BY KEVIN RECTOR, JAMES QUEALLY
A program that provides some of the poorest criminal defendants with private legal representation will undergo major changes this year for the first time in a quarter century, after Los Angeles County chose not to renew a long-standing Bar Assn. contract to administer it with taxpayer dollars.
Instead, the Independent Defense Program will be taken over by the office of Public Defender Ricardo García, county officials said. The move drew outrage from some in García’s office who say they are already overloaded with cases, and he has no business taking on more responsibility.
The change highlights dysfunction in the way poor defendants are provided legal representation in the nation’s largest court system, where private attorneys were assigned to represent indigent clients in about 5,800 cases in 2022, according to the L.A. County Bar Assn. It underscores both a history of problems administering the program at the county bar and concerns about the public defender’s ability to do any better — particularly within the budget set forth by the county.
The change follows last year’s acknowledgment by the county bar that it had provided poor oversight of the program’s independent panel attorneys and a request by the organization that its $2.7-million annual program budget be more than tripled, to about $9.4 million, so it could provide better oversight in the future.
García’s office said it will oversee the program for $4.3 million a year.
The office of L.A. County Chief Executive Fesia Davenport said the transition would not result in any interruption to legal services being provided to program clients, some of whom face felony charges.
The county is required by law to provide poor criminal defendants with defense attorneys if they cannot afford one and usually does so through García’s office. In cases where it would be a conflict of interest for his office to represent a defendant, the case is handled by an attorney in the county’s alternate public defender’s office. Both offices are staffed with attorneys employed by the county but operate separately.
In cases where legal conflicts preclude either public defender’s office from representing a defendant — such as those involving three or more indigent co-defendants with opposing legal strategies who need separate representation at the same time — the county pays for a private “panel” attorney to provide counsel under the Independent Defense Program.
In order to run both the public defender’s office and the independent program, García will have to build a legal “firewall” between the two — ensuring separate staff, offices and access to legal records.
In an interview with The Times, García said he is “100% confident” in his team’s ability to create the necessary separations and administer the program appropriately.
He said the move would have “zero impact” on existing employees in the public defender’s office unless they move to the new program’s team, which he has assigned Assistant Public Defender Marco Saenz to lead. Those who do move will be replaced, and there will be “no economic or direct resource impact” on the public defender’s office, he said.
Others expressed doubts.
Brooke Longuevan, president of the L.A. County Public Defenders Union, said in a statement to The Times that her organization and the many overworked attorneys it represents were “stunned” by the move.
“Given the scale of our workload crisis, we are deeply concerned with Mr. García’s ability to respond to the needs of our attorneys and clients while shepherding an unprecedented transition in the public defender’s office,” she said.
Sean Kennedy, a Loyola Law School professor, former federal public defender and member of a committee that helped oversee the program under the county bar, said housing the independent program within García’s office raises serious questions for indigent clients — including where García’s priorities will lie if the interests of the public defender’s office and the independent panel are at odds, such as during budget cuts.
“The concern here is that the public defender’s office in tough budgetary times may favor its own interests and its own clients over the independent panel’s interests and clients,” Kennedy said.
Given the caseload issues within the public defender’s office, moving another program under García “just seems like a strange switch,” Kennedy said.
“It would have been a much better process to have some kind of stakeholder input and allow maybe public meetings or something to allow you to weigh all the factors,” Kennedy said, “because we should be concerned with more than cost when we’re talking about the representation of indigent people.”
The new arrangement, which mirrors one in place in San Diego, follows last year’s decision by Davenport’s office to extend the county bar’s no bid, sole-source contract — which it defended by saying the county bar had provided “effective and efficient” oversight of the program and was uniquely qualified to do so.
The takeover by García’s office came as a surprise to county bar officials and to the more than 20 employees working on the program. Some learned of the change — and the fact that they could soon be out of a job — when García announced it in a letter to his staff just a few days before Christmas.
Davenport’s office said the decision was based on a months-long analysis of “ways to leverage existing economies of scale and enhance service delivery,” which included conversations with the county bar, García’s office and the San Diego public defender’s office and “internal discussions” about the budget proposals put forward by the bar and García’s office.
Davenport’s office thanked the county bar for overseeing the program in the past. It did not mention that it is conducting an audit, due in March, of the group’s contract amid allegations of mismanagement and financial malfeasance.
Former panel attorneys have accused bar leaders — including Cyn Yamashiro, directing attorney of the Independent Defense Program — of ousting them without justification and on racially discriminatory grounds and of misappropriating program funds to pay for other bar activities. Yamashiro, an attorney and law professor who for years has focused on the representation of indigent defendants, and other bar officials have denied the allegations, calling them baseless attacks from attorneys who resent being removed from the program during a major shakeup led by Yamashiro last year.
According to communications between the county bar and county officials that were reviewed by The Times, Yamashiro decided to reassess the qualifications of all participating attorneys for the first time in years after taking over the program and receiving complaints about inadequate counsel.
Officials from the Independent Juvenile Defender Program, which represents youth who have had cases remanded to juvenile court, were reporting “serious shortcomings” by panel attorneys prior to their cases being remanded, according to a February letter from the L.A. County Bar Assn. to county officials.
Officials from the California Appellate Project, which provides representation for indigent youth and adults on appeal, also complained, providing a list of panel attorneys whom they “identified as problematic” and “whose performance fell below standards of competence” — at times resulting in appeals based on claims of “ineffective assistance of counsel,” the letter said.
Additionally, when county bar officials searched State Bar of California discipline records, they realized that some panel attorneys who hadn’t been vetted in years had been found guilty of serious professional misconduct, the letter said.
In response, the county bar changed the rules for the program and required that all attorneys interested in serving on the panel in 2022 submit a new application, whether they had participated in prior years or not. It then flagged the attorneys who were the subject of complaints or disciplinary action and reviewed their applications again.
The result was that dozens of attorneys were rejected, including 27 who had been in the program in 2021. The accusations of mismanagement quickly followed.
County bar officials said the decision to ask the county to more than triple its budget to oversee and manage the Independent Defense Program was based on their conclusion that such funding was necessary to ensure that panel attorneys are better trained, more frequently vetted and held to the high standards their clients deserve.
Stuart Glovin, a former public defender and member of the bar program’s executive committee, said Yamashiro was taking all the right steps to serve indigent clients and improve the program when the county abruptly halted contract negotiations in favor of handing it to García’s office.
He also questioned whether the budget put forward by García’s office — less than half the size of the bar’s — would be enough to provide quality oversight of the program.
“If you get cut-rate funding, you’re probably going to get cut-rate representation,” he said. “It’s sad, but it’s true.”
Longuevan, president of the public defenders union, echoed that idea, saying she believes the county is “prioritizing austerity” over the needs of poor clients — just as it has done with the public defender’s office.
Many of the county’s public defenders have been frustrated for years with their workloads, which worsened during the COVID-19 pandemic. In 2020, a Times investigation found that many attorneys were carrying caseloads as high as triple their norm. More than 120 of about 180 respondents to a recent union survey described their workloads as “unmanageable,” and more than 140 said they weren’t able to adequately prepare for cases.
The public defender’s office does not track individual attorneys’ caseloads, but García has questioned the scope of the problem.
Several attorneys in the office — who spoke to The Times on the condition of anonymity, for fear of retaliation — said they were frustrated by García’s decision to take over the independent panel while his office is in crisis.
“He has asked for more resources, but the county has not provided those resources, and nothing has changed,” one deputy public defender said. “A lot of people worry for the clients who are going to be represented.”