Back to Square One for Conflict Counsel Contract

, The Legal Intelligencer

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picture of man hands signing contract

The current notice of intent to contract and request for proposals issued by the city of Philadelphia to create a for-profit agency to represent indigent defendants in criminal cases has been canceled by the city.

The Jan. 3 notice of intent to award the contract to criminal defense attorney Daniel-Paul Alva of Philadelphia-based Alva & Associates was revoked by the city government Wednesday. A city official said the city will start the entire RFP process anew as a result. A date for that launch was not given.

Alva said the contract was canceled because of an error he made in the written language of the contract.

"I'm very disappointed. It wasn't canceled because of the merits of the contract, it was canceled because I made an error in the wording. And so the city revoked its intent," he said.

Alva added that he was "most sorry for the city that has gone through this process for over a year-and-a-half and the indigent who need representation."

Deputy Mayor Everett Gillison said that Alva's proposed firm was incorrectly named as an LLC, when it was not one.

"This has nothing to do with the great work he was going to do for poor people," Gillison said. "But I could not sign the paper on my desk today because of the mistake." He added that Alva had "placed the wrong entity on the documents ... and we are sticklers for following the rules."

Gillison said additionally that "we have our rules for a reason and we abide by our rules. We revoked the notice of intent to contract and the notice has been taken down ... and the city will withdraw that opportunity that has been out there for over a year-and-a-half and we will put up a new one in the near future."

Councilman Dennis O'Brien said that he was glad that the contract was going back to square one because it would give the Nutter administration a chance to revisit the plan with the constitutional rights of the indigent in mind.

O'Brien has been a staunch opponent of the notion of a for-profit legal entity representing indigent defendants since its inception.

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.

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

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