Saturday, February 28, 2015

State Bar and Public Defender Bureaucracies: Obvious Conflicts of Interest?

Throughout my legal career — including at Quarles & Brady, as a solo practitioner, and especially as a writer — I’ve pondered a wide variety of “conflict of interest” scenarios.  And while attorneys are conditioned to run scared from any situation that could conceivably be construed as a conflict, there are two huge conflicts of interest sitting right under our noses.  First, let’s begin with state bar associations.

The mandatory, integrated state bar is such an obvious conflict that it needs little explanation.  In a nutshell, the bar forces attorneys to become members, takes their dues money, and then actively works for “the public” and against its membership.  Some state bar associations still pretend to serve their membership, when actually they are nothing more than Great Public Protection Perpetual Motion Machines: “The [attorney] members of the State Bar might still be stakeholders in the discipline system but that stake has shrunk to the size of the steak you order in a trendy restaurant, the one hiding under a stalk of asparagus.”  But as the Irreverent Lawyer informs us, some state bars might do away with this pretense altogether.  The State Bar of Arizona, for example, proposes clarifying the issue as follows: You, attorney, must join our ranks and pay your annual dues, and we will serve you only if it doesn’t conflict with our “mission . . . primarily to protect and to serve the public[.]”  (For all of the Irreverent Lawyer’s posts on “your friendly state bar,” click here.)

My view is that if you’re working against me, state bar, then don’t add insult to injury by taking my money to fund your operation.  Get your money elsewhere — for example, through a tax on the “public” that you are so eager to “protect and to serve[.]”  (I’d also like to see how badly the public would want your “protection” if the public, and not the attorneys, had to foot the bill.) 

The other huge bureaucratic conflict of interest is the state public defender’s office.  (I am not talking about the individual public defender-lawyers, but rather the bureaucratic structures throughout the country in which the lawyers are forced to work.)  For example, why would Wisconsin’s Governor try to expand the state’s public defender office by 46 attorneys while leaving the number of state prosecutors unchanged?  Is it to be soft on crime, or to “insult” the state’s prosecutors, as District Attorney David O’Leary believes?  Of course not.  (In fact, O’Leary’s criticism could be the worst criticism in the history of criticisms.)  The Governor’s motive is to save money, ultimately at the expense of the criminal defendants that the public defender’s office is supposed to serve.

Here’s how it works.  If a defendant qualifies for public defender representation, he’ll get either: (1) a public defender; or (2) a private attorney appointed by the public defender’s office.  The public defender gets a fixed salary and has to take X number of cases — former public defenders tell me more than 200 mid-range felony cases or the equivalent (for example, more than 400 misdemeanor cases) per year.  The appointed private attorney, on the other hand, typically gets paid $40.00 per hour.  (This isn’t always the case — but that is a topic for another post.) 

If the Governor gets his way and expands the public defender bureaucracy, then “The increased capacity means private attorneys would be relied on less[.]”  That saves taxpayer money and also guarantees more convictions.  How?  Because with a caseload of 200 – 400 cases per year, an overworked public defender has no choice but to grind more of his or her cases through the plea-bargain machinery instead of going to trial.  (For a more thorough discussion of how an “impoverished defense bar” and “high plea rates” conspire to “generate convictions in bulk, often without meaningful scrutiny of whether those convictions are supported by evidence[,]” see Alexandra Natapoff’s article simply titled Misdemeanors.  And for an example of how some public defender attorneys have fought back against this system, see Erik Eckholm’s article Citing Workload, Public Lawyers Reject New Cases.)

So there you have it: state bars working for “the public” at the expense of their memberships, and public defender bureaucracies expanding to save taxpayer money at the expense of their clients.  But what’s the solution?  Simple.  First, do away with the mandatory bar, making state bar membership voluntary.  (Hat tip to the Irreverent Lawyer for finding that article.)  And second, go back to the pre-public defender era and provide indigent defendants with counsel via reduced hourly-rate private bar appointments. 

In the meantime, if anyone can think of two more glaring conflicts of interest in the legal profession, I’m all ears. 

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