Fee Cap Worries Lawyers

    May 30, 2007
    Napa Valley Register
    By David Ryan

    By giving criminal defense lawyers a cap on fees they get paid to defend the poor, a county proposal is drawing fire from a national organization of public defenders.

    In April, the Napa County Board of Supervisors approved — in concept — the idea of capping fees paid to conflict public defenders, court-appointed lawyers who substitute for the public defender’s office when conflict of interest rules exclude the office from defending a certain client.

    Britt Ferguson, county assistant CEO, told the Board the plan is to offer five outside attorneys $7,000 per month to defend adult cases, and one lawyer $5,000 per month to take on juvenile cases. He said it could stop escalating costs of court-appointed public defense, where four years ago the program cost $637,000, rising to an estimated more than $1 million this year. Ferguson said the plan could shave about $100,000 off that figure.

    In 2006, contracted and court-appointed conflict attorneys represented defendants in 274 felony cases and 203 misdemeanor cases.

    According to the National Legal Aid & Defender Association, the proposed cap sets up a conflict of interest between the attorney and the client, where the attorney has an incentive to skimp on hiring outside experts and investigators in favor of pocketing as much of the fee as possible.

    In fact, the defender association said in a letter to the Board of Supervisors, the county’s proposal runs afoul of American Bar Association conflict of interest guidelines originally written by the defender association.

    “The same guideline addresses contracts which simply provide low compensation to attorneys, as is apparently being considered in Napa County, thereby giving attorneys an incentive to minimize the amount of work performed or ‘to waive a client’s rights for reasons not related to the client’s best interests,’” wrote Richard Goemann, director of defender legal services.

    Ferguson did not respond to phone calls for comment.

    Napa County Supervisor Diane Dillon, who was the lone voice of skepticism on a mostly supportive board and the board’s only trained lawyer, refused to comment on the defender association’s concerns.

    What Ferguson did do was issue its request for proposals and send copies to the defender association, the American Civil Liberties Union and the media.

    Molly Rattigan, a county management analyst, said the county received 11 responses from lawyers and law firms interested in defending adult cases and four lawyers or law firms interested in defending juveniles.

    The proposal did not address the defender association’s principle worry about the fee cap.

    “As you will see this proposal addresses the concerns you raised with the exception of placing a cap on the number of cases; staff is currently considering the idea of placing a cap on the number of cases,” Ferguson wrote in an accompanying letter.

    County staff is expected to come back to the board of supervisors with a finalized version of the proposal sometime in the coming months. At that time the board will vote whether to support, change or drop the idea.



National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org