Attorneys gathered before Philadelphia City Council’s Committee on Law and Government on Monday to voice concerns over the quality of representation inherent in a for-profit legal organization that would represent indigent defendants in criminal cases where the Public Defender’s Office has a conflict.
The committee held a public hearing to discuss the viability and transparency of process in the city of Philadelphia’s request for proposals for a contract to create a private conflict-counsel organization.
Council members Dennis O’Brien, William K. Greenlee and Marian B. Tasco questioned lawyers opposed to the proposed model for conflict counsel and also quizzed Deputy Mayor for Public Safety Everett Gillison, who defended the idea.
“We’re looking at a model for delivery that will provide for the city,” Gillison said before the committee. “This matter, I believe, will be a good thing for the legal community and for poor people in general. I know what all the concerns are; a lot of them, I think, are completely unfounded.”
But O’Brien alleged that the entire RFP process lacked transparency and significant communication between Gillison and the council about the specifics of the project.
“I personally made phone calls to you and they were not returned,” O’Brien said to Gillison. “Emails were sent to you and they were not recognized. … I have yet to see that proposal.” O’Brien also questioned why the contract — which Gillison said has not yet been signed — would only be awarded for one year, as many criminal cases take more than a year to resolve. Gillison responded that the city charter prevented a multiyear contract.
Gillison maintained that the process was undertaken with transparency, but certain aspects of the RFP could not be discussed.
“We have tried to be as apparent and overly transparent as possible,” Gillison said. “This is a process that has been extremely inclusive and extremely collegial. What I’m trying to do is solve a pressing issue we have before us.”
O’Brien said that he had heard that Daniel-Paul Alva of Philadelphia-based Alva & Associates was a leading candidate and that the city would be signing a contract with Alva for $9.5 million.
But Gillison said that the city had not yet signed a contract and that any questions regarding it would be answered publicly after the selection for conflict counsel has been made.
Greenlee told Gillison he didn’t understand why he couldn’t answer the committee’s questions.
Referring to city contracts for professional services, Gillison said city officials do not publicly discuss contract negotiations.
“We do it in private,” he said. “That’s the way all contracts are done in this city. Once we have a contract I’ll be glad to talk to you about it.”
In response to questions regarding the quality of attorneys who would potentially serve in the conflict-counsel organization, Gillison said that most of the attorneys considered for the project possessed the requisite background and experience to do the job. He also noted that attorneys with disciplinary records would not be precluded from serving as conflict attorneys in the proposed organization.
Greenlee responded that he had not noticed a strong vote of confidence for the project from the legal community.
“I’m not hearing from anybody in support of this model,” Greenlee said. “As a layperson, that concerns me. I hear from lawyers and people in the system that raise serious concerns. … I think this ain’t working.”
Several attorneys testified to their skepticism at the proposed arrangement.
Jeffrey Lindy, managing partner of Lindy & Tauber and a Criminal Justice Act panel attorney, said, “The idea stinks, it’s wrongheaded, and it’s not going to work.”
Lindy said in his written testimony that due to the inadequate funding of the project, “attorneys in the [conflict counsel] firm will start cutting as many corners as possible to meet the bottom line, meaning to make the work worth doing.”
That, Lindy concluded, would negatively affect the quality of representation afforded to indigent defendants.
Chief Public Defender Ellen T. Greenlee of the Defender Association of Philadelphia also expressed concerns over the proposed for-profit system.
“The temptation will always exist to move cases along, to seek quick disposition, to save the expense of investigation, mitigation [and] hiring experts,” she said in written testimony.
Mark F. Houldin, counsel with the National Legal Aid and Defender Association, told the committee that fixed-fee contracts have formed the basis for lawsuits.
“Grant County, Wash., used a similar approach for public defense services in 2001,” Houldin said. “Grant County contracted with a private attorney that carried over 400 felony cases. An individual represented by this attorney sued based upon the failure to receive adequate representation and received a $3 million judgment against the public defender personally, who was disbarred, and settled against the county as well.”