Eroding Gideon 2: Damage Control For the AOC

Anyone who pays attention could see this coming.  First the Tennessee Supreme Court issues an Order placing indigent defense representation on a flat fee, contract system at the AOC’s behest.  They pass this Order Amending Rule 13 without request for public comment because the last time they asked for professional opinions they got four hundred pages worth of comments saying this was a Very Bad Idea.  The AOC then pats themselves on their collective backs, marveling at the savings to the state.

Then the attorneys start calling with questions, and many are angry because they heard about this new Order from someone else.  If that wasn’t bad enough, then those damn reporters start calling with their stupid questions, wondering why Clarence Earl Gideon’s dream is now “justice to the lowest bidder” in the Volunteer State.  People start murmuring, and those murmurs are ugly.  In these situations, there’s realistically only one thing a bureaucrat can do: Issue a public statement.

And yesterday, everyone paying attention got to read the most disingenuous tripe the AOC could muster.

Here’s the press release in its entirety: http://www.tba.org/sites/default/files/Rule%2013%20amendment%20information_12032014.pdf

The AOC brass start their “sorry not sorry” with a helpful, educational bullet list.  You know, because the people who matter don’t take the time to read everything, and the people who actually do read it don’t have the stroke to change anything.

To clarify what this amendment does and does not do:
Rule 13 amendment DOES:
*Authorize the AOC to enter into one or more contracts for representation of indigent
parties in child support contempt, judicial hospitalization (emergency involuntary
commitments) and child welfare cases (dependency and neglect and termination of
parental rights)
*Authorize contracts with individual attorneys, firms, or an association of attorneys
*Require the AOC to monitor the use of any such contracts for their effectiveness in
providing quality legal representation and to annually report its findings to the Supreme
Court.

Oh, spiffy.  We already knew that, AOC.  I’m especially impressed you’re going to take the time to monitor contracts for their effectiveness, especially when the men and women of this state who tirelessly work for indigent defendants already told you back in 2011 this wouldn’t be effective and actually tank the quality of representation.  You even said so yourself in a report to the Tennessee Legislature back in 2010.  I wonder if you’ll be happy to report in your findings the system didn’t work next year…or if it will be all about the savings to the state.

Rule 13 amendment DOES NOT:
*REQUIRE the AOC to enter into any contracts for any of the listed services
*Authorize the AOC to contract for representation of indigent defendants in criminal
cases
*Contemplate that a large firm or association of attorneys will displace lawyers
currently doing indigent work in any location and certainly not statewide
*Require the AOC to engage in a bidding process for contracts or to award contracts
based on a low bid

Now this is where things get interesting.  The AOC isn’t “required” to enter into contracts for the listed cases, but they’re going to do so anyway.  They don’t “contemplate” that an “association of attorneys will displace lawyers currently doing indigent work in any location and certainly not statewide.” And they’re certainly not required “to engage in a bidding process for contracts or…award contracts based on a low bid.”  Dear readers, if you’ve witnessed the AOC spew a greater load of horse shit than this I’d love to read or see it.

Of course the AOC isn’t “required” to enter into contracts.  They weren’t before, and they didn’t have to now.  They chose to do it because it would save the state a buck or two.  They’re not “required” to engage in a bidding war and take the lowest bid, but that’s the point of a contract system. The purpose of contract bids (known as a “request for proposal” or “RFP”) is so the governmental agency looking for a service provider can identify who provides the service for the cheapest amount of money and use them.  Will a “large firm” get that bid?  Probably not, because that would give the AOC a black eye and the tacit impression they’re using BigLaw to handle the problems of all the little people. The contract system is creating an “association of attorneys” that “will displace lawyers currently doing indigent work…statewide” because you’re limiting representation to those who actually get the government award.  If you think otherwise, you’re delusional or place too much faith in humanity.

With the above quote, note the Amendment does NOT “Authorize the AOC to contract for representation of indigent defendants in criminal cases.”  That, dear readers, is where the AOC gets to tout the “we’re doing right by the common man” and sidestep the Gideon argument.  As long as we’re not putting those the State has charged with an actual misdemeanor or felony at risk of losing competent representation, then everything is just spiffy.  Two problems here: First, the recent TBA survey mentioned on this very blog notes child welfare cases receive as many appointments as criminal cases.  Second, the AOC tried this back in 2011 WITH criminal cases, and the November 19th Order signed by the Court even mentions the Court’s discretionary decision to try the contract system with other cases in the future.

