Lawyers, County Break Contract to Defend Poor, Deflecting Suit

In an agreement that could defuse a constitutional challenge to San Diego County’s system for defending indigents accused of crimes, an El Cajon law firm will withdraw from a $175,000-per-year defense contract that legal experts had criticized as denying the poor basic representation.

The county Board of Supervisors agreed to the understanding in a closed meeting earlier this month--just weeks before a trial was scheduled to begin in a civil lawsuit alleging that the county, in an effort to minimize the costs of indigent defense, had set defense lawyers’ financial interests against their clients’ legal interests.

The lawsuit, filed in 1983 by the nonprofit Defenders Inc. law group, had prompted criticism from leading national legal organizations, including the American Bar Assn. and the National Legal Aid & Defender Assn., of San Diego County’s $8 million-per-year contract defense system.

Through the system--the largest of its kind in the United States--the county contracts with private attorneys for indigent defense services, similar to those that 43 of the nation’s 50 largest counties provide through a public defender’s office.

Under the agreement, the Milloy Group, a six-member law firm that since 1983 has represented 2,500 to 3,000 defendants per year in misdemeanor criminal cases in the El Cajon Municipal Court, will withdraw from its county defense contract Feb. 28, four months before the three-year pact was due to expire.

The county and Defenders Inc., in the meantime, agreed to postpone a trial in the case until April--by which time the Board of Supervisors will have received, and perhaps acted upon, a report from a blue-ribbon commission of San Diego civic leaders that is studying ways to reform the county’s defense system.

If the supervisors opt to replace the contract system with a public defender, or to bar the types of contracts that prompted the lawsuit and the national criticism, the suit would be moot and a trial almost certainly would not take place, according to lawyers involved in the case.

“It really is a political question rather than a legal question,” said Melvin Nitz, director of the county’s Office of Defender Services, which runs the contract system and operates a limited public defender office for the most serious felony cases.

The agreement marks the second time in less than three months that a contract defense group under fire by some members of the bar and the judiciary has lost a contract with the county.

In October, the county canceled its $430,000, three-year contract with the Traffic Defense Group, which represented thousands of indigents in traffic court over a 28-month period. Judges and some lawyers had complained that the group was mismanaged and sometimes provided defense that fell short of minimum standards of competence.

In the current lawsuit, Defenders Inc., a bar-sponsored law firm whose share of the indigent defense caseload has shriveled under the contract system, alleges that the county’s 1983 contract with the Milloy Group has flaws that “go to the heart of the accused’s right to effective, conflict-free counsel.”

Under the contract, the group is paid $62.50 per misdemeanor case, regardless of whether the case goes to trial or requires pretrial investigation to bolster the accused’s defense.

Defenders Inc. has argued that such terms give defense lawyers a financial incentive to dispose of cases quickly, contrary to their clients’ interests.

According to Nitz, at least two other major county defense contracts contain similar terms. Those contracts are not directly affected by the Defenders Inc. suit but could come under study as the county completes its comprehensive review of the contract system.

The ABA, the State Bar of California and the National Legal Aid & Defender Assn. have all adopted guidelines recommending against such provisions in indigent defense contracts. Studies conducted by the groups concluded that contract systems across California and the nation were rife with conflicts and potential conflicts between lawyers and indigent clients.

J. Parkeson Miller, a partner in the Milloy Group, said Monday that he, too, agreed that the group’s contract with San Diego County inherently created an incentive to dispose of cases quickly. But he said the Milloy lawyers had resisted the inclination to shortchange clients.

“I think our performance has been extremely good, but I think it has cost us from the financial standpoint a lot of money to assure that performance,” he said.

Court statistics showed that the group conducted just 12 jury trials last year (but has represented 2,500 to 3,000 defendants a year since 1983).

Nitz said the agreement by which the Milloy lawyers will withdraw from their contract was not an indication that the county was dissatisfied with their performance or that clients should question the quality of the representation they received.

“I think they’re just tired of the harassment,” he said, explaining the group’s willingness to walk away from its contract.

According to Miller, judicial dissatisfaction with the contract system and articles in the national legal press criticizing San Diego County created the impetus to move toward resolving the lawsuit.

“It was putting the county of San Diego in a bad light nationally, irrespective of the truth or falsity of it,” he said.

A panel of lawyers will handle misdemeanor cases in El Cajon on a rotating basis until supervisors decide if the county will retool its indigent defense system, Nitz said.