Philadelphia

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.

Philadelphia attorney Daniel-Paul Alva, winner of the bid to start a new Office of Conflict Counsel in Philadelphia, said in an interview today that he is looking forward to proving “detractors” wrong.

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 firm will do the work for $9.5 million, which is what the firm bid, Alva said.

The firm will handle the first appointments in criminal cases and juvenile-delinquent cases in which the Defender Association has a conflict, and the firm will represent the primary caregiver in every dependency case, Alva said. The firm will take all new appointments starting March 1.

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 won't 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.

Karen Williams, an attorney who does court-appointed work, said in an email sent on behalf of other court-appointed counsel and herself that Mayor Michael A. Nutter's administration “has chosen to disregard the constitutional rights of an already disadvantaged clientele by substituting a conscientious corps of skilled attorneys -- who are, in essence, 'pro bono' – for those bound by the 'bottom line.' Rather than increase compensation for counsel who have labored long, hard and faithfully (even when not paid),” ineffective counsel will ensue.

Councilman Dennis O'Brien also opposes the plan. Funding a new law firm just at $9.5 million is not enough money, O'Brien said. If the system is "underfunded, criminal cases, even death penalty and homicide cases, are going to be dismissed under the speedy trial rule," he predicted.

And "when the system crashes and burns and we can't put Humpty Dumpty back together again, all the lawyers that were doing this [legal work] will have gone elsewhere," O'Brien said.

The standard of representation will improve upon the current model in which individual attorneys, often solo practitioners, are appointed by the court, Alva counter-argues. Attorneys working for his firm will be able to be more efficient than the current model in which there are “300 lawyers running from room-to-room and for the most part not getting in the rooms they need to be because they can't be in more places than one,” Alva said. There also will be oversight of legal work, and the firm will provide social workers and social services to clients, he said.

The First Judicial District has been cooperative, including agreeing to concentrate the firm's cases in certain courtrooms and on certain days, Alva said.

Some lawyers working for the firm will keep their own part-time practices, and their overhead will be paid for by Alva's new firm, he said. In return, they will pay a percentage of their profits from their other legal work in exchange for Alva covering their overhead, he said.

Alva, founder of the four-member Alva & Associates law firm, and Scott DiClaudio, who also has his own firm, originally submitted the plan. DiClaudio resigned from the project following social-media postings he made.

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

While Alva & Associates was not the lowest bidder, the city states in its notice that Alva & Associates would provide "superior quality, efficiency and fitness" as well as "superior ability or capacity to meet particular requirements of contract and needs of City Department and those it serves."

My piece for Philadelphia City Paper:

On Tuesday, the city released a notice of its intention 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.

Daniel-Paul Alva, founder of the four-member Alva & Associates law firm, and Scott DiClaudio, who also has his own firm, originally submitted a $9.5 million plan to create a for-profit Office of Conflict Counsel. DiClaudio resigned from the project following social-media postings he made.

 In September, Alva told City Paper 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 said. Further, he argued that salaried lawyers can handle more cases by being assigned to one courtroom throughout the day. Alva could not be reached for comment on Friday.

Councilman Dennis O'Brien opposes the plan. Funding a new law firm just at $9.5 million is not enough money, O'Brien said. If the system is "underfunded, criminal cases, even death penalty and homicide cases, are going to be dismissed under the speedy trial rule," he predicted.

And "when the system crashes and burns and we can't put Humpty Dumpty back together again, all the lawyers that were doing this [legal work] will have gone elsewhere," O'Brien said.

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

While Alva & Associates was not the lowest bidder, the city says in its notice that Alva & Associates would provide "superior quality, efficiency and fitness" as well as "superior ability or capacity to meet particular requirements of contract and needs of City Department and those it serves."

 Mark McDonald, press secretary for Mayor Michael A. Nutter, said that other bidders have seven days to object to awarding the contract. If no objections are lodged, the contract would go into effect March 1. McDonald said he did not have any other details about the contract.

Michael Resnick, Nutter's director of public safety, did not respond to a request for comment on Friday.

In November, O'Brien introduced legislation to require the appointment of a quality-control auditor to ensure the legal representation in the Office of Conflict Counsel was living up to American Bar Association standards and a detailed audit of the allocation of city taxpayers' dollars to the law firm. O'Brien also introduced a bill to ask Philadelphia voters to approve a change to the Philadelphia Home Rule Charter (once approved by City Council). 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.