Caseload Overload

Monday's Houston Chronicle had an article from reporters Keri Blakinger and Zach Despart entitled "Harris County judges criticized over pace of court-appointed lawyer reform," detailing Rodney Ellis' and the rest of the Harris County Commissioners' Court's push to have a Managed Assigned Counsel (MAC) Program forced upon the Harris County Criminal District Courts.  (NOTE:  A copy of the article is on the Chronicle's paid content website at this link but I could not locate a copy of it on Chron.com.  If you don't have the paid website, you'll have to get a copy of Monday's paper or just trust me on this one.)

Harris County's felony judges have come under fire from Commissioner's Court members for not moving fast enough to abolish the longstanding practice of judges appointing lawyers to represent poor defendants.

The article details much of what I discussed in this post about the MAC back in July.  As I wrote then, the Harris County Felony District Court Judges by no means have rejected the idea of a MAC, but they have asked for more time to design how it would be implemented.  I also shared my multiple concerns about the initial proposal from the Texas Indigent Defense Counsel.  Several of the Felony Court Judges, as well as representatives of the Harris County Criminal Lawyers Association (HCCLA), have shared the same concerns.

Apparently, Rodney Ellis is not the patient type and has demanded that the Felony Courts blindly accept his ideas without having any say in how they will work in the years to come.  That's just foolish.  If the program is going to be effective and capable of dealing with the multitude of complex issues that go along with indigent defense in felony cases, then the District Court Judges would be crazy not to carefully evaluate all aspects of it.  Ellis just needs to calm down.

That being said, Ellis' strongest criticism of the current appointment system is that there are many attorneys who are carrying far too large of a docket, and that's fair if you are looking at things from a purely statistical standpoint.  However, it also begs the question: Why would an attorney intentionally overload his or her caseload?  Are these attorneys really just blindly accepting new cases for no reason other than they can?

The answer to that isn't quite so simple, and the reality is that many of these attorneys with overloaded dockets are taking on so many cases because they are trying to manage the archaic payment system put in place by none other than . . . the County Commissioners themselves.

In today's world, when people go to work, they normally get paid for that work.  They also get paid in a time period that is reasonably close to the time the work was done.  If one works a job where he or she is paid by the hour, a paycheck normally is paid at the end of every week or two.  If one works a salaried position, there are obviously scheduled payments for when that salary gets doled out.

In the legal world, attorneys usually charge a retainer that gets drawn on during the course of the representation.  A client may pony up a hefty retainer that gets placed in a trust, but the lawyer or law firm only takes the money out of the trust once that money is earned by working on the case. 

The bottom line is that the vast majority of people who work get paid for that work reasonably quickly.

But that's not the case with those of who do indigent defense in Harris County.

Before I start sounding too critical of the System, I will point out that I think that Harris County pays well for indigent defense.  Although it doesn't quite approach "free world" payment, it isn't too shabby and it does pay you for the work you've done (eventually).

However, the Harris County payment system dictates that an attorney doesn't get paid on a case that he or she is appointed on until that case has been finally disposed of, and that's a problem.

Let's say that tomorrow, I get appointed on a murder case that is extremely complicated.  As a matter of fact, let's just pretend that it is so complicated that I decide not to take any other cases while I deal with this insanely complex case.  Over the next month, I pour over lengthy offense reports, read cell phone data, watch scene videos, meet with my client repeatedly, talk to my investigator, conduct witness interviews, do scene visits, and attend a couple of court settings. 

Let's say that this one case is pretty much my one and only job for the entirety of the month.  By the end of that month, I have billed over $20,000 worth of legitimate, honest, hard work on this murder case.  It is now the end of the month, and I've got to pay my mortgage, credit card bills, child support, utilities, which should be no problem, right? 

Wrong.  That murder case is still easily a year away from going to trial.  With the backlog of cases and the lingering effects of Hurricane Harvey, in reality, it could be much closer to two or three years before going to trial.  In the meantime, that $20,000 worth of payment that I'm owed continues to sit in the Harris County coffers while I try to figure out how I'm going to make my mortgage and feed my kids.  I did my part, but we are going to have to delay payment on that for a significant amount of time.

So, what am I supposed to do?

Well, the answer to that is generally, sign on to take another case.

