By Mark David Blum, Esq.
I propose now, as I have long advocated, that Onondaga County create an office of a Public Defender. Our community needs a public official on par with the District Attorney, with a budget and resources suitable to meet the indigent defense needs of our County. I will even step up for the job.
It is not just the indigent criminal defendants that are desperate for help. Everything from social security to security deposits, from civil cases to dealing with caseworkers, the market lacks a cohesive solid strategy for dealing with and providing full services to those most in need. There must be at least eight to ten different agencies, all residing in separate locations, each protecting a slice of the political pie, and none working together or sharing resources or information. In today’s legal world, too many of the indigent have problems and issues that span from one agency to another; leaving the client having to run duplicate missions and endure conflicting attorneys and approaches. While the people who work in these agencies are the most honorable of my profession, it is their insulation and isolation from each other that at times prevents the client from receiving the best of services. It is not from malice; it is from duplication.
When I first graduated law school and got my license to practice law, one of the first places I went, as does every unemployed and hungry attorney, was to the Onondaga County Assigned Counsel Program. It was touted as being a good source of quick revenue, a means to get work and work experience, and was better than not lawyering at all. A lawyer without a client is, after all, meaningless.
At the time I first checked it out, the Assigned Counsel Program was an administration and organization very much different than the one that exists today. Nevertheless, at the time, at the first of a handful of orientation meetings, I was told some information that caused me serious concern. Ultimately, these issues were the direct reason why I never participated in that program. Chief among my then objections were that I was told that in the year previous to that discussion, only three misdemeanor cases had gone to trial and that funding per misdemeanor case was limited to no more than $150.00. If an attorney were to exceed those amounts on any case, then that attorney’s hours would be heavily scrutinized and he would be called upon to explain the time and charges. To me that was an unconscionable restraint as sometimes a trial, or the threat thereof, or holding out, can result in a better outcome for a client. Limiting an attorney’s time and access to legal resources available, was to me a completely repugnant and unworkable situation.
I then began to hear other stories. Most attorneys complained that payment for work did not come until 9 months to a year AFTER the case was completed. More than one attorney told me that if even one itemized expense or hour was to be successfully challenged on review, not only could you be tossed from the program, but your license could be at risk on an allegation that you attempted to defraud.
Then there was the huge amount of malpractice insurance that was required. For a newly licensed and unemployed attorney, buying that product alone would have cost me a year’s rent. (Those damn doctors and their malpractice; driving up insurance premiums everywhere).
Many have been the time that attorneys have griped and fought about alleged politics in the program. Whether it be who is getting assignments, whose hours are being scrutinized, or the lack of fair compensation and timely payment; there has been a complete disconnect among those who serve the poor and the agency that supposedly funds them.
The Assigned Counsel Program is just one of the two or three local agencies that serve the poor in the criminal courts. With few exceptions, attorneys who serve the poor in civil cases do so pro bono and are not part of any organization.
The problem is best summed up by the current practice of monitoring attorney representation by the hour and by the dime. Functionality of indigent representation in this market is predicated upon private contractor attorneys from the private sector. Where reimbursement is available, hours and expenses have become the flashpoint of conflict and dispute. No distinction is made by quality of attorney, years of experience, difficulty of the case or client, or the impact of a particular case upon an attorney’s practice. Undoubtedly, this has had a direct impact on the level and quality of representation.
It is time to build an office, on par with that of the District Attorney and of the County Attorney, whose sole mission is to have a team of highly motivated lawyers who can focus on the unique needs and issues of criminal defense and civil litigation for the poor and underemployed. There has to be a better way than just playing ‘spin-the-wheel’ justice, where attorneys have no idea about issues each other is confronting, where clients have to run from agency to agency, and where the reporting and payment system creates hostility and conflict amongst the bar.
With a Public Defender, you will get politics. But those politics will be office politics; not animosity amongst the Bar. Attorneys in that office, like in the District Attorney’s Office, will have to deal with all the garbage that goes along with civil service positions. But, the quality of product served to the public will be enhanced significantly. Also, salaried employees will be far more productive and not watching their timesheets. Attorneys will work together, share information and experiences, and from that, will rise up a real program that provides strong and honorable legal services to the weakest of society.
Or, we can just continue muddling down the current path, niggling over pennies, and nipping at each other’s ankles while defendants are processed like cheese and attorneys waste judicial resources fighting over politics and dollars. Perhaps, that is the intent?