Phila. Conflict Counsel Contract Set to Be Awarded

, The Legal Intelligencer

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Philadelphia City Hall

The city of Philadelphia has named the lawyer to whom a contract is set to be awarded for the creation of a for-profit firm to represent indigent defendants in criminal cases where the Public Defender's Office has a conflict.

Criminal defense attorney Daniel-Paul Alva of Philadelphia-based Alva & Associates has been named as the "chosen candidate" on the city's notice of intent to contract listed on its "e-contract Philly" website Friday.

The notice did not specify as to whether Alva and the city had signed the contract as of yet. As of press time, Alva said he could not comment. Deputy Mayor Everett Gillison, managing director Richard Negrin and Director of Public Safety Michael Resnick did not respond to calls and emails seeking comment.

The request for proposals for the contract has been the subject of extended debate among City Hall officials and members of Philadelphia's legal community. Questions were raised not only about the viability of the proposed firm, but also the transparency of the RFP process.

In particular, city Councilman Dennis O'Brien has been a staunch opponent of the notion of a for-profit legal entity representing indigent defendants.

Of the notice of intent, O'Brien told The Legal, "This is a nuclear meltdown of the system." O'Brien added that his office would be evaluating legal options such as pursuing the matter in state or federal court.

"I'm disappointed, I thought we would have an opportunity to review this," O'Brien said. "The arrogance that they're going to do this without giving any word to council is outrageous."

In a Dec. 18 letter addressed to Mayor Michael A. Nutter provided to The Legal by O'Brien's office, O'Brien urged Nutter to restart the conflict counsel process.

In the letter, O'Brien referenced a ruling by the U.S. District Court for the Western District of Washington outlining the responsibility of local governments to provide indigent defense. He said in that ruling the court ruled two cities "were responsible for the systematic deficiencies that deprived the indigent of their constitutional right to meaningful representation."

According to O'Brien, the court in Wilbur v. City of Mount Vernon found deprivations in constitutional rights, flaws with a flat-fee contract method, and absence of supervision and performance standards in those cities' indigent defense programs. O'Brien added that the proposed system in Philadelphia was on a similar path.

O'Brien also pointed out in his letter that several witnesses who testified at the Oct. 7 city council law and government committee hearing found similar deficiencies in the proposed model.

The Legal reported that at that hearing, Gillison defended the proposed legal organization.

"We're looking at a model for delivery that will provide for the city," Gillison said before the committee. "This matter, I believe, will be a good thing for the legal community and for poor people in general. I know what all the concerns are; a lot of them, I think, are completely unfounded."

O'Brien alleged during the hearing that the entire RFP process lacked transparency and significant communication between Gillison and the council about the specifics of the project.

"I personally made phone calls to you and they were not returned," O'Brien had said to Gillison. "Emails were sent to you and they were not recognized. ... I have yet to see that proposal." O'Brien also questioned why the contract would only be awarded for one year, as many criminal cases take more than a year to resolve. Gillison had responded that the city charter prevented a multiyear contract.

Gillison had maintained that the process was undertaken with transparency, but certain aspects of the RFP could not be discussed.

"We have tried to be as apparent and overly transparent as possible," Gillison had said. "This is a process that has been extremely inclusive and extremely collegial. What I'm trying to do is solve a pressing issue we have before us."

In response to questions regarding the quality of attorneys who would potentially serve in the conflict-counsel organization, Gillison had said that most of the attorneys considered for the project possessed the requisite background and experience to do the job. He had also noted that attorneys with disciplinary records would not be precluded from serving as conflict attorneys in the proposed organization.

Several lawyers serving as witnesses testified to their skepticism at the proposed arrangement during the hearing.

Jeffrey Lindy, managing partner of Lindy & Tauber and a Criminal Justice Act panel attorney, had said, "The idea stinks, it's wrongheaded, and it's not going to work."

Lindy said in his written testimony that due to the inadequate funding of the project, "attorneys in the [conflict counsel] firm will start cutting as many corners as possible to meet the bottom line, meaning to make the work worth doing."

That, Lindy had concluded, would negatively affect the quality of representation afforded to indigent defendants.

Chief public defender Ellen T. Greenlee of the Defender Association of Philadelphia had also expressed concerns over the proposed for-profit system.

"The temptation will always exist to move cases along, to seek quick disposition, to save the expense of investigation, mitigation [and] hiring experts," she said in her written testimony.

P.J. D'Annunzio can be contacted at 215-557-2315 or pdannunzio@alm.com. Follow him on Twitter @PJDAnnunzioTLI.

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