Lawrence attorneys are worried a state plan to save money by awarding contracts for criminal-defense work could lead to inferior, factory-style justice for Douglas County’s poorest defendants.

They also say the proposed changes could shut longtime defense attorneys out of the courtroom and leave them scrambling for work.

“People are scared, plain and simple,” said Elbridge “Skip” Griffy IV, president of the county’s criminal-defense bar association. “It’s just an awful, sad commentary on the whole system when the type of legal representation a person is going to get really boils down to the amount of money they have.”

Others say the state is retaliating against Douglas County because local defense attorneys have been complaining of low pay and, in recent months, filing legal challenges to the system.

A state official, however, said the plan was a simple effort to control the costs of criminal-defense work in Douglas County. A letter she sent to a Douglas County judge last month said attorneys’ fees in the county were 46 percent higher per case than the state average last year in some felony cases.

“When we see the price per case going up, it’s our job to examine that and to do what we can to contain that,” said Patricia Scalia, executive director of the Kansas Board of Indigents Defense Services in Topeka. “That does not in any way compromise the assistance of counsel.”

It’s estimated that up to 90 percent of people charged with a crime can’t afford an attorney.

Douglas County, unlike Shawnee County and other large Kansas counties, has no public defender’s office. Instead, for years the county has used a felony “appointment panel,” a list of about 20 private-practice attorneys, chosen by local judges, who are paid by Scalia’s agency.

Younger attorneys, often recent law-school graduates, work their way up to the felony appointment list after gaining experience on misdemeanor cases, which are paid by the county.

Elbridge Skip Griffy IV speaks with a client in his law office at 901 Ky. Griffy, who is president of the county's criminal-defense bar association, and others are highly critical of a new plan to award contracts for criminal-defense work, which they say could lead to inferior assistance of counsel for people who cannot afford an attorney.

Attorneys on the felony panel are paid $50 per hour, though most of that is consumed by the overhead costs of running a law office. They’re only allowed to bill for so many hours, depending on the severity of the case and whether it goes to trial. In some cases a judge can overrule the limits and let the attorney submit a bill for a higher amount, but even then the state doesn’t always pay them in full.

Griffy and colleagues got upset last week after receiving a letter from Scalia announcing that she wanted to start contracting out the defense work in the county’s lower-level felony cases. In a letter attorneys say they didn’t get until Tuesday, Scalia asked any attorney who was interested to make an offer by no later than Friday. She asked them to send a summary of their experience and proof of malpractice insurance.

Scalia said in an interview she envisioned the proposal would affect about 500 low-level felony cases in Douglas County in the next year. The contracts would be split among four or so attorneys, each of whom would agree to handle no more than 150 cases at a fixed amount per case, she said.

It’s illegal for the state to award such a contract based only on the low bid, Griffy said. But he said he worried that’s what the state was trying to do.

He and others fear that paying attorneys by the case will create an incentive for them to do poor, unaggressive work on some cases, which would violate defendants’ right to effective assistance of counsel.

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“The less time an attorney spends, the more money he or she makes,” defense attorney Jessica Kunen said of the contract plan.

Details sketchy

Attorneys also say they’re angry they didn’t get earlier notice of the proposal. On Friday, the local bar sent Scalia a letter asking for more details and more time to submit proposals.

“It sounds to me like they’ve already picked somebody,” said Lawrence attorney Stephanie Haggard.

Some, including the county’s chief judge, Robert Fairchild, say they’re confused about exactly what Scalia wants to do. Fairchild said local judges planned to meet with Scalia this week to discuss the plan.

He said he was not necessarily opposed to the idea of contracting for cases. But he said he was worried that putting so many felonies in the hands of a few attorneys would cause “scheduling nightmares” at court and be unfair to longtime local attorneys who supplement their income by taking appointed cases.

“It’s not their high-profit stuff, but a lot of people have been dependent on this, and it’s going to be pretty hard on them if it goes into effect,” Fairchild said.

Griffy is a good example of that situation. He’s been on the appointment panel the past six years and estimated that between 80 percent and 90 percent of the work he did in the past year was appointed work.

Retaliation “nonsense”

Scalia’s request comes three months after Lawrence attorney Greg Robinson successfully challenged a 25 percent cut her agency made to a bill he submitted in an unusually complex second-degree murder case.

Robinson submitted a bill for about $20,000 for 400 hours of work in the Timothy Harrell case but was paid $15,000. After Robinson sued, Douglas County Judge Michael Malone, who approved the original bill, ordered Scalia’s agency to pay the full amount.

Attorney Kunen said she thought the change was meant to “save Ms. Scalia the annoyance of having to deal with local assigned counsel.”

A 2000 study by the U.S. Department of Justice’s Bureau of Justice Assistance found that in the past 15 years, systems of contracted defense attorneys have become more common nationwide. In some cases the system has been put in place after legal challenges similar to Robinson’s.

“In Mississippi and Oklahoma, successful challenges to the system for paying assigned counsel led defense attorneys to believe they would be better compensated for their work,” the study found. “Instead, contracts replaced many case-by-case assignment systems, nullifying the impact of the court decisions.”

Scalia declined comment about Robinson’s case because she’s asked Malone to reconsider his ruling. But she said the claims that she’s tired of dealing with Douglas County were “nonsense.” She also pointed out that, to no avail, she’s asked the Legislature in recent years to increase the hourly rate to $80.

Quality control

Scalia said her plan for Douglas County would eliminate the financial uncertainty of the appointment system and help her agency budget for the year ahead. Other counties, such as Shawnee and Johnson, have contracts for defense attorneys, and she doesn’t hear complaints about them, Scalia said.

Judge Nancy Parrish of Shawnee County District Court said contract attorneys handled cases there when there was a conflict of interest for both the local public defender’s office and a backup state office. She said the quality of their work hasn’t been a concern.

“We’ve had zealous representation from the contract defense counsel,” she said. “It may depend on who it is that’s chosen.”

The 2000 federal report found that, in worst-case scenarios, a contract system can put cost savings before quality, create incentives to plead cases early, and lead to skimping on pre-trial investigative services, among other concerns. One way to make the contract process work, the report found, is to have an application process that gives specific guidelines and standards for the work that’s to be done and how it will be evaluated.

Attorneys say that’s not what they got from Scalia.