Contract System May Put Lawyers at Odds With Clients

Robert Bruni doesn’t have time for anything fancy.

In 90 minutes this November morning, the stern-looking young attorney must advise about 30 defendants at El Cajon Municipal Court on whether to keep fighting the charges against them or accept the plea bargains that will label them criminals.

The clients did not pick Bruni to be their lawyer. Many have never seen him before. As they nervously crowd around him in the lobby outside Municipal Judge Richard Bein’s courtroom, he does not give his name.

Instead, he introduces himself as an attorney in the firm appointed to represent them, gives a brief explanation of the day’s proceedings and calls the defendants one by one behind an orange partition to review the proffered deals.

The hallway bustles with activity. But a growing cadre of critics, including national legal authorities and many judges and lawyers in San Diego County, say the apparent efficiency in El Cajon and the county’s other courthouses is a symptom of a legal system neglecting justice in a headlong rush to judgment.

Rather than operate a public defender’s office, as do 43 of the nation’s 50 largest counties, San Diego County contracts with individual attorneys and law firms to provide defense for “indigents”--the 30,000 people a year charged with crimes as serious as murder who are unable to afford private lawyers.

In an era of “contracting out” public services, the county’s $8 million in legal contracts is the largest contract defense system in the United States, according to the National Legal Aid & Defender Assn.

Bruni is part of that contract system because he works for the Milloy Group, a six-member law firm headed by William Milloy and his partners. The group contracts with the county--at $62.50 per case--to represent the 3,000 or so people each year who are charged with misdemeanors in East County but judged unable to afford a private attorney.

Though the vast majority will be found guilty, almost none of the group’s clients--accused of drunken driving or violating fish and game regulations, of petty theft or disturbing the peace--will take their cases to trial.

Last year, according to court records, the Milloy Group conducted just 12 jury trials.

Milloy partner J. Parkeson Miller says every client gets individual attention, and that every guilty plea is a good bet, weighed against the risks of trial. Others active in the contract defense system insist that its lawyers are dedicated to their clients’ needs.

Yet the 7-year-old system has been widely condemned--by the American Bar Assn., the State Bar of California and by many who see it in action.

“It’s made our county a national disgrace in the delivery of defense services to the poor,” said John Cleary, the former director of the public defender program in San Diego’s federal courts.

The contract system was started in 1978 to cap the spiraling costs of defense under an old system in which judges appointed lawyers on a case-by-case basis. But with the county’s swift growth and changes in criminal law, the indigent defense budget has climbed 125% anyway since the advent of contracting defense services.

And, the critics allege, the quality of representation provided for low-income defendants has declined--especially in the less serious cases that involve the largest numbers of defendants, and especially in the last three years, since the system was revised to give contracts, in many cases, to the lawyers making the lowest bids.

“The bottom line is that the system we have right now is not working, and it has to be replaced very, very soon,” said Frederic Link, presiding judge of the San Diego Municipal Court. “It doesn’t produce the minimum amount of representation I think is required in a criminal defense attorney.”

The growing costs and the criticisms have spurred a rethinking of the county’s approach to indigent defense.

Over the last 18 months, the county has experimented with an in-house public defender, hiring 21 attorneys to handle about 70% of the most serious and costly felony cases.

Melvin Nitz, director of the county’s Office of Defender Services, while defending the contract lawyers’ performance, has said repeatedly he favors junking the contracts in favor of a full-fledged public defender program that would put defense lawyers on a more equal footing with prosecutors.

That option and others are under study, meanwhile, by a blue-ribbon commission of lawyers and civic leaders. Formed by the San Diego Law Center at the University of San Diego Law School and partly financed by the county, the commission is expected to report its findings to the Board of Supervisors by early next year.

The commission’s study follows a succession of attacks on the contract system’s performance:

- In November, 1984, a committee of the State Bar of California, concluding a six-year study of indigent defense in the state, said the quality of legal representation for the poor in San Diego County had “deteriorated and plummeted since the institution of the contract-bid system.”

- In April, The American Lawyer, a national legal magazine, published a scathing profile of the contract system, focusing on the Milloy Group’s performance in El Cajon. “San Diego Farms Out Public Defender Work to the Lowest Bidder--And Gets What It Pays For,” read the headline.

- In July, the ABA’s House of Delegates, its policy making arm, adopted a report on indigent defense that said the San Diego system made “one of the most compelling cases against low-bid contracts.”

- In October, for the first time in the contract system’s history, the county canceled a law firm’s contract. Judges and other lawyers had complained that a group headed by attorney Robert Bennett mismanaged its $430,000 pact to defend indigents in San Diego County Traffic Court and sometimes provided defense that fell short of minimum standards of competence.

