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In an effort to save money, Contra Costa County Superior Court is about to hand over its dependency contract to a nonprofit with no dependency experience. After a hard-fought battle with the current providers � the public defender’s office and Contra Costa County Bar Association’s conflict panel � the Legal Aid Society of Santa Clara County is in line to get the contract by promising to save the court $1.5 million. As the losing bidders bemoan the court’s expected decision, they question the nonprofit’s reputation and financial record. A recent Santa Clara County audit (.pdf) of the indigent defense system � which LAS maintains is wrought with errors � says LAS billed for cases for which there were no court records, and billed for costs not specified in the contract. Since 1997, LAS has represented criminal defendants in cases where the public defender’s office has a conflict. But the audit included a survey in which a group of judges strongly criticized the quality of the society’s representation. LAS gets mixed reviews from former and current attorneys. Some say their experience with the group has been nothing but professional. But other former panelists � including one suing LAS for denying payment � tell stories of financial ineptitude. The tug and pull of changing legal providers in dependency representation (.pdf) in order to save money is likely to repeat in other counties, due to pressure from the state to keep rising costs in line. The state’s Administrative Office of the Courts takes no position on whether government, nonprofit or for-profit organizations should provide these legal services. But based on what is known about LAS’ bid, as well as the negative auditors’ report, the Contra Costa County dependency attorneys are convinced what this nonprofit is offering isn’t up to par. “These are abused and neglected children. The system ignores them, treats them as an afterthought,” said David Briggs, director of the bar association’s conflict panel. “One of the main forces advocating for these kids were the attorneys in our program. They’ve been told that the court’s not willing to pay for them to do a good job.” BACKGROUND CHECK LAS is headed by Antonio Estremera, but most lawyers deal with Stephen Avilla, LAS’ conflicts coordinating attorney Avilla, who assigns the cases and doles out additional funding, is known as a formidable defense lawyer who in 1994 got an acquittal for the man accused of murdering “Hogan’s Heroes” actor Bob Crane. “He’s a damn good lawyer,” said Milford Reynolds, a Sunnyvale solo who worked on the LAS panel from 1998 to 2005. “He’s just a crappy administrator.” Avilla, who said he only agrees with the first part of Reynolds’ statement, points out that his group has assigned lawyers in 28,000 cases since 1997, and not once has one been removed for incompetence. He also notes that LAS lawyers have been assigned to 25 capital cases since 1997, and not one of them has resulted in a death verdict. But Reynolds and other attorneys’ assessments are reflected in the county’s audit, released in January, which found LAS charged the county about $560,000 more than the amount budgeted for indigent defense in the last fiscal year. The $560,000 overage cited in the audit is misleading, Avilla says, because LAS took on more cases than had been specified in the contract. The audit also found LAS had, despite an indemnity provision, billed the county for $211,403 in legal defense fees for a suit filed against it by a former panel attorney. Los Gatos attorney James McNair Thompson sued when LAS cut off payment for representing an indigent defendant in a murder case in the late 1990s. A trial court awarded Thompson $47,323 for his breach of contract claim against the county and Legal Aid, and in November, the Sixth District Court of Appeal allowed Thompson to pursue a civil rights claim and award of prejudgment interest. Thompson is now awaiting a hearing. The county paid the defense fees, which were presented as a miscellaneous cost. But the auditors now recommend that County Counsel Ann Ravel determine whether LAS should instead foot the bill. The auditors also said they found dozens of bills for cases that didn’t match court docket numbers, and in 14 cases, couldn’t be matched up with any defendant. LAS billed about $38,000 for those 14 cases. But it may just be a glitch. San Francisco attorney Peter Furst, who works as a conflict attorney for LAS, pointed to a docket number for one of his clients, Armand Tiano, which he said wasn’t preceded by the letter code the auditors were apparently looking for. “If this case didn’t exist,” Furst said, “then somebody has to get Armand out of jail.” Auditors recommend that the county reduce its contract � $5.7 million last year � by at least $1.9 million and move some of those services to the alternate defender’s office. By following the recommendations, the auditors say, the county could save $819,000 annually. County officials renewed its contract with LAS in December for two years � after some had been privy to the audit’s findings � though the Board of Supervisors can still cut the contract out of the county’s budget. The group’s most recent publicly available tax forms (.pdf) show the group had a $6.5 million overall budget in 2004; the group’s contract with the county was worth $5.18 million. The