Testimony Of Kathleen D. Wilkinson
Chancellor, Philadelphia Bar Association
Before City of Philadelphia City Council Committee on
Law and Government
Monday, October 7, 2013
INTRODUCTION AND BACKGROUND
Chair Greenlee, Vice Chair Kenney and Members of the Law and Government Committee:
Good morning. I am Kathleen Wilkinson, Chancellor of the Philadelphia Bar Association, which represents over 10,000 members of the legal profession in our city.
The Sixth Amendment to the United States Constitution, which came into effect in 1791 when Philadelphia was our nation’s capital, provides, in part, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.”
The United States Supreme Court has interpreted the Sixth Amendment to guarantee defendants in criminal proceedings the right to appointed counsel, the right to effective representation and the right to conflict-free representation.
Conflicts of interest in criminal representation most frequently occur when the same attorney represents multiple defendants in a criminal case. The conflict occurs because in the course of preparing a defense, the receipt of information, possibly protected by the attorney-client privilege, would require representation of one client in a way that may disadvantage the other. Such conflicts occur when one defendant implicates the other, one defendant’s culpability may be greater than the other, or one defendant’s defense is inconsistent with that of the other defendant.
In such criminal representation matters, where the defendants are unable to afford counsel and the Defender Association of Philadelphia takes on representation of one defendant, it is essential that other defendants in the case have access to representation of the same caliber as they would have received had there been no conflict.
In dependency proceedings, Pennsylvania law guarantees both parents and children who are subject to such proceedings a right to court-appointed counsel. The conflicts that can arise by representing multiple family matters in dependency proceedings are obvious.
Similarly, in juvenile justice proceedings, conflicts may arise where multiple juveniles face charges stemming from the same event.
For decades, the Philadelphia Bar Association has been concerned with the quality of representation afforded to individuals who cannot afford counsel and who cannot obtain legal representation through the Defender Association of Philadelphia because of conflicts.
CONFLICTS COUNSEL AND BEST PRACTICES MODELS
Last fall, the City issued a Request for Proposals seeking “proposals from qualified firms or entities for the purpose of providing legal representation for indigent criminal defendants, and other litigants, in the City of Philadelphia where the Defender Association of Philadelphia is prohibited from providing such representation due to the existence of a conflict of interest.”
I immediately appointed a task force of experienced practitioners to study the issue and give me guidance on this topic. In addition, the Philadelphia Bar Association has historically kept up with nationwide developments in this field.
As a result, the Philadelphia Bar Association has urged and continues to urge the City to pursue “best practice” models of representation, training and support for providers of legal representation where conflicts exist.
It is essential that any proposal accepted by the City must assure the provision of high-quality legal practice, sufficient social services, investigative support, professional training, supervision, and reasonable caseloads and compensation that allow and encourage best practice representation. Further, any program accepted by the City must be able to show how these best practice standards will be met and must be able to report to the City whether these standards are being met periodically through the life of the contract.
Specific standards were communicated to the City in my letter of February 20, 2013 to Deputy Mayor for Public Safety Everett A. Gillison, and this letter is attached and included with my testimony here today.
Many resources are available to guide the development of practice standards, caseload limits and models of compensation. The best practices models I am about to discuss are attached to the written submission of my testimony. A number of jurisdictions have implemented these best practice models with success, some even with long term cost savings.
For dependency representation, the American Bar Association has developed Standards of Practice for attorneys representing children, parents and agencies in child welfare cases. In 1997, the Philadelphia Bar Association’s Board of Governors, following the recommendations set forth in the ABA Standards of Practice, urged the First Judicial District to implement “a system of appointment and compensation of court-appointed private counsel for parties to dependency and adoption proceedings which:
• Limits eligible lawyers to those who are qualified to represent such parties, in accordance with standards of practice which reflect the American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases and other similar national and local guidelines, and which representation at a minimum requires: appearance at, preparation for and participation in all court hearings and conferences; attendance by the attorney (or a qualified representative) at Family Service Plan meetings and other service planning sessions; and fieldwork for investigations, client interviews and service provider contacts;
• Sets caseload limits not to exceed 110 cases per lawyer;
• Assigns lawyers and makes appointments on a fair, impartial and sequential basis;
• Compensates attorneys for representation services throughout the term of appointment, at levels which reflect the numbers of sibling children involved in and the complexity of the case, and includes both in-court service and out-of-court preparation, participation in case reviews and post-dispositional hearings and involvement in appeals, at a rate not less than $500 per case per year.”