So, let's say I decide to sign up for a second case.  Fortunately for me, this one is far simpler.  It's just a crack rock case, a simple State Jail felony.  So, on day one, I get my case and I read the three-page offense report in court.  The case is straightforward and can be worked out, except for one thing -- the lab report on the alleged substance isn't in yet.  I can't plead my client out on a drug case if the State hasn't shown me a lab report proving to me that it is actually an illegal drug.

So, I reset it to wait for labs and I don't get paid on that case this month either.

So, I take another case.  And then another.  And then another. And then some more.  I'm loading up my caseload because I need to get to where I'm on a timeline where payments are coming in.  When I first became a defense attorney, I described how the system worked to my dad.  He likened it to a pipeline, noting that failing to keep the pipeline filled can lead to some pretty lean months.

The attorneys who are overloading their dockets are the ones trying to keep that pipeline flowing continuously, as anyone who dislikes being broke would.  They take the next case and then the next.  Most of those cases may need only a lab report.  Others may be as complicated as that hypothetical murder.  Either way, I will agree that an attorney carrying a tremendous caseload does provide for some pretty bad optics.

An exception to the "pay when the case is done" plan is for those attorneys that take "term" assignments.  They agree to be a Court's attorney of the day or the attorney of the week for a daily rate. For a term assignment, an attorney can be paid on the next pay period.  However, when an attorney is an attorney of the day or week, he or she can be assigned up to five new cases a day, and that doesn't help the caseload overload either.

If I need to get a payment and I need it by the end of the month, I could sign up to be the attorney of the week all month.  Let's say hypothetically, I get an assignment for four weeks straight, and I pick up the full five cases every day.  Suddenly, at the end of the month, I have 100 new cases.

Judges have the power on a case-by-case basis to approve interim vouchers.  If an attorney has worked his butt off on a case and it gets set for trial six months down the road, most judges will approve an attorney getting paid for the work done up to that point.  I can honestly say that I have never been turned down by a judge when asking for an interim payment during that time period.

However, it is definitely not the norm.

The solution to this problem is simple: let attorneys get paid for the work that they do as they do it. 

When the system of not-getting-paid-on-a-case-until-it-was-over was developed, payment vouchers and time logs were all handwritten.  Now, it is computerized.  Making sure that lawyers aren't double billing for hours already claimed and identifying time conflicts can be done with decent software.  It is my understanding that attorneys who do appointed CPS work have the ability to "bill as they go," so why can't those of us who practice indigent defense?

It would definitely have a strong and immediate impact on those attorneys who overload their dockets.  There would be a financial motivation to sit down and focus on a case rather than focusing on getting the next case.  The pipeline methodology of managing a law practice would no longer be relevant.  In theory, cases could be resolved more quickly and the quality of representation would improve as a whole.  There wouldn't be pressure to resolve a case for financial reasons.

In short, it would address many (but not all) of the concerns the Commissioners have listed when advocating for the MAC. 

Discretion and the MAC System

Like many criminal defense attorneys who work in Harris County, my law practice is a division of both retained and appointed cases.  In the ten and a half years that I've been on the defense side of things, my retained cases have increased, but I still take appointments on cases when my caseload can manage some new material.

For those of you unfamiliar with how the appointment system works in Harris County, an attorney who is approved to take appointments has the ability to go on the Harris County website and list himself or herself as available for either an individual appointment and/or a "term" appointment for a day or a block of days on the calendar.  If a court needs an "Attorney of the Day" (a lawyer who will work in the court and represent up to five defendants needing lawyers on any given day) and the attorney has checked the "term" appointment box, that attorney will be eligible to be called up.  If a court needs an attorney for just a case or two, the attorney who put in for an individual appointment would be eligible.

When the coordinator of the court needs an attorney for either "term" or individual appointment, the computer will generate the names of ten different attorneys who have listed themselves as being available.  The coordinator or the judge will then select someone from that ten-person field.  Additionally, the Harris County Public Defender's Office could also pop up as one of the ten options.

It should come as no surprise that the amount an attorney is paid on an appointed case is generally significantly less than what we routinely charge for retained cases.  That's not a complaint -- Harris County pays better than most other counties that I'm familiar with and there was a noticeable increase in the pay scale that went into effect in March.  But the bottom line is that indigent defendants in Harris County get some pretty damn good legal representation for a significant bargain to the County on a daily basis.

