TX County Looks to Cut Indigent Defense Costs

BY Jon Mosher on Tuesday, January 18, 2011 at 1:05 PM

Like so many counties across the nation, Montgomery County, Texas, is looking to cut its expenses. According to the Conroe Courier, a member of the local judiciary suggests looking to indigent defense to cut costs.  The county currently operates under an assigned counsel model for adult criminal cases, with judges approving attorney vouchers. Juvenile cases are handled under contract with three private attorneys at a $175,000 flat annual fee.

"Edwards wants to reduce costs of indigent defense, which he told commissioners is about $4.5 million to $5 million annually.

'When I first started doing this, the representation of the poor was considered pro bono (voluntary and without payment),' he said. 'Now, it’s for money. We have created a cottage industry of lawyers who think they are entitled to this money.

'I think in the operations of court costs we’re pretty lean.'

There are several options Edwards would like to research, he said, including creating a public defender’s office or contracting out the indigent defense with a law firm, much as will now be done with defense for juvenile indigents."

Flat-fee contracting is oriented solely toward cost reduction, in derogation of ethical and constitutional mandates governing the scope and quality of representation. 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 the Guidelines for Negotiating and Awarding Governmental Contracts for Criminal Defense Services, adopted by the ABA in 1985. Guideline III-13, entitled "Conflicts of Interest," prohibits contracts under which payment of expenses for necessary services such as investigations, expert witnesses, and transcripts would "decrease the Contractor's income or compensation to attorneys or other personnel," because this situation creates a conflict of interest between attorney and client.

The same guideline addresses contracts which simply provide low compensation to attorneys, thereby giving attorneys an incentive to minimize the amount of work performed or "to waive a client's rights for reasons not related to the client's best interests." For these reasons, all national standards, as summarized in the eighth of the ABA’s Ten Principles, direct that: "Contracts 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.”