Friday, September 13, 2013

New reports will track indigent spending by attorney: TIDC newsletter details monitoring mechanics

The September newsletter from the Texas Indigent Defense Commission has enough interesting tidbits in it to merit a reference. Here's a notable, informative excerpt from his opening letter:
Following a busy legislative season I would like to bring to your attention several items that will impact counties and their indigent defense systems.

Based on the Commission’s FY14 budget, most counties will be eligible for a special, one-time formula grant payment disbursing funds that were accumulated in the Fair Defense Account but not appropriated in the legislature’s previous budget.  We are working to expedite the distribution of these funds and anticipate the timing of this special payment to be in December 2013. [Ed note: Merry Christmas!]
The legislature also created several new indigent defense reporting requirements for counties in HB 1318 regarding attorneys handling indigent cases, discussed in greater detail below.  We have reached out to county auditors and other stakeholders to help define a strategy for implementation of this legislation that will be most effective. 
In addition to the new reporting requirements, HB 1318 directed the Commission to conduct a weighted caseload study. We have partnered with the Public Policy Research Institute at Texas A&M to conduct the study. Little is currently known about the amount of time being spent to defend criminal cases in Texas.  Moreover, the most commonly cited national standards regarding attorney caseloads in public defense were developed in 1973 by the National Advisory Commission on Criminal Justice Standards and Goals and appear to be based on a consensus of opinions rather than on objective evidence.  A careful study of actual practice will shed light on the time it takes to provide appropriate representation in different kinds of cases and can facilitate a more evidence-based discussion about caseloads for attorneys handling indigent cases.
Looking ahead, TIDC is excited about our upcoming Indigent Defense Workshop for Texas county officials on October 28-29.  In addition to covering recent developments in indigent defense, the workshops will share valuable information on defender programs for mentally ill defendants and opportunities for improving indigent defense through better information management. The Indigent Defense Workshop Agenda and Registration Information is available here.
Following up on HB 1318, the newsletter provided detail about new county reporting requirements breaking out spending by attorney:
The Commission has been working with stakeholders to develop forms and processes to implement HB 1318 by Representative Sylvester Turner. The bill seeks to gather information on caseloads handled by attorneys providing representation to indigent defendants via two new reports beginning in 2014. The first requires attorneys handling such cases to report to each county annually by October 15th information for the preceding 12-month period (October 1-September 30) that describes the percentage of the attorney's practice-time that was dedicated to 1) Adult criminal cases in that county’s district and county courts and 2) Juvenile delinquency cases in that county’s district and county courts. The second requires each county to submit to the Commission annually the information provided to the county by those attorneys described above, along with information that describes for the same 12-month period the number of appointments made to each attorney accepting appointments in the county beginning November 1, 2014.
Commission staff has been meeting with a variety of stakeholders, including counties, courts, and the criminal defense bar, to find ways to implement HB 1318 in a seamless manner while providing meaningful information to policymakers. On the attorney practice-time report, we have been working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to develop an online form to permit attorneys to report simultaneously for all counties in which they work. Alternatively, a jurisdiction may require or permit attorneys to report via a paper form to be promulgated by the Commission; however, the county would then need to report this to the Commission. Penalties for attorneys failing to submit a required practice-time statement by the October 15th due date may be set by the judges locally and may include an attorney’s removal from the list of attorneys eligible to receive future court appointments as is common practice with those who do not submit their required continuing legal education (CLE) hours.
As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. [Ed note: emphasis added.]County auditors have indicated that they already collect this information as part of the attorney payment process. Attorney practice-time reports entered through the attorney portal described above will go directly to the Commission, thereby eliminating need for the county to forward it to the Commission. Completed reports will be pre-populated into the IDER and show the attorney name, bar number, and practice-time percentage figure for each attorney (with case and payment reporting fields adjacent for completion of that part of the report). For subsequent years, attorney information will not need to be reentered because it will appear automatically in the IDER. Templates with a standard data format (XML) will be developed with PPRI to permit county auditors/treasurers to complete and then upload the report rather than manually entering the data into the website.
This data, indexed by named, individual defense attorney, will make for a provocative round of local news stories when the first reports come out. (If you're an attorney representing more than a couple hundred or so court-appointed clients at a time, prepare to see your name in the paper!) The data under HB 1318 could already be gleaned through laborious, county-by-county open-records requests, if you knew what you were looking for, but it'll be far easier to access, and in an apples-to-apples format, if TIDC gathers and publishes the info. Too bad the state won't be gathering similar data for line prosecutors; that too, could make for provocative news fodder.