Attorneys who take appointments in Harris County find themselves in trial quite often and the more an attorney goes to trial, the better he or she becomes as a litigator.  Some of the very best lawyers that I tried cases against during my time at the D.A.'s Office were appointed and I think that if you ask any prosecutor or judge, they would express the same sentiment today.

Judges and coordinators know what defense attorneys do a good job, and more importantly, they know which ones don't.  Although the Court must select a name from one of the ten names that are provided to them from the electronic "Wheel," the Judges still have the discretion to avoid an attorney that isn't up for the case they are being considered for.  In that regard, discretion is definitely a good thing.

Critics of the current appointment system, however, point out that this discretion is also something that can lead to cronyism and potential abuse, and that is certainly a valid point.  In my earlier days at the D.A.'s Office, there were some judges that I saw appointing mind-numbingly bad attorneys on a routine basis.  I also saw attorneys who were powerful in the Republican Party or big donors that got a lot of mind-boggling appointments.  That being said, I saw that taper off significantly as new judges were elected to the Bench over the past fifteen years or so.

The critics of Harris County's current appointment system, led by County Commissioner and former-State Senator Rodney Ellis, are pushing hard to replace it with a new program known as the Managed Assigned Counsel (MAC) Program. This program would take the power of appointment away from the Judges and Coordinators and give it to a newly created entity that made the appointments in a rotation.   The County Court judges have largely agreed to it, but there is some debate amongst the District Court judges.  The District Court judges have been regularly meeting with each other and members of the Defense Bar to iron out potential details.

The MAC is something that would require a grant from the Texas Indigent Defense Commission (TIDC) and the TIDC is an organization near dear to Rodney Ellis' heart.  His former policy advisor, Scott Ehlers, is Special Counsel to TIDC and would doubtlessly play a large role in bringing the MAC to Harris County.  It is my understanding that the District Court Judges have requested more time from TIDC to research the project, but apparently, Ellis was not on board with this delay.

Today, I was provided with a copy of TIDC's Recommendations for a Unified Harris County Managed Assigned Counsel Program, a 22 page write up of TIDC's ideas of how the new MAC should be implemented and run.  Although it is doubtlessly well-intentioned, I have numerous concerns about how it would work in Harris County.   In no particular order, here are some of the biggest ones.

1.  The MAC should oversee the appointment and payment of counsel in all misdemeanors and non-capital felonies, as well as appeals and post-conviction matters.  A MAC can also oversee appointments in specialty courts.

So, two big things jump out in this particular recommendation.  The first being that the MAC system will oversee not just the appointment of counsel, but also the payment of counsel.  As it currently stands, when an attorney submits a voucher for the work done on an appointed case, the Judge of the court must approve it, edit it, or reject it.  Generally, that's a pretty good system because, you know, the judge actually observed the attorney handling the case in his or her court.  The MAC system is going to turn over what payments are made to an entity that isn't in court handling the case.  In essence, this is pretty much the same premise as a person's insurance company deciding what medical procedures a person needs, rather than the doctor.

The second issue is that TIDC also wants the MAC to decide who can do specialty courts (i.e., Mental Health Court, Veteran's Court, Responsive Interventions for Change Court, etc.)  These particular courts rely on a stable of attorneys who practice solely in those courts on a daily basis.  These are courts that can be complicated as they are designed to rehabilitate rather than incarcerate defendants.  In these courts, it is absolutely critical that there are long term attorneys who are handling the caseloads and are familiar with how the courts work.  A MAC System that assigns a revolving door of appointments to random defense attorneys would be extremely counterproductive.

2.  Attorneys will generally be assigned to cases on a rotational basis, taking into consideration attorney experiences and expertise.  Investigators will be assigned to cases when requested by attorneys.  Experts will be approved by the MAC when requested by attorneys.

Attorneys being assigned on a rotational basis ensures that every attorney on the appointment list actually gets an appointment every now and again.   The rationale for this being that some attorneys get appointed on more than their "fair share" of cases, while some are never getting called.  This rule is designed to be fair to all of the attorneys.

