "The administration is committed to carrying this out. Not does it reflect on the quality of the proposal from Mr. Alva. But the rules are clear."

The city has to begin the bidding process from scratch.

Alva wrote in an email that he will resubmit his bid in the new contract process and "hopefully will be chosen again."

The city announced its intention Tuesday, December 31, to contract with Alva & Associates to start a for-profit law firm from scratch to represent criminal defendants and family-court defendants when the Defender Association of Philadelphia, Community Legal Services or the Support Center for Child Advocates is already representing another person in the case.

The plan was for the firm to handle the first appointments in criminal cases and juvenile-delinquent cases in which the Defender Association has a conflict, and for the firm to represent the primary caregiver in every dependency case, Alva said in an interview earlier this month. The firm would have taken all new appointments starting March 1. The firm bid to do the work for $9.5 million.

The plan has generated opposition from many quarters, including from Councilman Dennis O'Brien. O'Brien's director of legislation and policy, Miriam E. Enriquez, said in an interview today that her office is pleased the process is starting over and that they hope the next iteration of conflict-counsel representation makes "sure the constitiontal rights of the indigent are preserved and protected."

Alva said in an interview earlier this month that he was looking forward to proving “detractors” wrong.

While the firm will be for-profit, “I did not expect to make one cent of profit” from city funds, Alva said. “No one is going to accuse myself or my firm of pocketing profit” at the expense of quality legal representation.
 

The new office didn't plan to make a profit from city tax dollars, Alva said, but from fees earned by referring clients' cases in other types of matters.

Through those referrals, the firm could help achieve the goal of “Civil Gideon,” a movement in recent years to expand legal representation for civil legal matters involving fundamental needs like custody of children or housing, Alva argued.

There were four other bidders for the contract: Ahmad & Zaffarese & Smyler, AskPhillyLawyer.com, Montoya Shaffer and Sokolow & Associates, according to the city's notice.

My piece for Philadelphia City Paper on a proposal to change how poor family-court litigants and criminal defendants get their lawyers:

http://citypaper.net/article.php?Privatizing-legal-representation-for-po...

Since last year, Mayor Michael Nutter’s administration has quietly sought to revolutionize how court-appointed lawyers are provided to poor Philadelphians, through a new office of conflict counsel. But on Monday, Oct. 7, City Council will hold a hearing to air concerns about the plan.

And there are lots of them.

Since the city put out — and then extended — its request for proposals (RFP) for the contract, it received only one substantive bid. Two of Philly’s major nonprofit legal organizations declined to bid. The one comprehensive bid that the city did receive, and which it appears prepared to accept, came from two ex-prosecutors now in private practice. And even before their bid was accepted, one of the co-bidders withdrew in the wake of a scandal.

“This has been tainted by collusion, lack of transparency and the conflicts we see by creating a private law firm,” says Councilman Dennis O’Brien. O’Brien, who sponsored legislation calling for the hearing, argues that the very RFP was designed to bypass City Council input, and therefore public scrutiny. 

Contracts for a year or less, like the one proposed for the conflict office, don’t require Council approval.

In an interview with City Paper earlier this year, Nutter’s chief of staff, Everett Gillison, himself a former public defender, described the new office as his brainchild. “I know that the public-service attorneys that do this work need additional resources, and that’s why I want to bring this different model to the conflict counsel,” he said, citing the lack of funding for support staff such as paralegals and investigators. 

“My focus is on the person that needs the lawyer,” he said. “I want them to have the investment that’s necessary.” 

The conflict office would come into play in cases the nonprofit Defender Association of Philadelphia doesn’t handle. That includes cases where the Defender has a conflict of interest, such as representing one of several co-defendants, and cases of parents whose kids are being removed by the Department of Human Services. 

Up until now, finding qualified lawyers to take on these cases has been a challenge. That is “largely a function of the miserable rates we’ve been paying for years,” says Philadelphia Court of Common Pleas Senior Judge Benjamin Lerner. Last year, the Philadelphia courts refused to continue appointing defense lawyers and paying them out of the court budget. That left the city paying the tab for the more than 20,000 attorney appointments made in Philadelphia every year. 

That, in turn, set the stage for the city’s request for “creative and innovative” conflict-counsel proposals. And that led to the one substantive bid submitted: a $9.5 million plan for a new law firm run by Daniel-Paul Alva, founder of the four-member Alva & Associates law firm, and Scott DiClaudio, who also has his own firm. It is not entirely clear why the Alva-DiClaudio bid was the only substantive one submitted (one bid was just to handle the administrative process and another involved fewer than half a dozen attorneys). Nor is it clear how it was vetted. The administration declined to comment. 

DiClaudio -— who sources say is known for his business acumen and passion, if not perfect propriety — resigned from the project after the Legal Intelligencer reported on two Facebook postings he had made. In one post, DiClaudio shared a page titled “American White History Month 2” with an avatar, “Never Apologize for Being White.” In another, he commented that he had spent almost 20 years “representing scum.” (He told the newspaper that the first post had been an accident, and the second was a joke.) DiClaudio also had a past disciplinary history for failing to file appellate court papers on time or at all, failing to provide a written fee agreement to a client and “for making false and misleading statements” to the state bar’s Office of Disciplinary Counsel. 

In an interview, Alva said, “Scott has voluntarily resigned from the project.” DiClaudio confirmed that he had stepped back, but declined to comment further. 

Lerner, who before becoming a judge was the chief public defender, says he is not certain, given the costs involved, that the math works on Alva’s proposal. 

Catherine Carr, executive director of Community Legal Services, says her organization considered bidding to expand its representation of parents in family-court cases, but decided against it because “the money per case is very low.” Carr did not think CLS could do high-quality legal work within the budget constraints. Lerner and others said the Defender Association was asked by the city to run a separate conflict-counsel office, but decided against it. The Association did not respond to requests for comment. 

But Lerner is also hopeful. He says he’s impressed because Alva’s proposal involves a “significant number of really excellent lawyers.” Alva says that no lawyers with less than 10 years of experience will be hired: “We really wanted to go blue chip.”

He argues that the new office will benefit clients, because its salaried attorneys would have no incentive except the client’s best interest. Currently, court-appointed lawyers get paid more if they take their cases to trial — even if it would be better to settle, Alva says. Further, he argues that salaried lawyers can handle more cases by being assigned to one courtroom throughout the day.

Court leaders and Alva’s team have already started to meet to discuss centralizing cases, according to both Lerner and Alva. But, critics say, before things move further many questions ought to be answered. For starters: Is the plan even an appropriate way to handle conflict cases? “I don’t understand the words ‘for profit’ in the same sentence as ‘indigent defense’,” says Marc Bookman, a former defender who’s now a leading advocate for sufficient pay for lawyers appointed in capital cases. Poor clients’ interests are served well by nonprofits, he says. But a for-profit firm has conflicting motivations: “Do you maintain your profit? Or do you properly represent your client, which often costs resources and money?” 

O’Brien hopes the hearing, though late in the game, could highlight alternative conflict-counsel systems. He would prefer a system like the federal one, in which an independent panel certifies that defense lawyers have sufficient expertise. He’d also like to see court-appointed counsel get a checkup every three years. 

Councilman Bill Greenlee, who joined O’Brien in calling for a hearing, says, “We don’t want to have fights with the administration all the time.” But, he adds, despite Nutter’s stance that “transparency is the best policy,” Council still does not have the answers it needs.