Attorney tells judge he can order private attorneys to defend criminal defendants

A managing attorney at the San Francisco Public defender's office told a judge Wednesday that he has the authority to order private attorneys to represent indigent criminal clients when the office or conflict panel is unavailable.

Senior attorneys who deal with ethics litigation for attorneys and judges said in interviews with the Daily Journal that it's unlikely the judge has such power.

Meanwhile, Sujung Kim, research manager at the Public Defender's office, gave evidence at ongoing hearings into the unavailability of attorneys at the office and the conflict panel after the Superior Court announced two weeks ago it would have to release defendants in pretrial custody who were being held longer than the constitutionally permitted 45-day period.

The court said Wednesday that in response to the public defenders' unavailability, one pretrial defendant has been released from jail so far and a private defense lawyer was appointed for him.

Kim also told the judge that the Los Angeles County Alternate Public Defender's office declared it is currently unavailable for homicide cases and has to date declared itself unavailable in 60 homicide cases. Los Angeles Alternate Public Defender Erika Anzoátegui's office was contacted by phone, but no response was received by press time. The L.A. County District Attorney's Office also was called and emailed.

San Francisco Judge Harry Dorfman, who oversees felony arraignments, has been holding hearings this week with representatives across the city's legal system.

Kim delved into the language of Penal Code Section 987.2 to answer Dorfman's inquiry as to whether he had the authority to order lawyers through the Bar Association of San Francisco to step in and represent indigent clients when the Public Defender's office and conflict panel are unavailable.

Kim highlighted the language of that code that says if the public defender is unavailable "the court shall utilize the services of the county-contracted attorneys prior to assigning any other private counsel."

In a presentation to the court, Kim said, "The court must appoint panel attorneys unless the court finds good cause not to appoint them. If the court finds good cause not to appoint panel attorneys, the court must appoint other private counsel."

Dorfman asked Kim if the language in the Penal Code authorized him to "call the Bar Association of San Francisco and order a lawyer to represent an indigent client."

"That could be one option," Kim replied. "We need to be creative."

"Such an order would be extraordinary," Dorfman said. "When you say 'we', you mean 'you, judge'."

But Dorfman told Kim, "I have to look at the possibility that there are lawyers in your office that might be able to take felony cases that you have declared yourself unavailable [for]."

Dorfman said there is a possibility "I do find you are available, and I make an order saying that. I want to be as transparent as possible."

Heather Rosing, founding partner of San Diego based Rosing Pott & Strohbehn, is not involved in the San Francisco case but commented, "The Bar Association has no way of compelling attorneys to serve on its panel, and certainly no way of compelling attorneys who do not feel qualified in criminal practice to serve on its panel. Even if it was permissible for the judge to issue an order, it could be a hollow order since it is trying to make a Bar Association do something that it simply doesn't have the ability to do."

In her presentation, Kim told the court that in 2010, due to severe budget cuts, the Fresno County public defender's office declared itself unavailable to accept new cases, and the court had to appoint private counsel to some new cases.

Randall Miller, founding partner at Miller Waxler LLP, who has represented judges and attorneys for more than 40 years, said in a phone interview that public defender shortages are a growing national "crisis fulcrumed on inadequate funding, attorney under-supply, immense numbers of criminal prosecutions, and big city and rural crime rates."

Miller added that he did not think the court had the power to compel Bar Association of San Francisco lawyer appointments to represent indigents in criminal cases.

"I do not think the court (any court) has the inherent power (under its duties of supervision/control of its own docket, or the like) to compel a private entity to mandatorily provide attorneys to staff the cases. That would be an overstep by the court, and an ultra vires act," Miller said.

In the San Francisco courtroom, Kim told the judge, "The county responded by issuing a request for proposal soliciting bids from private contractors to do the work of the public defender's office. I think the court should do what they did."

Kim suggested that any attorney ordered to represent an indigent criminal defendant could be trained to meet the standards required for representation.

But Rosing said she saw "serious issues" with this.

"As a practical matter, this could mean that the bar association is recruiting civil attorneys who know next to nothing about the criminal justice system and the important rights and processes afforded to criminal defendants. This would not be of service to the indigent criminal defendants and could lead to many ineffective assistance of counsel claims," Rosing said.

Speaking for the whole hour allotted for Wednesday's hearing, Kim told the court that the public defender's office was "exploring other ways" to get additional funding from Mayor Daniel Lurie's office. The Mayor's Office was contacted for comment but did not respond by press time.

Rosing agreed with this approach, saying, "There may be better options available in this unfortunate circumstance in San Francisco, such as the applicable governmental entity freeing up additional funding to pay a higher rate to the conflict panel attorneys. They tend to be underpaid, and this may attract additional qualified practitioners to the program.

"It is a difficult situation with no easy answer," Rosing added.

Kim said the decision by Public Defender Manohar Raju's office to declare itself unavailable to take new cases one day a week since May was "not a decision they took lightly" and has happened elsewhere in the state. The office has said it was unavailable to provide counsel for more than 450 cases since May.

"The Court has released one defendant in People v. Alexandre Santana-Martini, case 25022177, court spokeswoman Ann Donlan said in an email Wednesday. "Mr. Santana-Martini is accused of getting into a bar dispute, he has no criminal history, he was ordered to return to court on Oct. 24, (which he did), and a private defense lawyer was appointed for him."