In the wake of the Philadelphia city government’s assumption of responsibility for the payment of private attorneys appointed in criminal and family cases, the Nutter administration is seeking “creative and innovative” proposals on legal representation in cases in which the Defender Association of Philadelphia has a conflict.
Michael Resnick, an attorney who is the director of public safety, said the impetus for the RFP was that the city wants to have a more efficient model than the current one in which thousands of individual appointments are made every budget year.
Resnick said that if the conflict counsel was not provided on an individualized basis, that processing the payments would be less “overwhelming for staff.”
Another possibility would be if the city could hire someone to manage the payment process, Resnick said.
The city has never been in the business of paying court-appointed counsel before, and the city would like to “use interesting and novel and effective models,” Resnick said, at the same time that effective, quality representation is provided to defendants and that the model does not take too much time, effort or money for the city to administer and process payments.
“I’m not looking for a specific model and I’m not looking to take business away from anyone,” Resnick said. Instead, what he said he wanted was good representation for defendants and efficiency for taxpayers.
For example, from July 1, 2010, to June 30, 2011, there were 22,441 appointments in family court, criminal cases, Orphans’ Court, Municipal Court and Traffic Court made for attorneys.
Of those appointments, 15,659 were made in family court, 4,230 were made in criminal cases, 2,354 in Municipal Court, 136 in Traffic Court and 62 in Orphans’ Court.
There were 193 expert witnesses appointed, and 877 investigators were appointed for the same time period.
During the 2011-12 budget year, over $8.6 million was spent on court-appointed counsel.
Because there have not been any responses to the RFP yet, Resnick said the city does not yet have a sense of what this is going to cost, including depending upon whether the proposals would involve setting up an office with overheard or a direct-fee model.
Resnick also said he is aware of complaints made by members of the bar that the payments under the guaranteed fee system have been less than adequate, but he said the administration does not have plans to address the payment levels until after the Supreme Court finalizes its decision in a case challenging the constitutionality of pay for private attorneys appointed in capital death cases.
“We’ll have to see what the court says, what the Supreme Court says, and, once those things come, what the administration is going to do about it” in a case pending in front of the Supreme Court in which Philadelphia Court of Common Pleas Senior Judge Benjamin Lerner has been tasked to assess the adequacy of paying lead counsel in capital homicide cases $10,000 per case and mitigation counsel $7,500 per case.
Philadelphia Court of Common Pleas Judge John W. Herron, the chair of the Administrative Governing Board, said that the court is not going to take a position on what model is undertaken to provide conflict counsel.
After the Defender Association of Philadelphia withdrew from some Municipal Court courtrooms over its funding this summer and court-appointed counsel were hired instead, the administration revived an old idea of creating a conflict counsel’s office, Herron said.
Chief Defender Ellen Greenlee did not respond to a request for comment.
After “some brinkmanship negotiations back and forth,” Herron said, “we’re very pleased” that the city ultimately agreed that “it’s a government obligation, not a court obligation, to pay court-appointed counsel.”
Christopher Jay Evarts, a solo practitioner who takes court appointments in criminal and dependency work, said the RFP was vaguely written, that he questioned why it was posted during the holiday season, and that he thought “it’s the most underhanded thing I’ve ever seen from the city” after working in the court system for 20 years.
Many court-appointed counsel are going to fight changing the system, Evarts said.
Troy Wilson, an attorney who sits on the screening committee for court-appointed counsel, said that when he was involved with negotiating for higher pay for court-appointed counsel, the court leadership would often threaten to seek to create a second public defender for conflict cases.
While the rate of pay has stayed a problem, Wilson said that the legal representation has worked well and he is concerned that a new model might bring attorneys who do not know what they’re doing or that who the city hires would come down to politics.
While Wilson no longer takes court appointments, he said he is “concerned as a member of the bar association that it would materially impact the ability for hundreds of private attorneys to secure income in an alternative way and to help the criminal justice system.”
The RFP deadline is January 18, and the RFP also requires that providers must provide investigative, expert consultation, social services and other ancillary services that the providers deem “necessary in order to provide effective assistance of counsel and to protect the legal rights of their client.”