The system may face its most direct test next month, when a Superior Court trial is scheduled in a lawsuit challenging the constitutionality of the county’s low-bid contracts.

Defenders Inc., the nonprofit group whose salaried lawyers operate like a quasi-public defender office, filed the suit 2 1/2 years ago. It contends that the El Cajon contract pits the financial interests of the Milloy Group against the legal interests of its clients.

The county and the Milloy Group deny the allegations.

Contract defense, unknown to legal researchers as recently as a dozen years ago, has swept the country since the late 1970s, becoming the fundamental system for defending indigents in hundreds of mostly smaller counties and a supplement to public defender systems in many urban areas, including Los Angeles.

San Diego County supervisors, alarmed by skyrocketing defense costs, embraced a consultant’s recommendations in 1977 for grafting a contract system onto the county’s “hybrid” defense program--a combination of court appointment of private lawyers and heavy reliance on Defenders Inc.

Over the following four years, contracts, negotiated by the new Office of Defender Services (ODS), came to dominate indigent defense.

Fees, already low by national standards, rose little during the double-digit inflation that paralleled the first years of contracting. By 1981, felony lawyers briefly went on strike against the county, and Defenders Inc. needed a bailout from the San Diego County Bar Assn. to stay in business.

Nonetheless, the county’s overall defense costs continued to escalate. Crime grew apace with San Diego County’s expansion, court decisions made defense more complex while raising the minimum performance expected of defense lawyers, and judges overrode the county’s fee schedules when they believed lawyers were underpaid.

The result was cost overruns. ODS outspent its budget by $1.3 million in 1979-1980, and by $1.7 million in 1980-1981.

The Board of Supervisors, led by then-Supervisors Roger Hedgecock and Jim Bates, railed at the defense system, riding on then-ODS Director Louis Katz to reverse a trend, in Hedgecock’s words, of providing “a Cadillac defense in every case.”

A 1981 consultants’ study debunked the suggestion that the county was going overboard, calling instead for improvements in the contracts’ quality. But supervisors ignored most of the recommendations.

Instead, Nitz, the former Fresno County public defender hired in 1981 to replace Katz, tried to harness runaway costs by packaging more cases into larger contracts and putting the work out for competitive bids.

The competition has kept pay for less serious felonies, such as robberies, at $325 to $350 per case. For more serious felonies, including violent crimes, contracts pay $45 to $65 per hour. Misdemeanor and traffic court contracts are let in bulk, with the bidders agreeing to handle all or part of a court’s indigent cases at the bid price.

Now, in sponsoring the blue-ribbon commission’s study, supervisors say they hope to learn if the county has lost sight of its responsibilities in the scramble to limit spending.

“Nobody’s a criminal until he’s convicted,” Supervisor George Bailey said. “If he’s convicted because we didn’t give him a proper defense, we’re the criminal.”

The criticisms of the defense system are a thickly matted web woven of ethical, financial and quality concerns.

In interviews by The Times with more than 30 lawyers and judges in San Diego County, the local contract system was tagged with virtually every failing that studies by the ABA, the National Legal Aid & Defender Assn. and the State Bar of California found endemic to contracting for defense services.

“The flaws in this system are the size of giant chasms,” said San Diego defense lawyer Gerald Blank, chairman of the State Bar committee that studied contracts statewide and deemed them an “ill-conceived” system that can produce “wholesale abuse of civil and constitutional rights.”

Critics say San Diego’s system:

- Fosters minimally competent--and occasionally inadequate--defense of indigents by giving the job to the lowest bidder, without building performance standards into the pacts.

“The system requires assembly-line justice, and that is not what the system, what this society, is supposed to be about,” said Daniel Weber, president of Earl B. Gilliam Bar Assn., a black lawyers’ group that favors adoption of a public defender program in San Diego County.

Presiding Judge Victor Ramirez of the Vista Municipal Court testified at a blue-ribbon commission hearing that North County felony contract lawyers were “fair to below average” defenders.

A San Diego Superior Court judge said some felony lawyers in his downtown courtroom looked like “chickens with their heads cut off.”

Cleary described some contract lawyers as “walking violations of the Sixth Amendment,” which guarantees counsel to criminal defendants.

- Places lawyers at odds with their clients’ best interests.

Some of the contracts, such as the Milloy Group’s, don’t pay extra if the attorney hires an investigator to bolster the defendant’s case or if the case is taken to trial; instead, those costs must be absorbed from the fixed rate the lawyers are paid for each case. In court, Defenders Inc. has argued such provisions “go to the heart of the accused’s right to effective, conflict-free counsel.”

El Cajon Municipal Judge Victor Bianchini says the criticism is valid. “The less you do, the more you make,” he said.