Several other interesting items in the TIDC newsletter, see here.


john said...

Do the attorneys take the cases because they are forced, or do they make a profit---if they take a lot (sounds like welfare babies)? If they take a lot, can they spend enough time to actually help? Since a lawyer is first beholden to the union (Bar Asso.), and then the court; is he even really "your" lawyer, and why should he care? (Hence some attorneys will admit, 'you can't afford justice.')
Or, tell me how I've got it backwards & it's all rosy.

Anonymous said...

To answer your questions...

No, attorneys are not forced to take these cases.

In counties where attorneys are assigned based on a rotating wheel, you generally get $150 for misdemeanors and around $400 for felonies. So you are not going to make a profit but its cash to pay the bills. Welfare? How is it welfare when the attorney is providing a service in exchange for compensation? Maybe you should look up the definition of that word.

Attorneys are governed by the Bar and must even tell clients how to report any failings to the Bar. Most attorneys, therefore, do what is required and needed on every case. Attorneys work hard for their license and pay a lot for them. So, yes, they care because the Bar sees to it that they care. Plus, most attorneys want to help and if they get to stick to the state then that's an added bonus.

Are there bad attorneys? Of course. Any profession has a certain percentage of bad apples. Until you meet every attorney, maybe you should censor your comments.

Anonymous said...

john, first you'd have to have an inkling of what you're talking about before you could even start to get it backward. As it is, you just sound like someone who got popped by a lawyer at some point in the past, most likely by one representing your ex, so you think all lawyers are bad.


Anonymous said...

My experience in reviewing the work of court appointed attorneys in hundreds of cases is that the end result in up to one half the cases is not much different, if at all, than what it would have been if the defendant had retained counsel and spent serious money.

However, in the rest of the cases, some pretty disturbing things are routinely taking place. In at least half of the cases I have reviewed in which court appointed counsel were involved, important witnesses were never contacted or interviewed, let alone asked to give affidavits, and the lawyer never spent any reasonable length of time meeting with his/her client, getting to know what his/her life circumstances are all about, and rarely will the court appointed counsel spend the time asking the many many questions necessary to form a clear picture as to the true facts of the case, and how that fact situation might lead to difficulty in the state proving the elements of its case beyond a reasonable doubt. Also, there is a disturbing tendency to approach the case as if it will NEVER be tried to a judge or a jury, and this failure to hold the state accountable and make the state prove its case (even if making it prove it to itself)leads to the prosecutor making unreasonably high plea offers, and the court appointed counsel ramming those offers down the defendant's throat with exaggerations and scare tactics of 99 years in prison, etc.

I think the main problem with the court appointed system is twofold. One, it's absolutely ridiculous to think that an attorney will do a really thorough job on $400. Thoroughly interviewing your client and investigating the facts alone is worth at least $1,000 to $1500 in a felony case to any attorney who knows what they're doing, and the total fee ought to be $3,000-$4,000 if you really expect indigent defendants to have the same opportunity to fairly access the justice system. Second, no matter how much some of these judges act like they do not expect plea deals in court appointed cases, time and time again the prosecutor AND the judge take offense to a defendant who exercises his/her constitutional right to force the state to prove its case in a court of law. When they take offense, they use that defendant as an example to all the other ones, and send the message that you had better be "good" and enter into a plea deal or else you will be punished far more severely if you do not.