S.D. to Get $14-Million Legal Bill

TIMES STAFF WRITER

A new San Diego County agency designed to serve poor people eligible for a free lawyer was supposed to cost $2.3 million this year, its first year in business. Instead, it appears it will cost taxpayers $14 million.

And, unless the county finds a new way to manage the cost of providing lawyers for free, there's nothing it can do when the bill comes due--except pay it. The federal Constitution, which guarantees poor people the right to a free lawyer in certain circumstances, gives the county no choice.

The agency dispensing the millions of dollars--to some 350 lawyers--is known as the Department of Alternate Defense Counsel. Attorneys usually call it the "conflicts office," however, because the department's job is to coordinate the assignment of so-called "conflicts" cases.

Those cases are the thousands annually that the county public defender's office, another new county bureaucracy, cannot handle because of a conflict of interest. Most are cases involving multiple defendants or in, juvenile court, bunches of relatives, all of whom may be entitled to a free lawyer.

When the conflicts office was created 18 months ago, county budget managers estimated its annual cost to the Board of Supervisors at $2.3 million. Last June, five days before the office's July 1 start date, budget experts revised that projection to $8.9 million.

Two weeks ago, the planners told the supervisors that costs for fiscal year 1990, ending this June, were now computed to run $5.1 million over that $8.9 million budget, for a new total of $14 million.

The increase from $2.3 million to $14 million figures out to be a rise of 609%.

In part, the astonishing increase can be attributed to the uncertainty inherent in trying to predict just how many crimes will be committed in San Diego County and how many attorneys will be needed to defend the people charged with those crimes, say judges, lawyers and the county's budget managers.

For instance, no one really figured on the massive numbers of drug-related cases swamping courts at every level, those experts said.

That's only part of the reason for the increase. The major factor, it turns out, is that county officials missed counting an entire category of juvenile court cases in formulating the $2.3 million projection, budget managers said.

Remarkably, that category is projected to account for 70%--17,382 cases--of the 24,975 cases the conflicts office expects to handle in fiscal 1990, said Elliot G. Lande, director of the office.

"What happened is they just blew it," said Judith McConnell, the presiding judge of the Superior Court.

The $14 million expense is just one more bit of bad news for county budget experts, who announced recently the reason the county consistently is strapped financially is because it gets shortchanged tens of millions of dollars a year in state tax revenues. Of California's 58 counties, San Diego ranks 55th in the returned per-capita revenue, a recent report said.

However, Manuel Lopez, the county's director of financial management--who contended that the correct way to view the $14 million expense is as a $5.1 million budget overrun rather than an $11.7 million leap--said there will be enough money to pay the bill.

The cash will come from contingency reserves, which rely on departmental savings, fund balances from prior years and general revenues, Lopez said last week. "We've kind of had a lot of experience at handling these kinds of things, at getting the county to pay its bills and still come out in the black at the end of the year," he said.

Meanwhile, the 609% hike has fueled speculation among the San Diego judges and attorneys that the county will be forced to create another in-house legal services agency--as it did by creating the public defender's office--to rein in the cost of providing lawyers in conflicts cases.

"The reality is, it's pretty demonstrative on paper, (that private lawyers) can not do a case as cheaply as a county-paid employee," Lande said. "I don't think there's any sense in kidding ourselves."

When county supervisors decided in May, 1988, to create a Public Defender's Office, there was hope that the move would bring stability to San Diego's widely criticized indigent defense system--and save money.

For years, the county had used a patchwork system of services provided by a small staff of civil service lawyers and about 400 private attorneys. That system had been ridiculed in national circles for its inefficiency, costliness--it's generally more expensive to pay lawyers by the hour than a fixed salary--and spotty quality.

In 1986, a blue-ribbon commission of lawyers and judges recommended junking the existing hodgepodge system and replacing it with a nonprofit organization directed by an independent board of trustees. The supervisors approved the idea in concept and, at one time, intended to give a $40 million contract to Community Defenders Inc., the county's largest provider of indigent services for 20 years.

But in a controversial May, 1988, vote, the board decided to establish a traditional, county-managed Public Defender's Office, rather than contract the job out to Community Defenders.

The vote came after proponents of the public defender plan argued that it would be less costly--providing fiscal predictability through fixed lawyer salaries--than the Community Defenders option. It also followed the resignation of Community Defenders' executive director, Alex Landon, who stepped down amid allegations that he had been involved in a 1972 prison escape plot.

The Public Defender's Office began operating in July, 1988. In its first year, fiscal year 1989, when the patchwork of contract lawyers continued to shoulder the caseload, it expended $27 million, said Public Defender Frank Bardsley.

This fiscal year, relying on 182 in-house lawyers, the agency's budget is about $17 million, Bardsley said.

"We're very cost effective," Bardsley said. "And I think the county is legitimately happy and they're taking some pride in that. They made a wise decision."

Three months after the board brought the public defender's office to life, and with virtually no debate, it created the conflicts office, to handle those criminal defense and Juvenile Court cases in which the Public Defender's Office had a conflict of interest.

The new program was designed to replace a system managed jointly by the county's Office of Defender Services and the courts. The new system called for the hiring of a conflicts administrator to maintain a list of attorneys who would be appointed to cases on a rotating basis.

Lande, the attorney who was hired for the job, said last week that the system works just that way.

