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Defending the poor, at what cost?

Updated: Tuesday, January 21 2014, 11:23 AM EST

by Sean Carroll

Monroe County, N.Y. -- Monroe County is now exploring a new system to provide legal services to the poor and indigent. The goal of saving taxpayers money appears to be a motivating factor but some local lawyers are already questioning the merits of changing the current system.

“They think they're spending too much money and they think that we're ripping them off,” said criminal defense lawyer James Hinman. “In essence what they're getting is a bargain and they don't want to recognize that.”

Background: Legal Services for the Poor

The Monroe County Public Defender’s Office is the primary entity in charge of defending those who cannot afford to hire a lawyer. But in about one case out of four, a legal conflict exists that requires the public defender to be recused from the case.

In those circumstances the Monroe County Conflict Defender’s Office handles the case or it is referred to a private practice lawyer through the Assigned Counsel Program. Lawyers who accept cases through this program can only bill county taxpayers $75-per-hour which is typically below the market rate many charge clients who personally retain their services.

The County’s RFP
(click here to view entire RFP)

On Friday, November 22nd Monroe County released a Request For Proposal (RFP) titled, “Indigent Legal Defense Services.” The proposal lays forth the cost impact of the current system in the following fashion:

"In 2012, the Public Defender’s Office handled approximately 24,000 cases, at an average cost of $329 per case. The budget of the Public Defender’s Office in 2012 was $7,895,851. That same year, the Conflict Defender’s Office and the ACP handled approximately 7,381 cases, at an average of $629 per case, totaling $4,643,011. The most expensive component is the Assigned Counsel Program. In 2012, ACP handled approximately 1,190 felony cases, 1,400 misdemeanor cases, 1,000 family court cases,and 15 appeals at a cost of $3,351,729. The average cost per case in the ACP was $929."

In an apparent effort to reduce that “cost per case” the county is seeking to select two respondents to this RFP that can handle the majority of these legal services. The respondents could be private law firms or even a not-for-profit that can provide these services.

The county’s RFP seems to indicate that one of the chosen entities will serve as the primary agency for criminal matters while the other serves as a secondary option should a legal conflict exist with the primary agency. In Family Court matters those roles would be reversed.

Expectations include having a staff to cover all local, county, and state courts throughout Monroe County, a staff to handle inquiries from clients or family members during normal business hours, and accessible office space in Downtown Rochester near bus routes and the Hall of Justice.

“The County is exploring opportunities to deliver these required legal services more efficiently and at a lower cost to taxpayers without compromising the quality of legal representation for those who need it,” said Monroe County spokesman Justin Feasel.

Questions and Doubts

Days after the RFP was released 13WHAM News heard from some criminal defense lawyers who were concerned about this apparent shift in practice. For months, if not years, such a shift had been rumored and many lawyers we contacted were curious to read the details.

Almost immediately the “cost per case” analogy was as laid forth in the RFP was disputed, even by some who expressed some support for the concept as a whole. Questions about how those figures were generated and whether they took into account the large number of cases that can be rapidly disposed of after one or two court appearances were raised. Additional questions surrounded the resources inherently available to the salaried staff of lawyers and investigators at the Public Defender’s Office, and whether employment benefits such as healthcare and pension costs were factored into the RFP’s “cost per case.”

More pressing concerns from some lawyers who have accepted cases through the Assigned Counsel Program focused on legal issues.

"The only area where there's a concentrated effort to reduce their costs is in the area where they're already getting a bargain; $75 an-hour is a third to a quarter of what anyone else would pay for representation,” said James Hinman who was assigned to represent Megan Merkel in a highly publicized trial that unfolded in 2013.

Merkel required Hinman’s assigned services because her co-defendant, Mark Scerbo, was already being represented by the Public Defender’s Office.

"Seven lawyers, I was told, turned that case down before I accepted it and that is because you knew that case up front was going to involve a lot of work and a lot of time and that is going to translate into a lot of money and it is going to translate into a much higher case-cost than other cases,” explained Hinman. “I don't take these cases to make money, I take these cases because I enjoy doing the work and I really like representing people who are charged with crimes and having the opportunity to make sure that the system works for them.”

"I've been doing this for 38-years now and I love the challenge," said Paul Vacca, another criminal defense lawyer who often accepts assigned cases. He is currently representing Ralph Strong Jr. who was charged with two murders and the shooting of a Rochester Police Officer this year.

"It's not about making money, when you think about the police, the police have unlimited resources as to finding witnesses, going out during trial and picking witnesses up, I can't do that,” said Vacca of the importance of such legal services. "It's the most important thing to provide competent, qualified legal representation where you're going to do anything you can to represent the interests of your client and I don't know if a law firm (will). A law firm is profit-motivated they're profit-oriented, they're going to be looking at the bottom line.”

Both Hinman and Vacca expressed concerns similar to those of other lawyers in this community who spoke to 13WHAM News. While some supported the idea of cutting costs to taxpayers, nearly every lawyer admitted that $75 per-hour was generally a “discount rate” for taxpayers and private citizens would be hard-pressed to find an attorney willing to represent them on a case for $629 or $929 no matter what the charge.

There have been recent reports and allegations that some lawyers are “over-billing” county taxpayers for these legal services.

“I think some guys under-charge, some guys over-charge a little bit, I think it balances out at the end of the day,” said Vacca who added that he refuses to bill the county for certain work he puts in on cases even though he would have every right to.

"Ethical dilemmas, reversal on appeal, conflict of interest,” Vacca said while rattling off other potential problems he sees with the newly proposed system laid out in the RFP. "They're trying to save money but they're giving up the experience (and) they haven't taken into consideration the conflict of interest; all of these cases have a conflict of interest.”

Vacca believes that two firms with a staff sufficient enough to handle hundreds of assigned cases each month will almost certainly encounter a large number of legal conflicts that will still require independent counsel to be assigned.

There are also questions about whether two entities with signed contracts to provide legal services for the poor will make financial decisions that trump legal considerations in order to ensure that contract produces a profit, or at least prevents a loss, to the firm awarded it.

"If they cut a lot of costs and the quality of representation declines you run a risk on appeal of having that conviction reversed because the lawyer was denied the access to the necessary funds,” said Hinman of another possible cost to taxpayers. “They're going to (have to) re-try the whole case and they're going to pay a lawyer to re-try that whole case and they're going to incur that whole expense so what have they saved? They haven't really saved.”

These questions and concerns could be satisfied and answered by respondents to this RFP. The deadline to respond is January 3, 2014 and the RFP states a desire to implement the new system in June 2014.

Defending the poor, at what cost?

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