CA Justice Commission: “Low bid, flat fee” Defense Attorney Hiring Scheme Shortchanges Indigent Criminal Defendants

by John E. Dannenberg

The California Commission on the Fair Administration of Justice (Commission) charged that the practice of California counties to use competitive bidding for private attorneys to represent indigent criminal defendants has resulted in unconstitutionally poor legal representation. The practice usually involves bidding the criminal defense work on a flat fee, low-bidder-wins criterion. As a result, the profit-driven successful bidders are motivated to minimize expenses such as outside investigators and expert witnesses at the defendants’ peril.

Former Stanford Law School Dean Gerald Uelman, Executive Director of the Commission, opined, “this is like a cancer within the system of providing indigent defense, and its spreading” - “a race to the bottom.” While he noted that the U.S. Supreme Court concluded long ago that indigent criminal defendants are guaranteed competent counsel regardless of their ability to pay (Gideon v. Wainwright, 372 U.S. 335 (1963)), the growing low-bidder practice has resulted in cutting corners during trials or even worse, avoiding going to trial at all. In sharp contrast, Uelman noted that full-time public defenders (who handle 80% of California’s felony filings) do not suffer these infirmities, observing that the local (Santa Clara County) defenders “vigorously advocate for adequate funding for investigators and experts.”

Sometimes called the “Wal-Mart model,” the fixed price bidding scheme requires outsides expenses to come “off the top,” leaving profit to be determined by legal representation that is avoided. The Commission rightfully calls this type of disincentive “an unacceptable conflict of interest” and has therefore asked the state Legislature to establish an oversight body for defense representation and to enact laws requiring expenses to be separately funded from attorney fees.

One horror story recounted that rural Shasta County had contracted with one law firm to handle 5,000 criminal cases for a flat $400,000 per year. In 1998, only 20 cases went to trial. One of the contractor’s associates had never handled a jury trial, but was given one for multiple felonies and misdemeanors a scant seven days before trial. The case file revealed no pretrial motions had been filed, no witness list had been compiled, no expert witnesses were endorsed and no one had been subpoenaed. The police report indicated a warrantless search, for which the associate asked for a continuance to investigate.

When this was denied, she refused to move forward with the case, and another associate was substituted who pled the case out to guilty on all charges. The first associate was fired, for which she sued her contract employer in federal court - receiving a substantial settlement. During that case, the contractor crowed about settling 70% of all cases within 30 seconds by pleading guilty. Shasta County subsequently abandoned its flat-fee contract in favor of a public defender’s office, which enjoys a good reputation today.

California’s State Bar Guidelines clearly set out the requisite principles. “Indigent defense providers should enjoy parity, to the extent permitted by law, on a relative scaled basis with prosecutors in access to technology, criminal history information, ... databases...,
investigators and investigative tools, including a travel budget, experts, paralegals, forensic labs, facilities, data processing and exhibit creation capability. The cost of these resources should not operate as a charge against the indigent defense provider to such an extent that the net personal compensation to the defender is diminished.”

Accordingly, the Commission - comprised impressively of 24 seasoned experts from all corners of the Bar as well as renowned scholars - recommended creation of an oversight board, the Indigent Defense Commission, with input from the Administrative Office of the Courts and the State Bar.

Sources: Report and Recommendations on Funding of Defense Services in California, California Commission on the Fair Administration of Justice (April 2008). The report is posted on PLN’s website.
Other source: San Jose Mercury News.