Onondaga County Needs a Public Defender.

By Mark David Blum, Esq.

I read with great sadness the story in this morning’s newspaper about a lawsuit filed by one attorney against the Onondaga County Assigned Counsel Program. It would be unfair and wrongheaded of me to voice an opinion in this dispute. I respect and love people on both sides of the issue and fully understand how they feel and their motivations.

What bothers me most is that this lawsuit exists at all.

Defense attorneys should not be feeding upon themselves. Cliques and politics should never come between an attorney and the service he or she provides a desperate and lonely client. A solution needs to be found. The ‘old ways’ no longer meet the needs of the community.

I propose now, as I have long advocated, that Onondaga County create an office of a Public Defender. This would be an public official on par with the District Attorney, with a budget and resources suitable to meet the defense needs of our County.

(If you need someone to put the project together and get it started, pick me. I am not doing much these days).

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.

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.

In my heart, I have no doubt Ms. Captor does her very best and runs an honorable organization. Likewise, I am sure Mr. Stanton’s feelings about politics and system failure are real.

A close analysis of attorneys’ complaints, my complaints, and the complaints of all those involved are best summed up by the practice of monitoring attorney representation by the hour and by the dime. Because our Assigned Counsel Program is predicated upon private contractor attorneys from the private sector, hours and expenses have become the flashpoint of conflict and dispute. No doubt 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, whose sole mission is to have a team of highly motivated lawyers who can focus on the unique needs and issues of criminal defense of the poor. There has to be a better way than just playing ‘spin-the-wheel’ justice with defendants at risk of getting a newly licensed attorney or a seasoned litigator based on the choice of the judge, where attorneys have no idea about issues each other is confronting, 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 more office politics than 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 a strong and honorable defense 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.