Again, if you don’t think every case will eventually be covered under this new system, you place way too much faith in humanity.

Ever the scions of “cloud the issue,” the AOC next takes steps to show just WHY those damn attorneys made this program necessary.  They start with the Davidson County Child Support “pilot program:”

The Davidson County pilot project was undertaken, in part, because average fee claims for
child support representation there exceeded the statewide average for those cases by a
significant amount.

Of course there’s a possibility that Davidson County is a really big place, since it’s where the state Capital is located, and there’s a possibility those claims exceeding the “statewide average…by a significant amount” could be due to the number of Defendants at risk of jail time for failing to pay child support.  But hey–let’s talk about how much lawyers bill instead.

And, of course, the AOC is happy to do that.  Let’s talk about Shelby County next.

One of the first areas that the AOC will be addressing with the use of contracts is
representation of individuals in judicial hospitalization cases in Shelby County. Over the years,
the overall cost of that representation has been very high, even though individual fee claims
admittedly have not. This is the result of a system that by design may have attorneys billing for
repetitive tasks in increments that, although small, nonetheless appear to be a distortion of
the time actually needed to complete the tasks being billed. (my emphasis–CLS)

Of course attorneys bill for repetitive tasks in small increments.  The AOC requested attorneys stop billing in “block time” for the work done on a case back in 2012.  Every time we have to stop and write down “compiled order: .1 hours” instead of actually detailing what we did for the last half hour of work, it’s repetitive by nature.  The lawyers who follow instructions are damned if they do and damned if they don’t.

For example, attorneys typically bill one-tenth (0.1) of an hour to prepare the order appointing
that attorney to the case. This sounds more than fair until one realizes that the order is a
single document that simply lists the names of anywhere between 20 and 30 clients who have
hearings scheduled for the same day. Billing at this rate results in a claim by the attorney that he/she spent between 2 and 3 hours preparing a 1 page document and making additional
copies for each case. That task likely takes only a few minutes total. (again, my emphasis–CLS)

This part makes me shake with anger.  Those of us who work in private practice are already familiar with client fee disputes; we regularly slash hourly charges just to give the client a break and avoid accusations of overcharging.  When the governmental agency paying us begins haggling over tasks we have to complete to get paid–after we do it in the manner they tell us to use–there’s no point in even attempting to bill.  The agency allegedly sympathetic to how indigent defense attorneys work have become the petulant client whining about being charged an extra five dollars for copy costs.

What about the complaint this new contract system will rob judges of their power to appoint the best attorney possible to a case?

Judges will continue to have the discretion to assign attorneys, but only attorneys who have
agreed to do this work on these terms will receive appointments.

Now we’re getting into “is” level semantics.  A judge can still “assign” an attorney, but said lawyer will be expected to do the work for free unless they get on board the contract train.  Here’s the thing: judges were attorneys once.  They know what it’s like to do work and not get paid.  They’re not going to ask attorneys to represent clients pro bono unless the attorney is willing to do so, and that’s not likely when the attorneys have families to feed.

Oh, and the part of that sentence after the comma just completely negated the AOC’s lack of a “contemplation” that an association of attorneys will replace indigent defense counsel statewide.  I hope every one of you reading this noticed that little boondoggle.

So we enter into contracts.  We submit an invoice to the state showing we are appointed to the docket, and we get confirmation from the judge that the cases are ready to be paid.  Then the check comes in, right?

Because an invoice does not require auditing, attorneys will be paid faster. They will, without a doubt, be paid less than they currently are, but the AOC believes they will receive reasonable compensation for the time truly spent on a docket. (my em…oh, you get it by now–CLS)

And here’s the fun part.  Attorneys working under the contract system will get the money the AOC believes is reasonable, for the time they truly spend on a docket, but they will, without a doubt, get paid less than the current $40 per hour out of court/$50 per hour in court rates that are among the lowest in the nation for those who provide indigent defense representation. That’s the AOC’s biggest goal: pay the attorneys who work for those who can’t afford reasonable attorney fees less than reasonable rates.

The “official statement” closes with a lovely nugget showing how the AOC paying attorneys less now will result in a brighter, better future:

The goal is not to displace attorneys who currently do the work; the goal is to manage the
resources given to the indigent fund by the legislature in the most efficient way possible. When
we can demonstrate this, our requests to the legislature and to the administration for
additional funds to increase rates of compensation are much more likely to be favorably
received.

Take one for the team now, and maybe, just maybe you’ll get paid more later?

No wonder attorneys are leaving indigent defense representation in droves.

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