Ethics complaint against one of the RCs

I received an email today with the text of an ethics complaint forwarded to the Florida Bar. The subject of the complaint was one of the Regional Counsels. The email I read is fascinating and highlights alleged problems with attorneys hired by this Regional Counsel expending their own private resources without reimbursement to get the office running, and also suggests that one private practice was greatly harmed by its un-reimbursed commitment to provide resources to the RC office.

I want to digest this a bit more and hopefully hear from some of the players in this before reproducing the text of the complaint here, but I will follow up on it.

If nothing else it highlights what many of us have known from the beginning, that the budget for the Regional Counsel system is ridiculously inadequate, and the whole thing will either end up costing as much or more as using private contractors as in the past, or else collapse as a house of cards.

I am willing, given the fact that the people copied on the complaint suggests that the author does not oppose at least some discussion of it, to pass on this much (disturbing):

Once the change in management came into effect, the lack of understanding or respect for the dependency system and the rights of the children to permanency became clear. A practice which engaged unethical acts began. The rights of the indigent people we have been appointed to represent and protect were unprotected.

As always, any and all of the Regional Counsels and/or their spokespeople are welcome to contact this site. More information and viewpoints are good things. I've repeatedly emailed each of them in the past, with only one ever responding.

The email address to contact this blog is here.

Which county will file first?

I'd noted after listening to the oral argument in the FACDL v. Crist case (decided against FACDL and upholding the Regional Counsel offices)that Justice Pariente seemed to open a wide door for the counties to walk through and file suit to have the unfunded mandate portion, requiring the counties to provide the RCs with office space and equipment stricken from the law.

Judging by the URL where I found this "local briefs" in the Tallahassee Democrat, it was posted March 27, 2008. We read:

Leon County

County will refuse to pay for conflict counsel offices: Leon County is going to refuse to pay for state-mandated conflict counsel offices, commissioners decided Tuesday. The conflict counsels were created last year as a way to handle cases where the public defenders had conflicts of interest. Previously, private lawyers would handle the cases, but now lawyers from regional offices will handle them and counties are being required to pay for their office space, phones and other needs. County Attorney Herb Thiele said each Florida county would pay different amounts for the conflict counsel office space, violating the constitution's "equal protection" clause. Commissioners authorized Thiele to file a suit against the state.

If something has happened to change Leon County's decision since that news brief, it seems certain that some county will go ahead with a suit.

This follows an earlier story in the Tallahassee Democrat that read, in part,

In the midst of a tight budget year where library hours have been cut and about 90 positions frozen, Leon County now must spend additional money housing conflict attorneys, County Budget Director Alan Rosenzweig said...Rosenzweig said the county budgeted $300,000 for running the office this year, although counties were hoping for a reprieve when the Florida Association of Criminal Defense Lawyers challenged the legislation in court. But the Florida Supreme Court upheld the mandate about a week ago.

Leon County's office is expected to have about 22 employees, but that number may increase.

"We're going to be obligated to rent them space, and provide communications and computers," Rosenzweig said.

"Supply and Demand"

This comes from the NCCPR blog (scroll to 2/11/08 entry), commenting on a multi-state study (click here to read it, free registration required for full report). My comments can't add much to this analysis, except to say that I see the infants as commodities element of dependency cases frequently, and up close and personal. From the blog:

Of all children entering foster care in 2004-2005, fully 20 percent were infants. No other age group, not even children aged one to two, represented more than seven percent of all children entering care....Among children who enter foster care before their first birthday, only 28.6 percent return home. Another 9.5 percent exit to relatives and 30 percent are still in the system after turning one. In contrast, fully 24 percent exit to adoption....[ed: This means that for infants, the rate of termination of rights is nearly equal to reunification, if not more depending on the results for those still in the system after turning one]...It’s hard to believe that parents of infants are inherently more abusive and less capable than parents of children of any other age.