Here's a spoiler alert:  the Indigent Defense System is not designed to make sure that attorneys are treated fairly; it's there to make sure that the CLIENTS are treated fairly.  Attorneys who get more appointments just might be getting more appointments because more judges have confidence in those attorneys' abilities.  If an attorney is on the list and never getting an appointment, one might want to know if the reason is that judges don't have faith in the attorney to do a good job.  Appointed attorneys are taking a client's life into their hands -- it isn't time to make sure that everyone gets a participation trophy.  Would you be comfortable going into heart surgery and being told "Well, Dr. Smith is the best heart surgeon in Houston, but we're giving you Dr. Jones because he hasn't gotten to do heart surgery lately."

As it currently stands, when a defense attorney wants an investigator or an expert on his or her case, he files a motion with the court for approval of funds to hire an expert.  Those are routinely granted and the defense attorney may then pick the investigator or expert of the attorney's choice.   I've been a lawyer now for 20 years and 11 of those have been as a defense attorney.  I tried a lot of investigators over several years before settling on the one I now use on ALL of my cases.  I've also identified and continue to use DNA experts, psychological experts, mitigation experts, and other experts that I know do a good job and I can trust.

Under this proposal, the MAC would have the power to deem whether or not I was worthy of an investigator or an expert.  If I was to be so blessed by this government entity to receive approval to have an investigator or expert, the MAC would then assign me one of their choosing.

This falls under the category of "are you f'ing kidding me?"  As a lawyer, my duty is to the client and to provide the best defense possible.  This includes me using my knowledge and discretion to choose the personnel needed for the case.  What if I have a personal conflict with the investigator?  Or I just know that investigator doesn't do a very good job?  Tough luck.  The relationship between an investigator and an attorney is absolutely critical.  My investigator (although obnoxious) does an amazing job for me on all of my cases and he's self-directed.  I couldn't get by without him and I don't want to work with anyone else.  That's not a slight to other investigators that I've worked for.  We just work well together.  (Don't get a big head, Roy.)

The idea of the MAC being the decider of "if" and "who" on investigators and experts is obscene.  Period.

3.  [The MAC will employ] Supervising attorney [to] assist assigned attorneys and ensure assigned attorneys are providing high-quality defense services.  Supervising attorneys should do such things as:  observe attorneys in court and trial and provide feedback on their performance; assist attorneys in preparing for trial, strategizing elements of cases and answering legal questions; serve as second-chair; respond to an investigate complaints about attorneys from judges, clients, and client family members; ensure attorneys are visiting clients at the jail; and conduct annual attorney performance reviews.  Supervising attorneys should also document attorney performance deficiencies, complaints, and disciplinary matters in the attorney's file, as well as begin any necessary proceedings to move an attorney to a lower level appointment list or remove an attorney from the appointments list due to not meeting the MAC's standards of attorney performance.

I don't even know where to begin with this part. So, the MAC will be staffed with "supervising attorneys" who will, in essence, serve as employers for all of the attorneys who take appointments.  They will give performance evals and keep a disciplinary file on us.  Um, a  disciplinary file?  Isn't that what the State Bar is for?

And the Supervising Attorney is going to investigate complaint's from the "client family members?"  Here's a newsflash, TIDC.  Lawyers don't owe a duty to a client's family members -- many of whom are verbally abusive, unreasonable, and not entitled to know a damn thing about a client's case without the client's permission.

More troubling is that the MAC's Supervising Attorney will be an appointed attorney's de facto second chair.  So, not only does an appointed attorney get a random investigator and expert shoved down his or her throat, he or she also gets a mandatory second chair that he or she may or may not even know.  Sounds great!  I look forward to seeing what supervisor I'm going to get.  I wonder who will be supervising Skip Cornelius or Tyrone Moncriffe or Danny Easterling.

I find this portion to be so amusing because the whole idea of the MAC is to make sure every lawyer on the appointment list gets an appointment, but the ones who will be appointed on every case will be the MAC lawyers.  Nice.

At the risk of sounding like the kid who is threatening to take his ball and go home, I've got no interest in continuing to do appointments under the MAC System.  I can't imagine any attorney with a significant amount of experience agreeing to work under those circumstances, either.  If the System runs off the experienced attorneys, guess who that leaves?

If the MAC System is implemented in a manner that even vaguely resembles these suggestions, the quality of Indigent Representation will fall and fall dramatically.