Strike 6: New lawsuit hits in San Mateo County, California

Pleading the Sixth: For years, the San Mateo County Private Defender Program has been touted as one of the best in California. But several reports over the years and a new lawsuit filed in March call that claim into question, highlighting the program’s persistent problem in complying with national and state standards. If what is alleged is true, this is Strike 6 for California.

California is responsible for ensuring that every person facing incarceration is provided effective representation. But a new lawsuit filed last month against the San Mateo County Bar Association (SMCBA) by one of its members alleges a continued failure to provide adequate oversight of indigent defense services. Like Santa Cruz and Lake counties before their recent reforms, the absence of state oversight allows counties to contract with entities to require qualified, trained, and supervised attorneys for indigent defendants – but with no follow through, rendering these requirements in name only.

If what the lawsuit alleges is true, this is strike six for California.

An unusual system yields typical results

California delegates the responsibility for funding and oversight of indigent defense services to counties. Each county with a population over 500,000 provides indigent defense services through a public defender’s office, except for one—San Mateo County.

In 1968, San Mateo County began contracting with SMCBA to provide all indigent defense services, giving birth to the Private Defender Program (PDP). PDP consists of private attorneys on contract to represent appointed defendants and they are paid a flat fee per event (see fee schedule). SMCBA employs a management team to administer PDP, which includes a chief defender, managing attorneys, a chief investigator and administrative support staff. The program is overseen by the SMCBA board of directors.

Because the PDP private attorneys are paid the same flat fee per event, no matter how few or how many hours they devote to carrying out that event, it is in the attorney’s own financial interest to spend as little time as possible on each event, and therefore, case. In addition, the flat fee per event is low, creating an incentive for attorneys to accept too many appointed cases. Even with all this, the new lawsuit alleges that four PDP private attorneys individually earned more than $235,000 in 2022 on their appointed cases alone, with one other lawyer earning $366,285. The PDP management attorneys are alleged to have earned over $280,000 each, with the chief defender being compensated $362,214 in the same year.

The lawsuit lays bare that PDP historically lacks the oversight necessary to comply with its right to counsel obligations:

• A 2015 civil grand jury investigation seeking to determine whether the PDP was consistent with national and state guidelines revealed that despite the county being authorized to evaluate PDP at any time, the county conducted no evaluations of the program for nearly 10 years between 2003 and 2012.
• A 2016 report by a retired judge and former county counsel concluded that the SMCBA board of directors were failing to manage and oversee the operation of the PDP. Most notably, there were board members working as attorneys in the program, creating a conflict of interest where some were reported to abuse the system and “engage in self-promotion.”
• A 2020 follow up civil grand jury investigation  found “there [were] systemic challenges to the PDP contract model which PDP management believes limits their oversight of PDP attorneys.” Critical benchmarks like attorney workloads and quality of representation were not trackable in part due to the county contract which requires the PDP to present data of “‘performance benchmarks’…without analysis or comparison to state or national defender program benchmarks.”
• This conclusion was drawn again in a 2022 third-party evaluation, which found six deficiencies in the program, including attorneys inaccurately reporting their training hours. The American Bar Association’s Ten Principles of a Public Defense Delivery System lays out the minimum standards jurisdictions should follow to ensure they comply with the constitutional right to counsel. The six deficiencies track many of the ABA Principles, including improving the program’s data collection efforts, especially related to workload (Principles 3 & 4); increasing oversight, strengthening training and expanding supervision (Principle 7); and removing incentives of inadequate representation (Principle 5).

For California, state oversight is essential

All signs point to a near certainty that there are serious problems with indigent defense in California, from the wealthy (San Mateo County) to the urban (Fresno County) to the rural (Lake County). The constitutional right to effective assistance of counsel must be protected by taking concrete action to adequately oversee county indigent defense systems. It is imperative that California no longer delays in taking that action.