The Los Angeles County Board of Supervisors has decided to sell a fundamental constitutional right to the lowest bidder. The county is looking for attorneys willing to charge it the least amount of money for representing poor people charged with crimes. "Will the defendant receive a fair trial?" may be replaced by the county auditor playing auctioneer: "Do I hear a lower bid?" Justice is going, going, gone!
Under the 6th Amendment to the Constitution, the government must provide a lawyer, at public expense, to defendants who cannot afford to hire private counsel. That amounts to more than 90% of all defendants, including most of the middle class, since the cost of private representation in a relatively simple misdemeanor case is typically $1,500.
This is how "justice" would operate under the supervisors' bidding plan: You live in Pomona and get arrested. You can't afford to hire a private lawyer. A public defender can't represent you because she has a conflict of interest or is simply overloaded with cases. Therefore, you will be represented by a lawyer drawn from a group of attorneys who bid the lowest annual flat-fee dollar amount to represent all defendants in the Pomona Superior Court for 1999. Essentially, you and your fellow defendants have been purchased in bulk by the lowest bidder. The projected savings of adopting flat-fee indigent contracts for all criminal courts in Supervisor Gloria Molina's First District is $300,000. (The county will spend at least that much defending its bidding system in court, should it proceed.)
The Los Angeles County Bar Assn. has refused to sanction this travesty of justice. Accordingly, it has told the Board of Supervisors that it will not supervise the conduct of its participants. The bar also has charged that the bidding conditions violate numerous statutes, case law and the Rules of Professional Conduct governing attorneys because it places attorneys in a direct financial conflict with their clients' best interests.
Since the State Bar virtually no longer exists to police attorneys, the unwritten understanding implicit in the low-bid contracts should read: Quality control: None. Peer review: None.
Among the bidding contract's more egregious insults to justice is a clause providing that if the contract attorney discovers a conflict of interest in representing a client (previously representing a co-defendant or witness are the most common examples), any fees paid to a new court-appointed lawyer shall be taken out of the contractor's budget. Put another way, ethical conduct is punishable. Similar clauses have been declared illegal by the California Supreme Court as far back as 1981, in People vs. Barboza. Why county counsel and the Board of Supervisors seemingly ignored this ruling is anyone's guess, since the county bar provided them with the case citation.
It is no small irony that the main impetus behind "justice on the cheap" is Supervisor Zev Yaroslavsky. When he first ran for a seat on the City Council in 1975, which included the Fairfax district, he campaigned, among other thing, on a platform of freedom and fair treatment for Soviet Jewry. Some 23 years later, and a lot closer to home, Yaroslavsky's love of freedom seems to have narrowed and his devotion to fair trials slackened. Yaroslavsky seemingly cares less about the competence or diligence of lawyers representing poor people than saving pennies. By contrast, Supervisor Mike Antonovich, a Republican conservative and retired reserve police officer, has opposed plans that would deny defendants a fair trial simply to effect a cost saving. Does it take an ex-cop to explain "due process" to a purported Westside liberal?
Yaroslavsky has charged that the old system of panels of attorneys supervised by the county bar was a rip-off. But consider:
Under the county Charter, the pay and benefits of a supervisor equals that of a Superior Court judge. In 1974, a judge received about $65,000 in salary and $7,000 in benefits. On April 11, 1974, the court authorized appointed counsel to receive $50 an hour. This year, supervisors and judges make about $110,000 in salary and almost $30,000 in cafeteria-style benefits. An appointed attorney still makes $50 an hour, except on misdemeanors, which have been reduced to $40 an hour.
When the county gets sued, however, the supervisors have precious little interest in saving money. They go "first cabin," regularly hiring the most expensive law firms to defend the county in civil suits. For such outside counsel, the supervisors don't balk at paying from $200 to $500 an hour, with a median hourly fee of $250. Outside paralegals get $75 an hour doing county work, which is $25 more an hour than a criminal specialist attorney receives for defending an accused murderer. In most cases, the county lets their outside legal bills pile up rather than settle, so that a criminal lawyer's compensation is Lilliputian by comparison.
It used to be that the judiciary shielded defense lawyers from legislative attempts to savage their pay. Because defense lawyers have no political constituency, it was the judiciary's duty to protect them, so that the defenders could, in turn, protect their clients. But politics and a diminishing government interest in preserving due process have changed all that. A judge is seldom recognized by his or her peers for scholarship, insight, reflection, wisdom or courage. Instead, state judges use statistics to assess the work of other judges. How big is your backlog? How many cases did you clear this month? Whether an outcome is fair, just, equitable or legal is a secondary consideration to the almighty monthly stat sheet issued by the presiding judge.
The right of an accused poor person to a state-appointed lawyer was decided by the Supreme Court in 1963, in Gideon vs. Wainwright. Asked by Florida to file a friend-of-the-court brief denouncing this expense, California responded by filing a brief on behalf of Clarence Earl Gideon. California, you see, has provided "free" state-paid lawyers for poor persons accused of crimes since 1915.
What Yaroslavsky and his colleagues have failed to understand is the difference between trimming governmental fat and cutting out its heart.