Fifteen years later, these standards have not been met. The City must ensure that any program accepted for conflict representation meets or exceeds these goals through actual performance standards.
JUVENILE DELINQUENCY REPRESENTATION
For juvenile delinquency conflict representation, we urge the City to require that any program put in place complies with the Interbranch Commission on Juvenile Justice’s Pennsylvania Performance Guidelines for Quality and Effective Juvenile Delinquency Representation. The Interbranch Commission was tasked with developing these Performance Guidelines to reform the juvenile justice system in Pennsylvania to avoid a reoccurrence of the Luzerne County scandal.
The Performance Guidelines incorporate the American Council of Chief Defenders’ caseload recommendations that attorneys with a mixed caseload of misdemeanors and felonies handle no more than 200 cases per year – and fewer for attorneys handling more complex matters such as sexual assaults, mental health proceedings and cases which may be transferred to adult court.
Representation of youths in delinquency proceedings is a special craft, as the negative consequences of juvenile correction can profoundly affect the lives of these youths well into adulthood.
For criminal matters, it is imperative that any new program for conflict cases must, at minimum, meet the standards that have been established by the American Bar Association’s “Ten Principles of a Public Defense Delivery System.” The Ten Principles have been endorsed by the Pennsylvania and Philadelphia Bar Associations. Further guidance is provided by the American Council of Chief Defenders “Statement on Caseloads and Workloads.”
Together, these two best practice models ensure that a conflicts counsel system will provide effective assistance of counsel as guaranteed by the Sixth Amendment, as well as minimum mandates regarding the training and supervision of defense counsel.
The workload mandates found in the Statement on Caseloads and Workloads are of considerable importance to guarantee effective representation for every defendant. The standards recommend that a full time lawyer not be assigned more than 150 felonies, 400 misdemeanors, 200 juvenile cases, 200 mental health cases or 25 non-capital appeals. Similar to juvenile delinquency cases, the standards recommend that these numbers be lowered when more complicated cases are involved.
There are several possible models of delivery of conflicts representation in criminal matters. One would be similar to the current Defender Association of Philadelphia, where efficiency is realized through assignment of lawyers by zone and courtroom. Another option would be an office comprised of part time experienced criminal law practitioners, each handling a separate caseload. A third approach would be to adopt the federal court model, where experienced criminal defense lawyers are certified by the Defender Association and paid for their services on an hourly basis.
Homicide representation poses a particular challenge. Any new program for conflict cases must take into account the large number and complexity of such cases, and the high cost inherent in providing effective representation to the accused.
As currently contemplated, effective delivery of conflicts representation in all matters will have to be achieved through efficient expenditure of a fixed allocation of funds. From this pool of money, the new program will have to pay attorney salaries and cover the cost of social workers, expert witnesses, support staff, office space, malpractice insurance, investigations and other expenses related to running a law office.
Non-profit and for-profit models have been developed for delivery of conflicts representation in other jurisdictions across the country. Of course, with for-profit models, the need to make a profit places added pressures on achieving quality representation within a fixed budget. Whichever model is chosen, the Philadelphia Bar Association is primarily concerned that the rights of the accused are protected, as guaranteed by the Sixth Amendment to the Constitution.
Thousands of Philadelphians are directly impacted by conflicts counsel representation every year. In addition, there were appointments for homicide cases, appeals, PCRA, probation and parole violation hearings and metal health matters. While these numbers are staggering, it is important to keep in mind that thousands more Philadelphians are indirectly impacted by conflicts counsel representation as victims of crime, witnesses and family members of the accused.
With so much at stake, it is critical that the City carefully ensure that any new program for representation where conflicts exist takes into account the well-considered best practice models that have been developed and implemented across the country. Should any contract(s) be reached, they should incorporate reference to the standards referenced in the ABA Standards of Practice for Attorneys Representing Children in Abuse and Neglect Cases; the ABA Standards of Practice for Attorneys Representing Parents in Abuse and Neglect Cases; the Pennsylvania Performance Guidelines for Quality and Effective Juvenile Delinquency Representation; and the ABA Ten Principles of a Public Defense Delivery System. They should also spell out specific performance measures and outcomes. Any such contract(s) should also contemplate whether any additional legal representation beyond the scope of the contract may be handled, along with the individual caseload limits for a given attorney. The Philadelphia Bar Association stands ready to contribute our expertise going forward and to assist the City in this effort. Thank you for the opportunity to provide this testimony.