April 2007

Letters

Bar News welcomes letters from readers. We do not run letters that have been printed in, or are pending before, other legal publications whose readership overlaps ours. Letters should be no more than 250 words in length, and e-mailed to letterstotheeditor@wsba.org or mailed to WSBA, Attn: Letters to the Editor, 1325 Fourth Ave., Ste. 600, Seattle, WA 98101-2539. We reserve the right to edit letters. Bar News does not print anonymous letters, or more than one submission per month from the same contributor.

Island County: The rest of the story

As long-time supporters of the proper funding of indigent criminal defense, we commend the Bar News for the February 2007 issue largely devoted to public defense.

We do wish to set the record straight as to one statement appearing in Robert C. Boruchowitz's article, "Right to Counsel Remains Threatened in Washington." On the second page of his article, Mr. Boruchowitz states: "One contract defender in Island County recently lost his job after he based his proposal for renewal of his contract on implementing the WSBA-endorsed case-load standards."

This statement is erroneous, or at least misleading, in several particulars. First, there is only one contract public defender in Island County. Secondly, the proposal submitted by the prior public defender (a law firm in Coupeville) was not for renewal of its contract. The former public defender's contract expired at the end of 2006. The Island County Board of Commissioners advertised a request for proposals seeking a public defender for the years 2007-09. The RFP indicated that a number of factors would be considered in determining the public defender to be selected. These factors included not only cost, but also ability, capacity, experience, quality of previous performance, compliance with statutes and rules relating to public defense, reputation, and responsiveness to the Public Defense Department's obligations and time limitations. Using these criteria, the board selected the current public defender, a skilled attorney with many years of experience in public defense.

Thirdly, and most importantly, Mr. Boruchowitz's statement seems to imply that the former public defender was not awarded the contract because his proposal included implementation of the WSBA-endorsed caseload standards. That is not true at all.

We take pride in the fact that since 1991, the public defender's contract with Island County has required compliance with WSBA-endorsed caseload standards, with the exception of misdemeanors. With regard to misdemeanors, Island County requires compliance with the ABA-endorsed standards.

All three proposals for the 2007-09 contract stated that they could, and would, comply with these standards. The current public defender will be required to hire sufficient attorneys to meet these standards. It should also be noted that the Island County Public Defense Department, at our request, conducted a compliance review of these standards in 2005. The prior public defender certified that it was meeting these standards under its contract.

Vickie I. Churchill, Superior Court Judge, Island and San Juan Counties
Alan R. Hancock, Superior Court Judge, Island and San Juan Counties

Public defense another way

Thank you for highlighting the problem of public defense in Washington State. Quite frankly, it was about time. Twenty years ago I left Seattle in part because there was too little support for criminal public defenders as far as solo practitioners were concerned, and moved to Tokyo for 15 years to represent corporate clients with better funding. I have now been back in New York for five years in semi-retirement, and have found that the situation here is quite different.

Twenty years ago, the only possible public defense role for private practitioners was on the conflicts panel for Juvenile Court at $22 an hour, with cases few and far between. The public defense role was mostly handled by Associated Counsel for the Accused —  not to say that they didn't do an excellent job of public defense, but their caseload was horrendous. Now there are several other contractors, but the situation is still ridiculously untenable from a financial and professional standpoint, at least as far as I can see from this distance.

It always did and still does make me angry to see certain liberal white-shoe Seattle law firms getting the Pro Bono Award at the annual bar association meetings and regularly congratulating themselves on their liberal efforts, as though the contributions they made really made a difference. I don't really mean to criticize any particular firm, since they did have good intentions and there were no other firms making even minimal efforts to help the poor. Putting overpaid inexperienced associates, albeit with a sincere commitment to helping the poor, in the trenches for a little slumming did very little good at all, yet gave the image and appearance of self-serving "noblesse oblige."

I think that perhaps Washington State can learn from New York, which has a very progressive and well-funded commitment to providing legal counsel to indigent persons, although it is still somewhat flawed and in need of tweaking.

The two main programs are the Law Guardian program and Assigned Counsel programs. The Law Guardian program provides free legal counsel to children, and pays the court-appointed Law Guardians $75 an hour plus mileage. The Assigned Counsel programs allow judges to appoint free lawyers for indigents in criminal cases, and most notably, in Family Court cases, pursuant to County Law 722 and 18-b. Assigned Counsel are paid $75 an hour for felonies and Family Court, and $60 an hour for misdemeanors, plus mileage, with a $4,000 cap, which can be exceeded with judicial approval in extraordinary circumstances. In NYC and larger cities, they have a system similar to Seattle, with public defender agencies and conflict panels, but Assigned Counsel there are also paid a reasonable fee of $75 an hour. Since the rate was raised from $25 an hour (which deterred many practitioners) two years ago, many rural counties are seriously looking at public defender programs due to the expense. It remains to be seen how that will all work out. By working in several counties, or in urban areas, Assigned Counsel can make enough to at least survive in a beginning law practice.

Of course, notable big differences for New York are the population, tax base, and an income tax. The state of social disintegration in New York is such that the legal system would come to a halt without Assigned Counsel — without Family Court assigned counsel probably the cases of homicidal fathers would increase, and without assigned counsel in general perhaps armed revolution might become imminent.

As is the case in general with indigent defense counsel, Assigned Counsel often feel that they are merely processing indigents through the legal system, and simply being co-opted and supporting the facade of a legal system for poor people. However, occasionally the rights of indigent defendants are protected and defended as would not be the case without the programs. At least there is an incentive for some assigned counsel to adequately research the legal options of indigent clients, and a support system through the private New York Defenders Association, which provides advice to members in complex cases.

One very beneficial result of the Assigned Counsel programs is that neophyte attorneys can learn to proficiently practice criminal and family law while being adequately compensated for their time. At least they can have a client base and minimal income from Assigned Counsel cases which can cover expenses, a big problem in Seattle which young solo private practitioners face on a daily basis without any support. The low-income referral panels of the Seattle-King County Bar Association were and probably still are totally inadequate to provide counsel for low-income families or survival wages for young attorneys.

I guess my point is that if you want a viable public defense program, you have to bite the bullet and make an actual commitment to funding a realistic program which actually involves private practitioners. Relying on pro bono and the defender associations alone will simply not cut it. The New York solution, although flawed, has many good points, and does provide financial incentives for young practitioners to defend poor people. Without such incentives, the poor will continue to get the short end of the stick, and young lawyers who wish to represent oppressed poor people will simply starve to death, get out of the practice of law, represent corporations, or move away.

Albert K. Gustafson, Cobleskill, New York

Just fine?

I just finished paying my bar dues, I paid late (three days past the deadline), and I paid the 20 percent late fee. I'm not making any excuses for paying late, and I fully expected to pay a late fee — I'm just wondering if anyone else thinks 20 percent is a bit much.

Kevin Curtin, Seattle