San Mateo County needs to evaluate its private defender program, and if serious changes are not made, should consider switching to a different system to provide legal defense for those who can't pay for it, according to a recent civil grand jury report.
San Mateo County, the jury report said, is the only county in California with a population over 500,000 that does not have a county Public Defender Office.
The program has undergone increased scrutiny since a first civil grand jury report in 2015 and subsequent evaluations found that the program had some financial irregularities.
According to findings of the 2020 Civil Grand Jury in a report called "Balancing the Scales of Justice Between the Prosecution and Defense in San Mateo County," there are a number of potential problems and areas with limited oversight when it comes to the county's private defender program.
While the program has been in effect since 1968, the county has never completed a comprehensive independent review of the program to evaluate it against national public defense requirements, compare the program to other models or make recommendations to improve the current model, the report said.
The program relies on a panel of about 100 attorneys who work as independent contractors in lieu of a formal Public Defender's Office. They are responsible for defending people in court who can't afford other representation.
It also has less than half the budget of the District Attorney's Office – and the gap in funding levels is widening. The private defender program budget has increased about 6% in the seven years between the 2014-15 and 2020-21 fiscal years. The budget is now $19.6 million.
The budget for the District Attorney's Office has increased significantly more during that period, to $45.2 million in 2020-21 from $29.4 million in 2014-15, the report stated. That's an increase of about 54% during the same time period.
The private defender program, which is run by the San Mateo County Bar Association, also doesn't have resources or processes to analyze, monitor or report on the quality of legal representation that its attorneys provide, the jury report said. It doesn't have performance benchmarks that are compared to state or national programs or analyzed in the broader context of other programs.
Recent California legislation, AB 5, changed some rules for independent contractors. Lawyers are exempted from the legislation and may remain independent contractors without being considered employees at the law firms where they work, according to the report. However, the grand jury report noted that some staff members of the private defender program indicated that the law could limit what they perceive to be the program's ability to oversee individual attorneys.
In an audit of the program in 2016, the County Controller found that attorney invoices did not comply with the fee schedule in the private defender program contract with the county. During the review, there were 189,000 invoices issued and 593 were selected for review. A quarter had errors that resulted in the county bar association making incorrect payments. The audit resulted in 12 recommendations.
By a second audit in 2018, only three of the 12 recommendations had been implemented, and still pointed to "significant deficiencies" that "indicated that the PDP's financial accounting records could not be relied upon."
A third audit, in 2019, showed that only six of the recommendations had been completed. The Bar Association had adopted further practices to bring them into compliance, but that not during the review period so it wasn't captured in the audit.
By June 2019, when the current contract was adopted, the County Manager reported that the follow-up audit had found that the program was complying with financial reporting obligations, but that information was not supported, the grand jury report stated.
By July 2020, a fourth audit was completed for the 2019 calendar year. By then, all of the 12 recommendations had been implemented.
Some of the recommendations that the board of the county Bar Association adopted were to separate the executive director from the chief defender position; require board members who work as attorneys for the private defender program recuse themselves on votes about how the program is managed; change accounting firms and replace accounting staff; and adopt different procedures and policies for accounting, according to the report.
The civil grand jury report compared the private defender's program to the San Mateo County District Attorney's office and found them to be unequal in the areas of professional development, attorney oversight, resources and program accountability.
The District Attorney's office and private defender program cover 20,000 cases per year, and cover about 85% to 90% of the same cases.
While there are only about 100 defense attorneys in the private defender program, about half of whom are full-time and the rest part-time, there are about 137 full-time employees at the DA's office, which includes 60 full-time attorneys, 10 senior management positions and 67 investigative staffers, paralegals, and information and administrative staff members.
While private defenders are responsible for their own legal research and case management, attorneys in the District Attorney's office have lawyers and paralegals who help research case law, as well as access to "brief banks" to make it more efficient to create legal briefs and best practices, the report said.
The District Attorney's office also gives attorneys continuing education via daily, weekly, monthly and quarterly mandatory meetings and training organized by topic, skill level or type of crime, and participation is tracked via a customized professional development plan. Senior staff also help new attorneys talk through pending cases, issues, case law and more while new attorneys help more senior ones to prepare court documents and briefs.
The Private Defender Program has in-house training and $750 for each attorney to use for continuing education, but the civil grand jury reported there was no information about how many classes each attorney attends or the content, and it does not track attendance, though it does have a mentor program and email list.
In the new report, the Civil Grand Jury issued recommendations for the Board of Supervisors, urging it to provide greater oversight over the program. These recommendations include:
• The County Controller should audit every contract with the private defender program before it is renewed or implemented.
• Informational materials about the private defender program and the judicial process for clients and their families should be translated into multiple languages on the private defender program website.
• The private defender program should consult with the District Attorney's Office to learn more about its programs for professional development and career advancement, processes, systems and resources by the end of January 2021.
• The private defender program should replace its performance benchmarks with ones that align with state and national defense performance benchmarks and be audited annually. Those should also be reported annually to the Board of Supervisors.
• And, starting in the next fiscal year, 2021-22, the Board of Supervisors should work on addressing the large funding gap "between the defense of indigents and their prosecution," the report stated.
If those changes aren't made, the county should consider "providing the San Mateo County Bar Association with a two-year notice to terminate the contract and start developing a new legal defense model," the report concluded.