North County Legal Defense Crisis Looms : Courts: North County lawyers say they can’t afford to defend indigents at the low rates paid by the county. The problem is likely to spread to other areas of the county.

The number of North County lawyers willing to defend poor people charged with minor crimes has dwindled to three because attorneys only make $75 per case and haven’t had a raise in nine years.

One of the three remaining attorneys said last week that he is quitting the county rolls for a while, too. A Vista judge said the situation borders on a “crisis” and may lead him to force lawyers to take on poverty cases, whether they like it or not.

The problem may spread to other county courts, county officials said last week. But even at just one, it underscores the hard budget choices behind one of the county’s recurring legal and fiscal dilemmas, the $30-million annual business of indigent defense.

The federal Constitution demands that poor people accused of crime be defended free of charge. The financially strapped county insists that indigents be defended as inexpensively as possible.

So, in recent years, the county has created not one, but two, public defender agencies, aiming to improve lawyer quality, slash costs and bring stability to San Diego’s widely criticized indigent defense system. But costs keep rising and stability is proving elusive.

The Public Defender’s Office, which came into being three years ago, is a traditionally styled county agency, staffed by about 185 lawyers who are county employees.

Modeled after it, the 25-attorney Alternate Public Defender’s Office was created last year to handle cases in which the Public Defender’s Office has a conflict of interest. In the criminal courts, those cases typically involve multiple defendants, each eager to point the finger at each other, each entitled to a separate lawyer.

By design, the agencies are in the process of taking cases away from the private bar, which until 1988 used to handle the bulk of them.

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.

Even with the advent of the two defender agencies, however, the county’s legal bill is climbing.

In fiscal year 1989, the county spent about $27 million on indigent defense, budget analyst Sandy Smith said. This fiscal year, she said, the projected tab is $32.9 million, or up nearly $6 million in two years.

“Caseloads obviously are going up,” said David Janssen, the county’s assistant chief administrative officer. “The question is, is crime going up or does it have to do with the filing practices of the district attorney’s office or with police arrests or lack of jail space impacting the courts, or what? There are a lot explanations and no single one.”

As for stability, the Alternate Public Defender is not yet fully staffed. So private lawyers are taking those cases involving a conflict of interest that even the Alternate Public Defender can’t, or isn’t yet able, to handle. Left with fewer cases, those private attorneys want more payment per case to make it worth the work.

The rub for county budget planners is that the private bar’s role in the indigent defense business, though reduced, is likely to remain substantial for years to come. Cases involving three or more defendants are not that uncommon, lawyers and county officials said.

Some conflicts cases, as they are known, are felonies, and private lawyers can earn $50 to $75 per hour for those. But misdemeanors, like low-level drug busts or petty theft, are worth $75 per case. That’s per case, not per hour.

If a misdemeanor goes to trial, the lawyer can earn another $125 a day for each day in trial. But most cases end short of trial, in a plea bargain, lawyers said.

Forcing the lawyers to take the cases for free is out. Appellate courts have ruled that pro bono work--meaning done for free, out of civic duty--cannot be made mandatory.

Besides, said Dan Cronin, an Escondido lawyer, “Our major complaint is that we deserve the right to decide who to do pro bono for, rather than have society do that for us.”

Officials from the bench, the bar and the county said last week that it is not unreasonable for the private lawyers to seek a raise. The $75 fee has remained the same since 1982 because the county hasn’t had cash to raise it, said Janssen.

It still doesn’t. And that makes a raise problematic, Janssen said.

Raising lawyer pay is “something we would be willing to take a look at,” Janssen said. “But the bottom line, of course, is how much money is available for any one program. With a limited amount of money, someone somewhere is not going to be paid what they are due.”

A raise is also problematic because this year’s chairman of the Board of Supervisors, John MacDonald, made a point earlier this year of stressing that his priorities include curbs on private lawyer fees.

In his state of the county speech, delivered in January upon becoming chairman, MacDonald proposed setting a cap on the annual earnings of county-reimbursed private lawyers, limiting them to the level of deputy D.A.’s with comparable experience.

MacDonald did not return phone calls this week to his office. But he said in that speech that he had become frustrated with a “legal system that has become padded and profitable to a variety of attorneys and expert witnesses” and an “unwieldy burden on the taxpayers.”

