Gideon Alert: Tennessee Supreme Court proposes rule change allowing flat-fee contracting

BY David Carroll on Tuesday, August 23, 2011 at 4:11 PM

“When it comes to balancing the scales of justice for the poor with the expense, there simply are no easy answers,” concludes the Knoxville News Sentinel on August 21, 2011 in part of an in-depth, three-part series. The Tennessee Supreme Court proposed a new rule change that attempts to find an easy answer to controlling indigent defense costs by allowing flat-fee contracting for right to counsel services, but the Court has neglected to provide institutional safeguards that would protect the adequacy of representation.  If implemented, this move will buck the trend of other state Supreme Courts, in places like Iowa and Washington, that have recently banned these types of low-bid contracts because they create a direct financial conflict of interest between the attorney and each client.  Tennessee’s high court is accepting public comment on their proposed rule until September 1, 2011.

The State of Tennessee provides the majority of the funding for the right to counsel, and trial-level services are provided through a statewide system of elected public defenders from the state’s 31 judicial districts.  Only District 30 (Shelby County - Memphis) is served by non-elected local public defender offices, which existed prior to creation of the state system in 1989.  The conflict system in Tennessee is a patchwork of attorneys generally overseen by either judges or court personnel with no supervision over quality beyond the judges being satisfied.  The proposed rule change is particularly aimed at the conflict system.
The proposed rule change could be viewed as an attempt – however misguided – to provide fiscal responsibility to the Tennessee citizenry, were it not for the state’s well-documented history of underfunding right to counsel services.  In January 2011, the Tennessee Administrative Office of Courts (AOC) released a report which states: 
Funding for the state’s public defender system comes from the legislature, and each office should be staffed by enough defenders to represent eligible indigent clients in all cases except those where such representation would create a conflict of interest with another client represented by the public defender. And although local governments are required to fund public defenders at a rate of three positions for every four district attorneys, the state itself does not fund these offices at that level. TCA § 16-2-518 mandates that any local funding for public defenders be at a rate of 75% of funding for the corresponding district attorney general’s office, it generally being agreed that approximately 75% of those being prosecuted by the district attorney will be indigent. However, at the state level, 228 full time assistant public defenders are funded, and 379 assistant district attorneys are funded, a ratio closer to three to five. 
This inadequate funding is not something new.  In 1999, the Tennessee comptroller’s office paid for three case-weighting studies to measure the need for increased judges, prosecutors, and public defenders.  Overseen by the National Center for State Courts, the defender portion was performed by The Spangenberg Group.  Their report found that collectively the Tennessee districts operated with fewer than 82% of the attorneys needed to adequately represent clients (250 rather than the recommended 306).  And, it should be noted, that the prosecutors case-weighting study showed them having 369 full-time equivalent prosecutors.  So the ratio of defense attorneys to prosecutors at that time was 68%, well below the target ratio of 75%.  Indeed, as far back as 1977, an NLADA report concluded: “[i]t is readily apparent that the present system bears little relationship to an adequately funded system.”
Several national organizations, including The Constitution Project, have written to dissuade the Tennessee Court from implementing the proposed rule change.  Their letter goes to great lengths to show, among other things, how the proposed rule creates conflicts of interest between attorneys and indigent clients; creating incentives for attorneys to invest minimal effort in these cases.  Their position comports with national standards of justice, most notably the eighth of the ABA Ten Principles of a Public Defense Delivery System that explains: “[c]ontracts with private attorneys for public defense services should never be let primarily on the basis of cost; they should specify performance requirements and the anticipated workload, provide an overflow or funding mechanism for excess, unusual or complex cases, and separately fund expert, investigative and other litigation support services.”
As a letter by David Carroll notes, the ABA Ten Principles do not prohibit the use of contracts entirely as a method of providing counsel to the indigent accused.   Contracts must, however: specify performance requirements and the anticipated workload; provide an overflow or funding mechanism for excess, unusual or complex cases; and separately fund expert, investigative and other litigation support services.  The proposed Tennessee rule change does not provide the first two of these three critical safeguards.
The proposed rule has a clear intent to cap the caseloads of contract conflict defenders through the provision stating that all contracts must be for a “specified number and type of cases.”  It is hard to evaluate what that means, however, without seeing what the specified number would be. There is, after all, a significant difference between capping serious felony cases at 50 cases per year versus 300 cases, even though both would fit the proposed language of an as yet undetermined “specified number.”
As Carroll goes on to note, one of the greatest concerns about the proposed Rule is the manner by which proposals for contracts shall be evaluated.  The emphasis that contracts “shall not be awarded solely on the basis of cost” is laudable.  The proposed Rule seems to suggest, however, that the Administrative Director will rely entirely on the attorneys’ statements in their proposals that they have “the ability . . . to exercise independent judgment on behalf of each client” and that they will “maintain workload rates that w[ill] allow [them] to devote adequate time to each client.”  This is inadequate to meet the national standards’ requirement that a contract specify performance requirements and the anticipated workload.  Self-regulation in the provision of constitutionally-mandated right to counsel services simply does not work. 
The inability of lawyers to self-regulate is one of the reasons why the very first of the ABA Ten Principles calls for the establishment of an independent right to counsel oversight board, whose members are appointed by diverse authorities so that no single official or political party has unchecked power over the indigent defense function.  Although the primary public defense system in Tennessee assures independence through publicly-elected district public defenders, there is no safeguard assuring independence of attorneys in the conflict system.  
The President of the Tennessee Bar Association (TBA), Danny Van Horn, announced on August 22, 2001 that TBA is preparing its own letter to the Court recommending a “pilot, guided by an advisory group of lawyers with experience in indigent representation, to examine the workability of contract representation in mental health committal and child support contempt matters only.”  Or, the Court could follow the lead of Iowa and Washington and ban flat-fee contracts altogether.
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