Gideon Alert: Poor performance costs Washington defender $2.9 million; inexperience, high caseloads, and "trying one's best" are no excuse

BY David Carroll on Friday, May 14, 2010 at 11:05 AM

On May 14, 2010, the Wenatchee World reported that a Chelan County public defender has agreed to pay a $2.9 million dollar settlement to a former client for admittedly providing ineffective assistance of counsel that led to the client’s wrongful imprisonment in a sex abuse scandal.  The state of Washington requires its counties to shoulder the vast majority of funding and administration of the right to counsel.  Chelan County (population 72,372) does not have access to significant resources and chose to employ flat-fee contracting in which a law firm was expected to provide representation in an unlimited number of cases for a single lump sum.  Over two-thirds of Washington counties employ a similar model.  Experts retained by the former client in the civil lawsuit noted that the public defender attorney was just out of law school, unqualified, carried too many cases, had no training, and was left unsupervised to learn as he goes.  

Seventeen of the 27 people convicted in the sex-abuse investigation were represented by private attorneys and in every one of those cases the charges were thrown out or overturned on appeal -- only defendants represented by the flat-fee contract defenders were convicted.  The attorney’s excuse was that he tried his best given the circumstances.  But justice demands more.  As public defenders across the country struggle with high caseloads, they should not fool themselves into thinking that providing a modicum of justice is better for a client than having outside counsel appointed.  Such thinking can prove costly -- both for the defendant’s liberty and the attorney’s financial security.  The client in this case was twice assaulted while in prison and put in solitary confinement for six months for his own protection.

Flat fee contracts are at the root of much of the caseload crisis in the rural America.  Flat fee contracting agreements are oriented solely toward cost reduction, in derogation of ethical and constitutional mandates governing the scope and quality of representation, and are prohibited under the ABA Ten Principles of a Public Defense Delivery System.   Fixed annual contract rates for an unlimited number of cases create a conflict of interest between attorney and client, in violation of well-settled ethical proscriptions compiled in Guideline 111-13 in Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services, written by the National Legal Aid & Defender Association and adopted by the American Bar Association in 1985. 

Washington counties have struggled with this issue before.  Grant County (pop. 88,098) also contracted with a single public defender to administer the indigent defense caseload for a predetermined dollar amount — regardless of the number of cases opened within that year — as a means of controlling rising criminal justice costs.  The public defender administrator retained the authority to farm out any portion of the work for whatever price he could negotiate.  As a spotlight series conducted by the Seattle Times described it, “[t]he more cases [the administrator] kept for himself, the fewer he had to dole out.  The fewer he doled out, the more money he kept.”  In one year, the administrator made $225,000 — though to do so he had to handle 415 felony cases himself, or more than 175% above the prescribed number of felony cases any one attorney should ethically handle in a given year according to all nationally recognized caseload standards.  The Grant County indigent defense provider spent on average four hours on each case — including those cases that went to trial. 

Grant County’s problems were addressed as a result of an American Civil Liberties Union (ACLU) of Washington class action lawsuit against this system, alleging that the overwhelming caseload compelled the attorney to take shortcuts; shortcuts like failing to investigate cases, failing to file credible motions, and failing to meet with the clientele.  The case was settled after Superior Court Judge Michael Cooper found that indigent defendants in Grant County have a “well-grounded fear” of not receiving effective legal counsel.  Under the terms of the settlement, the county had to hire sufficient staff to meet national caseload guidelines, provide effective supervision and training, and hire a magistrate to ensure standards are met.  Moreover, a client who spent months in jail due to the deficient work of his Grant County public defender was awarded $3 million, holding his public defender personally responsible for the inadequate service.  The public defender was also disbarred. Grant County settled with this one client for $250,000.

If there can a good note to the stories reported here, the Washington Supreme Court in January 2009 banned indigent defense providers from entering into flat fee contracts by court rule, because of the inherent conflict of interest it produces between a client’s right to adequate counsel and the attorney’s personal financial interest.  Other state Supreme Courts should follow suit, including but not limited to those Supreme Courts in states where flat fee contracting is most prevalent: California, Nevada, Idaho, Michigan, Utah, New York, and Mississippi.