Lawyers, however, said that a $75 fee for a case like petty theft is too low to even make ends meet.

Since conflict cases in criminal courts typically involve multiple defendants, that means more police reports, more pretrial motions to suppress evidence and more time-consuming effort at creating a pretrial deal that will please all parties, attorneys said.

Lonnie Hubbard, an Oceanside attorney, quit the North County list about a year ago over fee frustration.

“With malpractice insurance, research books, staff and office, your overhead is $45 an hour,” Hubbard said. “You’re going to spend more than three hours on each of those cases, easily, just in investigating and interviewing clients.

“The net result is that the $75 payment suppresses good representation and rewards bad representation,” he said. “Nobody worth their salt is going to do it unless they do it in volume and that’s all you want to do with your life.”

The Public Defender’s Office has cut down substantially on the private bar’s volume of such cases.

According to county figures, the private bar handled 1,140 misdemeanor conflict cases last fiscal year.

This fiscal year the Public Defender’s Office began taking misdemeanor cases in earnest. Through the end of February, 1991, or eight months of the current fiscal year, private lawyers had been assigned 468 cases, a count that projects out to an annual rate of 702, which would be down 38% from the year before.

Michael Fremont, an Encinitas lawyer and one of the three remaining North County lawyers on the list, said the slowdown is appreciable. He has drawn “maybe four, maybe five” $75 cases per month in recent months, he said.

Though the problem has erupted first in the North County courts, it would not be unexpected if it spread elsewhere, officials said. “I think, as in most programs that the county provides, that there are potential problems in a lot of areas that are just waiting to explode,” Janssen said.

The downtown list is 16 lawyers, in El Cajon it’s eight and in Chula Vista it’s four, according to Elliot G. Lande, director of the Department of Alternate Defense Counsel, the county agency that deals with the private lawyers.

Those numbers are suspect, though, because Lande’s list can lag months behind lawyer resignations. His North County count, for instance, is six, not three.

Lawyers in other courts are not happy either. Jack Boltax, on the downtown list, said he has considered getting off it. “If there were more cases and you could deal with volume, it would be fine to take it at $75 a case,” Boltax said. “But not having any volume, it can be difficult.”

The county check, meanwhile, often doesn’t come until three months after the court case ends. Lawyers said that makes the whole deal too aggravating to be worth it.

John Emerson, a Vista lawyer still on the North County list, said last week that he still has not been paid for January cases.

Lande conceded that delays in payment are not uncommon. That’s because there are four staffers auditing bills from 341 lawyers, Lande said.

Three weeks ago, the judge in charge of the North County Municipal Court announced that if his list of eligible lawyers reaches zero, he has no choice but to begin drafting 16 experienced attorneys to do the work, whether the lawyers like it or not. The judge said the attorneys would be paid $30 an hour, whether the county likes it or not.

“I know the Board of Supervisors have a lot of things they’re working on,” said presiding Judge David Ryan. “They may not see this as big issue. But in our little fish pond, I have to make the appointments and I have to call it a crisis when I don’t have lawyers to appoint.”

Predictably, North County lawyers are not enthusiastic about Ryan’s plan to press them into service.

“In no way can I or any other bar leader go, in good conscience, to volunteer to take over a function of county government, particularly where the county has followed the course of trying to write (the private bar) out of the business to begin with,” said Ernest L. Hunt Jr., a Vista lawyer and president of the Bar Assn. of Northern San Diego County.

Fremont, the Encinitas attorney, and Emerson, the Vista lawyer, two of the three attorneys still on the North County list, said they consider their $75 cases the equivalent of pro bono work. “I make $5 to $7 an hour on those cases,” Fremont said.

Lynn A. Behymer, a Carlsbad lawyer, is the last of the three and the North County lawyer who is thinking about resigning from the list. He’s definitely quitting for the next month while he’s on vacation, and he’s not sure he ever wants to go back, he said.

“It’s not a money-maker,” Behymer said. “You’re out there continuing your exposure to the courts, but they kept making it more and more difficult to do it. You’re set up to lose money. And their payments have gotten worse and worse.”

Later, Behymer said, “It’s just a situation that has gotten out of control, I think, because nobody really wants to make any decisions that will cost the county more money. But, frankly, almost any decision is going to cost the county more money.”