Saturday, August 5, 2023

Of Symptoms and Larger Problems

The Houston Chronicle ran an article this week about local criminal defense attorney Jerome Godnich and the fact that he made over half a million dollars last year in court-appointed fees.  In my current role as president of the Harris County Criminal Lawyers' Association, I was interviewed at length by Neena Satija, the reporter who wrote the article, although a lot of what we talked about didn't end up in the story.

The quote of mine that she did use pointed out the fact that I thought Jerome (as well as other lawyers who have recently come under the microscope for taking on too many cases) gets appointed on so many cases because judges know he is a good and competent lawyer.  In typical fashion (in what has become the story of my life since becoming HCCLA president), by 9 a.m., I'd received one e-mail saying I needed to defend Jerome more strongly and another saying I didn't blast him enough.  

It's days like these that I really miss smoking.

The point that I was trying to convey to Neena when she interviewed me was that I thought that overloaded attorneys are a symptom of a much larger problem.  The larger problem being that there aren't enough qualified lawyers to handle the more complex and serious cases that permeate the CJC on a daily basis.  I also pointed out that the only difference between those overloaded lawyers and myself is that I regulate myself on how many open and active cases I'm willing to take on at any given time.  And I'm routinely asked why I'm not popping up on the list more often. 

Couple that shortage with the way (as opposed to the amount) attorneys doing indigent defense in Harris County are paid, and voila!, you get the incentivization of the overloaded lawyer.

As I wrote back in 2017, the issue in Harris County when it comes to indigent defense isn't the amount that lawyers get paid, but when they get paid.  Under the system, attorneys aren't supposed to get paid for the work that they do on a case until the case is finally disposed of.  As I noted back then, every judge I know is willing to let an attorney file an interim voucher if they need to, but generally, we are supposed to finish the case before asking to be paid for it.  Under that system, an attorney at any given moment can be owed thousands of dollars by the county and is working on the promise that they will get paid eventually.  

Unfortunately, we attorneys aren't provided the same courtesy by people we owe money to.  I wouldn't get very far with my bank if I told them that I'll pay my mortgage as soon as I'm done living in my house.

The way attorneys who rely on court appointments keep their income stabilized is by keeping a steady flow of accepting new cases as older cases are disposed of.  Ideally, that will lead to cases being resolved on a regular basis and an attorney being able to be paid.  The problem is that it isn't an exact science, especially when dealing with more complicated, first-degree cases.  Those cases are far more likely to be set for trial, and how quickly they get to trial can vary drastically on a case-by-case basis.  If a lawyer's balance of incoming to outgoing cases isn't properly managed, that lawyer could potentially go a couple of months (or longer) without getting a paycheck.  

Years ago, when I described how the system worked to my dad, he analogized it to a pipeline, which is appropriate on several levels.  Some attorneys are content to keep a nice, steady flow of cases in their pipelines.

Others keep their pipelines on full blast.

If you are a competent lawyer who handles those first-degree cases, the Courts are more than happy to facilitate the full-blast pressure.

For many critics of the Harris County Criminal Justice System, the suggested answer has been a larger Public Defender's Office.  Given the size of Harris County, the PD's Office is relatively small and handles far less than even half the cases requiring indigent representation.  Some have advocated that the PD's Office be made large enough to handle all indigent defendants in Harris County.   Although I have a tremendous amount of respect for the Harris County PD's Office, I think there are quite a few problems with that idea.  I think it is feasible that the Office grow significantly and take a larger percentage of cases, but that's going to come at a much higher price tag for the County.  Additionally, the PD's Office has some very strict guidelines regarding their case counts and they actually adhere to them.  Throw in things like conflicts of interest and how to handle co-defendants, and I don't think that the private Defense Bar will ever be fully removed from indigent defense, but I could be wrong.  There are just too many Defendants.

Although I think that growing the Public Defender's Office would be helpful to the situation somewhat, I think that more meaningful change can be made by revamping the current case management system (Federation Systems Authentication Gateway aka FDAMS) in a way that bolsters accountability by 1) implementing case caps; and 2) accommodating a bi-monthly payment system.  It would definitely be a big change, but a worthwhile one.

Addressing the issue of case caps first, I have always thought that the standard of how many cases a lawyer handled in a year was less important than how many cases a lawyer was handling at a time.  Under a revamped FDAMS system, each attorney's cases would be tracked as well as the degree of each case.  The judges (or whatever powers that be) could establish how many cases (and of what degree) an attorney was allowed to be appointed to at any given moment.  For example, let's say 15 first-degrees, 25 second-degrees, and 60 third-degrees or State Jails were the numbers.  If an attorney has hit that limit (on any given degree) then they simply won't be eligible to pop up on the list for that degree.  Under that system, the overloaded attorney could still find a way to get overloaded, but not with appointed cases from Harris County.

Switching to the bi-monthly payment system would be more problematic to implement, and the idea would definitely face some pushback from multiple parties -- including the attorneys taking appointments.  I don't do Federal appointments, but I've heard that they follow a system of incremental payments rather than requiring a case be completed before an attorney could file a voucher.  This system would require attorneys to keep more detailed and current records of the work they do on cases, but there would be a two-fold benefit to doing it.

The first and most obvious benefit would be that attorneys would be able to rely on regular payments for the work they had done during the pay period.  There would be no need to keep "the pipeline" full and flowing and therefore the need to overload wouldn't be so tempting.  The second benefit would help not just the attorneys, but the clients and the courts as well.  By logging in the hours on a case in real-time (rather than waiting until a case was finally disposed of), the courts would have access to seeing that cases were actually being worked on.

It's not an infrequent complaint from indigent defendants that they feel their attorney isn't doing any work on their case.   This system would allow the court to check out what hours had been logged on a case thus far to see whether or not those complaints are valid or not.  If a client alleges that their attorney hasn't communicated with them, this system would easily confirm or deny that allegation.  It would incentivize the attorney to make sure he or she is doing what he is supposed to do on a case or risk having to explain themselves to the court.

Like many other attorneys I know, our law firm utilizes to manage our caseloads.  The type of time management accounting that I suggest is a standard part of their platform.  Using this system, attorneys can look at the time they spend on each individual case as well as look at a big picture of their billable hours on all cases over a time period.  Although this may seem like a drastic change from how Harris County currently does things, this is basically just running FDAMS as if it were an actual law firm.

My thoughts are that these changes to the FDAMS system would create an immediate and positive change in the quality of representation of indigent defendants while providing accountability for the system as a whole.  I have no doubt that this would be somewhat difficult to implement, but it would be far from impossible given the advances in technology that we see every day.  I think it would also ultimately be far cheaper than hiring one hundred new public defenders that would be required to keep up with all of the cases filed every day in Harris County.

I'm sure that there are probably some pitfalls in my plan that I'm overlooking, but I'd love to discuss them with anybody willing to have a serious conversation about them.  

CJC Closure for Tuesday, July 9th

 I'm dusting off the cobwebs from the old blog to do a public service announcement that all courts will be closed tomorrow, Tuesday, Jul...