nonprofit’s Contra Costa County dependency contract is not yet final, but based on the court’s statement that it will be $1.5 million less than the current dependency deal, LAS will be paid about $3.7 million. For that, they’ll be assigned to represent indigent parents and children in dependency proceedings, which typically involve child abuse or neglect. HEAT FROM ABOVE Given the turnover in dependency representation in counties beyond Contra Costa, perhaps it was only a matter of time before a cheaper legal provider made a pitch. Sacramento-based attorney Dale Wilson runs a for-profit firm which represents parents in dependency cases in Sacramento and Stanislaus counties. He put in a partial bid for Contra Costa County dependency conflict cases. Wilson said he didn’t bother putting in a bid for the entire contract because he didn’t think the court would opt for such a “huge change” by giving up its contract with Public Defender David Coleman’s office. “I do think it’s a huge undertaking for a new provider to come in and take over all of the dependency legal representation,” he added. San Mateo attorney Kevin Thurber, who conducts annual dependency training for the California Public Defenders Association, says dependency representation has been shifting from government attorneys to groups like LAS. In the current system, the AOC reimburses the courts for the cost of dependency representation, but reimbursement is not guaranteed. It varies from year to year, said Philip Crawford, a former deputy court executive officer for court-appointed counsel in Contra Costa County Superior Court. Crawford works as a consultant for the court coordinating the RFPs. Courts in counties that spend more on dependency representation compared to the statewide average risk having their reimbursements scaled back because the AOC is moving toward funding based on workload, he said. And for Contra Costa County, that’s a big problem. Statewide, the average cost per foster child is less than $1,000 a year, AOC program manager Leah Wilson said. In Contra Costa County, dependency representation cost the court about $3,174 per child, Crawford said. Dependency representation in Contra Costa County cost nearly twice what it did, per child, in Alameda County, according to AOC statistics. Crawford said the use of public defenders can drive up the cost, because they tend to earn more than contract lawyers. Statewide, Leah Wilson said, the cost of dependency representation has escalated in the last several years due to federal and state legislation requiring more representation and putting more responsibilities on the attorneys. In 2004, the AOC’s Office of Children, Families and the Courts launched a pilot program (.pdf) in 10 counties to improve the quality of representation in dependency cases and standardize the system. However, because implementing the pilot has actually increased the costs to the court system in most of those 10 counties, it is unclear whether the program will be expanded statewide. Leah Wilson said the AOC does not have the funds to implement the pilot in all counties. A JOB DONE CHEAP Contra Costa County court officials are expected to officially announce the new dependency provider within the next week or two. The jury is still out on whether cheaper legal providers equal poor quality representation, but the soon-to-be ousted Contra Costa attorneys point to a survey of seven judicial officers included in the Santa Clara audit. None of the seven agreed that LAS attorneys appeared to have adequate resources, such as investigators and paralegals. “The biggest problem I had with Legal Aid was [getting] additional funds for investigation,” Reynolds said, who pointed to a 2005 home invasion robbery case where the prosecution was using a drug deal-gone-wrong theory against his client. Before the start of the trial, Reynolds twice requested additional funds for an investigator to interview the prosecution’s witnesses. Reynolds says he didn’t hear from Avilla and ended up interviewing the witnesses himself. In the end, Reynolds said the prosecutors agreed to reduce the charge to grand theft. “Legal Aid hung me out to dry on this case � or at least my client,” Reynolds said. Reynolds’ accusations about not getting enough funds for investigations are not true, Avilla said. And Reynolds’ experience hasn’t been the same for other attorneys like Stuart Kirchick, who has been on the Santa Clara County conflict panel since 1989 and has worked under LAS since it took over in 1997. The survey cited in the audit, Kirchick said, is “ridiculous.” “Stephen Avilla gives us all the resources we ask for, as long as … it is reasonably related to providing a good defense for our clients,” he said. In the same survey, only one of the seven judges agreed that LAS attorneys demonstrated skill in oral and written advocacy, and only one agreed the attorneys were prepared in court. But Avilla discredits the survey, saying the audit failed to point out any examples of cases where LAS gave poor legal representation. Asked why LAS sought to tackle a new kind of work in a county 60 miles away, Avilla said the answer was simple: to fulfill its mission to represent the poor. “To us, it’s not Contra Costa County, it’s the East Bay,” he said. “It’s our constituency. It’s poor people that need help.”

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