In many jurisdictions across the country, judges appoint counsel for indigent clients. Those same judges also rule in the clients’ cases, approve requests for case investigators or experts and, ultimately, sign off on payment for the defense attorney.
It is a strange way of doing things—if you want to ensure that a defense lawyer is working always with a client’s best interests first in mind, according to Norm Lefstein, professor of law and dean emeritus at Indiana University Robert H. McKinney School of Law.
And he offers an example to illustrate that it's not how we hold professionals accountable for their work in any other endeavor.
“I’ve had people out here [at my house] today…working on a problem with my furnace—imagine if they were not responsible to me [for their work], but instead that they were responsible to some third party who will give them their next furnace [repair] assignment,” he said.
Now, however, with Lefstein and a number of other influential advocates and stakeholders on board, Texas is undertaking to change that system.
The state is planning to launch a first-in-the-nation project to return control over indigent appointments to defendants, allowing them to choose their own government-paid attorneys.
Architects of the new system say they hope it will realign the interests of participants, create better lawyer-client communications—and a better defense—and increase the overall effectiveness of, and confidence in, the criminal justice system.
The program, known as the Comal County Client Choice Project, takes its cue from a 2010 Cato Institute report written by law professors Stephen Schulhofer from New York University and David Friedman of Santa Clara University, which proposed, in part, that instead of assigning lawyers to poor criminal defendants, those defendants, like their more affluent counterparts, should have the ability to choose the attorney to represent their interests.
Lefstein, a vocal advocate of client choice who has studied and written about similar systems in place abroad, has been retained by Comal County to help design the new system.
First in U.S.
It’s a relatively simple concept. But, as far as the Texas stakeholders can determine, it has never before been tried in the U.S.—though it is an approach employed by many commonwealth countries, including in England and Scotland, according to Lefstein.
That such a project had not before been tried in the U.S. seemed odd to Edwin Colfax and his colleagues at the Texas Indigent Defense Commission, which is tasked with helping the state’s 254 counties to develop and maintain effective systems of indigent defense.
“It’s our business to try to spark innovation and to work with counties that do that,” said Colfax, the commission project manager.
When the Cato report came out, the TIDC studied it carefully and began discussing if, and how, client choice might be brought to Texas.
Ultimately, the TIDC approached officials in Comal County with a plan to put the project in play.
A relatively conservative jurisdiction just north of San Antonio with a population of about 114,000, the Comal justice system was stable enough and large enough for an effective pilot program, says County Court-at-Law Judge Charles Stephens.
There are roughly 2,500 misdemeanor cases filed there each year, and between 550-625 new felony indictments per year, according to District Court Administrator Steve Thomas – not so big that any potential impact of the project would be hard to track and assess.
In Comal County, as in most every Texas county, judges appoint attorneys for indigent clients from among a list of lawyers pre-approved to take such appointments. Unless a client has a special need, like a Spanish-speaking attorney, says Stephens, the attorneys are appointed on a rotating basis: the next name up is the next attorney to get a client.
That approach is supposed to take any potential favoritism out of the process, but in many jurisdictions that hasn’t happened, advocates say.
The system offers judges the “perverse” incentive to appoint defense attorneys who will keep the docket moving, or who grease the system in other ways, says Marc Levin, director of the Center for Effective Justice at the conservative Texas Public Policy Foundation, which has been vocal about its support for a program of client choice since 2012.
Levin says he’s heard stories of attorneys being appointed as payback for generous judicial campaign contributions, or simply because they fail to do any vetting of a prosecution’s case before convincing their clients to accept a plea.
Indeed, Levin said he heard one story, involving a lawyer in Harris County, where Houston is located, who was appointed to a case at 9 am and was in front of a judge two hours later, pleading it out.
Such stories, according to Levin, demonstrate how the system is failing to measure up to what is, “bottom line…such a fundamental constitutional right” to counsel.
The Comal Project, as currently envisioned, would allow indigent clients the option to choose their own lawyers from among those already approved and on the county’s appointment wheel.
Clients would also have the opportunity of simply accepting court-appointed counsel. Those lawyers would be paid based on the current fee schedule, which offers a flat-rate for cases that reach a plea and pays hourly for more complicated cases and those that end up in trial.
Since the project will use the existing pay scale for appointed counsel it won’t cost the county any additional funds to implement. A $200,000 grant from the TIDC is being used to hire consultants for the project, which will also include an attorney mentoring and training program.
The kind of information made available to defendants in order to help them to choose their attorneys will have to be carefully chosen, and the timeline for making a choice will have to fit within the current statutory parameters for the speedy appointment of counsel to indigent clients, says Colfax.
Those, and other, details will be hashed out over the coming months in meetings among county officials and system stakeholders. The project is currently slated for rollout in the fall and will ultimately be subjected to “rigorous analysis” by the Justice Management Institute, he said.
The hope is that, if successful, the Comal County project can be used as a blueprint for other Texas counties “who use an appointed counsel system model to improve representation,” Colfax said in an email.
Lefstein, who is among those who will be “deeply involved” in the project, said the ultimate goal is to make sure that “the defense lawyer is primarily responsible to the client” and not to the court or the state— a standard of independence long advocated by the American Bar Association.
Comal County’s Judge Stephens said he believes that the attorneys on the misdemeanor appointment list that he works with are all good and dedicated attorneys. But he knows defendants often have a different opinion of their court-appointed counsel.
Satisfying the Clients
He hopes that offering clients the opportunity to select their own attorneys will lead to “a higher level of satisfaction not only with that attorney, but with the justice system itself,” he said.
And he wonders if defendants who are more satisfied with the system, who feel like they “got a fair shake,” might be more “complaint” on probation, or in paying fines, or even in jail, which could enhance rehabilitative efforts and eventually cut county costs associated with revocation suits or other post-adjudication actions.
“That would be the hope,” he said.
Undertaking the project isn’t exactly an exercise in reinventing the wheel, but does require buy-in from stakeholders up and down the chain, and has attracted support from individuals and groups across the political spectrum.
Stephens calls it an exciting opportunity.
“I’m always looking for some way to make the system better,” he told The Crime Report. “If it increases the perception that the justice system is working better for the people in it, that’s better for everyone.”
Jordan Smith is a staff writer for The Austin Chronicle and 2010 winner of the John Jay College/H.F. Guggenheim Excellence in Criminal Justice Reporting award.