To qualify for work, lawyers must pass muster with a committee of attorneys recommended by the county bar association and selected by Municipal and Superior Court judges. Attorneys include criminal defense and juvenile court specialists.

The about 350 lawyers on the list earn amounts ranging from $25 to $75 an hour for their work, Lande said. With some exceptions, the fee structure has remained the same since 1982, he said.

The nine full-time staffers in the conflicts office, mostly accountants, audit every bill, Lande said. "I don't want anyone to think that this office serves as a rubber stamp," he said. "Because we do not rubber stamp. But the reality still is that criminal justice is expensive."

In August, 1988, when the county approved the conflicts office, David Janssen, the county's assistant chief administrative officer, told the Board of Supervisors the estimated annual cost of the new agency would be $2.3 million.

Janssen did warn the board that the estimated caseload was based on "very limited data." Since San Diego had never had a traditional Public Defender's Office, it was impossible to predict the number of conflicts cases, he said.

The $2.3 million estimate was based on a projection of 4,454 conflicts cases a year, Lopez said.

By last May, it was decided that it would take $2.4 million, not $2.3 million, to handle 4,454 cases, Lopez said. That month, it also was decided that $2.15 million allocated to the Public Defender's Office for conflicts cases, primarily criminal matters, belonged to the conflicts office.

That brought the conflicts budget to $4.55 million, Lopez said.

On June 26, as the county was making final budget adjustments, the conflicts office was given another $4.38 million, bringing its fiscal 1990 budget to $8.93 million, a figure currently in use, Lopez said.

Though the initial projection of 4,454 cases took into account juvenile delinquency cases, those in which a minor is charged with a crime, it did not provide for juvenile dependency cases, those in which the county is seeking custody of a child it contends has been abused or neglected.

The June 26 budget move was designed to handle thousands of juvenile dependency cases left over from prior years and, five days before the conflicts office opened for business, marked the first acknowledgement in the budget that it often would be handling those matters, Lopez said.

Most people are unaware that the conflicts office has an extensive tie to Juvenile Court, Lande said. But the courts have long held that the same principle that provides a free lawyer to poor people accused of a crime guarantees free legal advice to certain parties in juvenile matters, he said.

In a typical indigent dependency case, the public defender represents the minor while the San Diego County Counsel advises the county Department of Social Services. That leaves the parents--and, possibly, the grandparents or other interested relatives--who also, under the law, may be entitled to a free lawyer if they can't afford to pay for one, Lande said.

The law mandates repeated hearings in dependency matters and because it's not unheard of for a case to begin at a child's birth and continue for the next 18 years, dependency cases tend to be very expensive, said presiding judge McConnell, who is a former Juvenile Court presiding judge.

Even without counting dependency cases, the initial estimate of 4,454 total cases has proved way short, Lande said. The conflicts office figures it will handle 7,593 non-dependency cases by this June 30, the close of the fiscal year, or 3,139 more cases--70% more--than projected, Lande said.

And the added $4.3 million will prove nowhere near enough for dependency matters, he said. The office inherited 12,377 open dependency cases and expects to see 5,005 new filings this year, or a total of 17,382 cases, he said.

The unforeseen explosion in drug-related cases is largely to blame for the hikes in all categories of cases, Janssen said.

"How could we know?" he said. "We don't control the cases. We don't control the types of cases. And the law says we have to pay whatever the cost is. We don't have a crystal ball."

Still, lawyers and judges said, it should have been apparent from the beginning that 4,454 cases and $2.3 million were unrealistic estimates.

"As far as budgets are concerned, you can either try to make a guess that will be closer or you can try to make a guess that can not be so close," said Landon, the former executive director of Community Defenders and now a private defense attorney.

"In the case of that budget, everyone agreed when it first came out that it didn't reflect any type of reality at all. It was very, very low."

Explanations for why the dependency cases were not accounted for from the beginning are contradictory.

Janssen said "dependency was not on the table" in 1988. But Landon said it assuredly was on the table, since Community Defenders brought it up. "It's a subject we certainly discussed," Landon said.

Juvenile court administrators also said that the issue was discussed.

Janssen also said the Juvenile Court's fee switch played a role. In 1986, the court began paying lawyers by the hour rather than a flat fee. Janssen said it was usually up to the judge hearing the case to review the bill, not the county Office of Defender Services, meaning there was no county mechanism in place to gauge the number of dependency cases.

However, Superior Court Judge Sheridan Reed, a former Juvenile Court presiding judge, said the "only time the judges even saw the bills" was in a case involving the termination of parental rights. All other cases went to the usual place, the county Office of Defender Services, she said.

"In a typical dependency case, the judge would never have been involved in payment issues," Reed said.

McConnell said it was no secret that dependency filings were on the rise. While there were 1,755 new cases in fiscal year 1985, she said, there were 4,143 last year, a jump of 136%.

"We did have (Janssen) out there to explain to him several times what was going on at Juvenile Court, because we felt it was very important for the (county's chief administrative officer) to be kept informed of what was going on," McConnell said.

But, she said, "There's a difference between knowing and appreciating the significance of a particular fact."

The most likely explanation is that, in the excitement and debate that led to the creation of the public defender's office, the conflicts office--and issues such as dependency filings--received minimal attention, Janssen said.

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