Gideon Alert: Flat fee contracting creates separate but unequal juvenile justice in Los Angeles

BY David Carroll on Monday, June 14, 2010 at 11:37 AM

On June 14, 2010, the Los Angeles Times published a spotlight report on the unequal treatment juveniles receive when represented by a private conflict attorney working under a flat fee contract of $345 per case.  The story highlights the false assumption many state and county administrators work under when justifying flat fee contracts: "You have experienced defense attorneys who represent juveniles for a living, not as a stepping stone, not as a beginning of their career.  Paying them more isn't going to enhance their ability to represent these juveniles, or paying them hourly versus a flat fee," said Anna Pembedjian, justice deputy to L.A. County Supervisor Michael D. Antonovich.  She added, "We have to make prudent decisions especially in this fiscal climate."  What the deputy county supervisor fails to mention is that Los Angeles County moved to this system in 1993 -- so the unequal treatment described in the story was allowed to continue even during the economic boom years of the late 1990’s. 

Her theory that attorneys will maintain zealous representation no matter what they are paid is easily refuted.  For example, the federal courts pay an appointed attorney rate of $125 per hour for non-capital cases. Applying that rate shows that Los Angeles’ attorneys working at the flat fee rate of $345 per case would only devote approximately two hours and forty-five minutes of paid work to a case; any time spent on a case beyond that would essentially be done for free.  When compensation does not adequately approximate the workload, a significant number of qualified attorneys simply stop taking public cases.  

Some attorneys will continue to try to provide effective representation no matter what, even if they are, in essence, working for free.  But experiences in Michigan, Louisiana, and upstate New York reveal a pattern in which attorneys who take cases despite the compensation often try to get assigned to as many cases as possible – and dispose of them as quickly as possible – in order to make a living.  Or, as Gary Farwell, panel supervisor for a juvenile court in South Los Angeles notes, "You make up for the cases that require a lot of time with those that don't require much time, and there are a lot of them."  For a Los Angeles County assigned counsel attorney to make as much money as a private attorney being paid $125 per hour under federal rates, he would need to open and dispose of 670 juvenile delinquency cases in a year, or more than three times the workload allowable under national standards

Conversely, under national standards the average juvenile delinquency case requires eight hours of work.  At $345 per case, this equates to about $43.13 an hour.  For the person on the street, that may seem like a lot of money.  But private attorneys must pay for all overhead (office space, insurance, utilities, secretarial assistance, paper, pens, etc.) out of that sum.  To give some perspective, case law in Alabama – a state with a significantly lower cost of living rate than Los Angeles -- requires the state to pay a presumptive rate of $30 for overhead in addition to an hourly wage.

NLADA researchers are often asked in the field by county administrators what is the absolute minimum a county can pay a private attorney to take public cases and not impact the adequacy of the representation?  The answer is that the jurisdiction must ensure that standards related to independence, supervision, training and workload are adequately implemented and then determine the cost to maintain such a system effectively.  If a county does not have an independent entity monitoring attorney performance through in-court observations, case file reviews, and interviews, there will be sub-par representation and/or inefficient use of taxpayer money no matter what the compensation.  However, there is one thing that can be said unequivocally: flat fee contracting is banned under all national standards for a reason.  Flat fees create a conflict of interest between a lawyer’s ethical duty to competently defend each and every client and her financial self-interest to invest the least amount of time possible in each case.