The Philadelphia Bar Association has asked the city of Philadelphia to delay accepting any proposals to represent indigent defendants and family-court litigants in criminal cases where the Defender Association of Philadelphia has a conflict.
The bar association also questioned a for-profit model because "it will create a tension pitting the needs of the individual indigent client with the desires and goals of the entity to make a profit," according to a letter written February 21 to Everett Gillison, deputy mayor for public safety and Mayor Michael A. Nutter’s chief of staff.
Kathleen Wilkinson, chancellor of the Philadelphia Bar Association, wrote in the letter that the "public funding that has been envisioned to support this work fails to adequately provide for sufficient legal representation of the needy and vulnerable clients whom the project seeks to serve."
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 sought "creative and innovative" proposals on legal representation in cases in which the Defender Association of Philadelphia has a conflict.
The deadline for bids was Friday.
Wilkinson wrote that the association does not think that high-quality legal representation can be provided assuming $10 million will be expended on conflict-counsel representation and that there would be 22,000 cases a year.
The association estimated that 36 lawyers, three social workers and three investigators would be required to cover representation for juvenile, misdemeanor, felony and appeal cases excluding homicide cases.
In terms of homicides, the Defender Association allocates nearly $2 million to defend 20 percent of the city’s homicide cases, Wilkinson said, and any proposal for representation for the other 80 percent of homicide cases "must come to grips with this very costly part of an urban criminal justice system."
Gillison and Wilkinson did not respond to messages left on their cellphones.
Daniel-Paul Alva, of Alva & Associates, has made one bid to create a for-profit legal organization to represent indigent defendants in criminal cases and juvenile cases as well as litigants in dependency cases.
According to Alva’s bid, Alva would be the manager of a new law firm and the firm would sign up the "best attorneys from the ‘old criminal appointment list’" in favor of a model that Alva’s proposal argues would be a vast improvement.
The proposed firm wants a three-year contract in which, if accepted by the city, it would be paid $9.5 million every year, a savings of $1 million for the city.
The $9.5 million would be divided between $3.5 million for approximately 40 staff attorneys, $350,000 to rent an office, $300,000 for computers and phones, $850,000 for support staff, $200,000 for office supplies, $100,000 for furniture, $400,000 for health, malpractice and unemployment insurance, $3.3 million to pay for dependency attorney subcontractors, $300,000 to subcontract additional conflicts involving three or more defendants, and $300,000 in miscellaneous expenses.
Lawyers would be paid $60,000 to $120,000.
Alva’s bid says that there are problems with quality, money, consistency, efficiency and accountability in the current court appointment system.
By signing up the "best attorneys" from the current court appointment list, "we will in one action eliminate one of the chief problems with which the city has been burdened — the overall ineffectiveness of the attorneys on the list," the proposal states. "The current appointment system is hopelessly flawed because the payment voucher system financially rewards court appointed attorneys who engage in inefficient and needless litigation such as the filing of frivolous motions and unwarranted jury demanding."
Alva said in an interview Friday that he agrees with the bar association that the amount of money that the city is willing to expend is not enough, and he also would like to hire more attorneys under his proposal.
Alva said he welcomes the bar association’s attention to the issue.
But Alva also said that, after advocating for increased pay for court-appointed attorneys and for improved representation for defendants through many roles with the Philadelphia Bar Association, that the system needs to change and "we can get a level of representation that would address each and every one of the bar association’s concerns."
"I’ve always been looking toward the goal of raising the bar for raising the level of representation," Alva added.
The proposal would improve the representation of clients because it would involve "frankly not keeping those who brought down the level of representation," would ensure that attorneys doing the work could earn a living wage, and the city would still save money because of the efficiencies of centralizing the operations in a for-profit, conflict firm, Alva argued.
One example of efficiencies would be that cases would not be kept in limbo because court-appointed counsel have to go from courtroom to courtroom because of multiple listings on the same day, Alva said.
The most important thing about the RFP is that "in the end whatever comes out of it, whether we get the contract or no one gets the contract, the city will finally be made aware of the need" in this area of legal representation, Alva said.
Alva’s proposal would set up a homicide unit with 10 attorneys, a felony trial unit with 14 attorneys, a misdemeanor trial and preliminary hearing unit with five attorneys, a juvenile unit with five attorneys, an appeals unit with five attorneys, and a dependency unit that would hire outside counsel where a conflict exists in dependency matters.
Alva also would provide in-house investigators and social services, including hiring a former senior administrator from the Department of Human Services to oversee a department of at least five social workers.
Scott DiClaudio, an attorney also involved in the RFP, said that the current appointment system also is for-profit, and that the United States is based on the idea that working for profit "spurs innovation as well as effectiveness."
DiClaudio was placed on one-year probation April 28, 2011, for failing to file an appellate brief on time, was informally admonished in 2003 for failure to file a statement of matters complained of on appeal, and was informally admonished in 2008 "for making false and misleading statements" to the Office of Disciplinary Counsel as well as failing to provide a written fee agreement to a client.
DiClaudio said he accepted responsibility for his mistakes in the past, but he said he is an experienced, skilled trial attorney who teaches at Temple University’s Beasley School of Law. He added that Alva’s proposal would provide efficiencies in an underfunded system.
The city has "absolutely underfunded it over the years, which has dissuaded better quality counsel from representing the indigent," DiClaudio said. "Which is why our idea is better because we can do it more efficiently."
For example, the proposed firm could work with court administration to consolidate its cases onto the same lists so that the firm’s lawyers would not have to be in courtrooms all over the place, DiClaudio said.
DiClaudio also said that he would concentrate on the business and administrative aspects of the firm, and said there is no anticipation that he would be going to court on a daily basis.
Michael Resnick, an attorney who is the director of public safety, said in an interview with The Legal in December that 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.