When Defenders Inc. filed suit in 1983, Bianchini issued a restraining order blocking the onset of the Milloy Group’s contract. A Superior Court judge quickly overturned the ruling and the 4th District Court of Appeal also refused to stop the contract. But the Appeal Court agreed that contracting was rife with possibilities for conflict and ordered the case heard as swiftly as possible.

- Lacks the quality control needed in a far-flung system.

“There’s a lot of concern that ODS is not monitoring the groups and is not responsive to complaints,” said San Diego Municipal Judge E. Mac Amos.

When ODS took no action against the Bennett group in Traffic Court after more than two years of complaints, a bar-sponsored committee that Amos chairs stepped into the breach, conducted an investigation and issued the recommendation that prompted the group’s firing.

Other judges complain about ODS management. Ramirez, for instance, said he had met with Nitz only once in the last two years and had never been asked for feedback on the system.

- Produces bad results for indigent defendants.

“There are a lot of people pleading guilty who are not making knowing and intelligent pleas because of the inadequacy of their representation,” insists Alex Landon, executive director of Defenders Inc.

Blank said he has won new trials for three defendants and a resentencing for another because their contract defenders were incompetent. (He declined to name the attorneys or defendants because of the embarrassment it might cause the lawyers.)

In one kidnaping trial, Blank said, the defense lawyer failed to call an eyewitness who had told police the defendant was not the kidnaper. The defendant had a strong alibi, he said, but the lawyer failed to ask the judge to instruct jurors on the law regarding alibis.

“It was a hair-raising kind of situation,” Blank said.

And why did this lawyer, and the other defense attorneys, fail to do their jobs? Because of the economic constraints of the contract system, he insists.

“They were attorneys who had a financial disincentive to do all they should,” Blank said.

Mel Nitz can rile opponents with his veneer of grandfatherly calm. In an interview last month, however, he grew more and more incensed as he responded to the indictment against the contract system he has administered for four years.

“I have a feeling there’s somebody on the outside trying to destroy the system, to create so much confusion, so much bad publicity, that the board (of supervisors) will do some dramatic thing,” he said.

“All these people who are hollering and yelling--they’re hollering and yelling about money,” Nitz said. “I wonder how dedicated these people are to this kind of work.”

Nitz leaves no doubt that he would prefer San Diego County to replace the contract system with a full-fledged public defender office. Through efficiencies of scale, a public defender would save the county $1 million to $1.5 million per year, he said, while tightening quality controls and making more resources available for indigents’ defense.

But Nitz says the critics who view the contract system as unjust to the core are utterly off base. The contracts, he insists, “have worked out pretty well.”

Many contract lawyers agree. The competition holds down costs while keeping the private bar active in criminal defense. Dedicated lawyers who know how to manage a busy caseload can and do provide quality defense, they say.

“It’s the best of both worlds,” said Pierre Pfeffer, a longtime contract lawyer who has qualms about the county’s bidding system but believes adequately financed contracts work well. “You’re not beholden to the county, but you have this tremendous resource--a large staff of trial attorneys, intimately familiar with the system, who participate in the system from the beginning to the end point.”

Nitz acknowledges that monitoring is hampered by contract language that keeps the county at arms length from the lawyers. But screening panels and ODS make sure contractors meet minimum quality standards, he said. And Nitz says he will not recommend contracting with the low bidder if he does not believe the job can be done for the price offered.

Like many of the contract lawyers, Nitz discounts the supposed conflicts between attorney and client interests that are the heart of Defenders Inc.’s court challenge to the system.

“I think the attorney handling the case, irrespective of the money, is going to handle it properly and diligently and aggressively and give the client everything he has,” Nitz said.

In El Cajon, J. Parkeson Miller insists that has been the Milloy Group’s approach, even though the lawyers so “vastly underestimated” the costs of meeting their contract’s provisions that the pact has produced “virtually no profits.”

The fact that nearly all the group’s cases end with a guilty plea is no measure of the job the lawyers have done, Miller said.

“Our job is to do the best job we can for a defendant,” he said. “If in our viewpoint, the plea bargain result makes more sense than a potential trial and a conviction, 99% of the time I’d say we’d strike the plea bargain.”

Lawyers adopt the same stance whether they’re on a county contract or not, Miller contended. “If you use the number of trials as your criteria for a successful defense effort, then most of the attorneys in this city fail, because a very small percentage of cases go to trial,” he said.

Blank, the State Bar committee chairman, wonders if that explanation would satisfy an indigent defendant who understood how San Diego County’s contracts work.

“How would you like to be a poor person charged with the offense of stealing a car?” he asked.

“You claim it’s a case of mistaken identity. And you know your lawyer has a contract where he won’t be paid more to go to trial, where he won’t get paid to hire an investigator. . . . And you also know that the way the lawyer makes the most money is if he pleads you out fast.”

Blank repeated his question. “How would you feel?”