Here's more:

I can imagine child welfare agencies claiming that all this is just because infants are more vulnerable – so someone who can be a good parent to a 12-year-old might not be a good parent to an infant. But children aren’t exactly self-sufficient at 18 months – yet even by that age, child welfare systems are far more prone to return a child to birth parents. Among children aged one to two years old 40.5 percent return home and only 13.6 percent are adopted.


So the real answer is as obvious as child welfare agencies are desperate to deny it: Supply and demand. Infants are, by far, the most marketable of commodities in child welfare. There is far more likely to be a “nice” (translation, affluent, white professional) couple - people like us – anxious to adopt, so it’s much easier to take them away forever from parents who are “unfit” – translation, poor, minority and so, presumably, nothing like us.

And, of course, the federal government will pay the child welfare agency a bounty of $4000 to $8,000 for every finalized adoption over a baseline number. There is no comparable incentive for returning that adorable infant to her or his own parents.

In the United States, as early as 1999, the Pittsburgh Post-Gazette did an excellent series on the propensity of one county in Western Pennsylvania to rush impoverished infants out of their homes and into the arms of affluent adoptive parents who sometimes had connections to the county’s child welfare and court systems. [ed: Oh, I have stories!. Yes, that happens in Florida]

If child protective apparatuses tend take on the look and feel of a for-profit industry, the "bounty" for finding attractive adoptable babies is among the least defensible of the profit centers. Do your jobs well, dependency defenders.

What legislative changes can make this work?

Readers and contributors to this blog may disagree, but it has been my position since the Regional Counsel law was passed way back when (about the time that dependencydefense.com appeared)that we have entered a new era, and we as private defense counsel in dependency cases are going to have to adapt to it. I envisioned coalitions of experienced attorneys who could contract with the RCs to provide great service at a reasonable cost while sacrificing none of the experience and passion of those attorneys.

The problem is that the current law doesn't allow the RCs to contract with such coalitions/firms. Either you become a state employee or you don't. I am not alone in thinking that there is too little imagination and flexibility in that requirement.

In that light, I recently asked Jack Flyte, 2nd Regional Counsel, a question. It went, in part, like this:

I'm wondering how things are going for you in handling dependency cases. I also wonder what you would think of a tweak to the law that would allow you to contract with law firms to handle dependency cases instead of a strict requirement that all of your lawyers become state employees.

Mr. Flyte's answer, quoted here with his permission, was, in part:

I have recently met with State Senators and Representatives about allowing me more discretion in the way I am allowed to use my budget such as contracting with private lawyers as opposed to hiring them as a state employee. They all seemed willing to allow me wide discretion in this regard but also were very clear that there would be no budget increases this year.

The Bill to repeal my office by Rep Galvano lacks a Senate sponsor so is not likely to succeed.

There is also a Bill with both House and Senate sponsors to expand my office's duties to represent Guardian Advocates. So it would seem they are anticipating my office's continued existence.

So. I think my initial instincts are correct, and that we ought to go in the direction of creating private services that are effective, both litigation and cost-wise, and attempt to influence the legislature to allow for contracts between the RCs and private law firms to deliver dependency defense services.

Nominations for top 10 lawyer movies -- defense edition

Thanks to contributor "The Reader" for the very interesting post below. There's a lot to think about there.

This being the weekend (the last couple hours of it, anyway), I thought I'd post something a bit lighter.

I just got done watching the first episode of HBO's miniseries called "John Adams". It is based upon a book I've read and enjoyed called 1776 by David McCullough. The first episode is the story of a defense lawyer, who just happened to become the second president of the United States.

I find that episode relevant here because it focused on what we do: the defense of defendants that our community finds to be barely worthy of a defense at all. You see, attorney John Adams defended the British soldiers involved in what we all know as the Boston Massacre. The man believed in the law, and in the end the jury of Massachusetts men believed in the facts as presented by Adams. It's a good story, and leads to an even better one in which American revolutionaries came to appreciate the quality of Adam's reason and prudence, even though it did not at first serve their cause.

We dependency defense lawyers can't lay claim to Adam's greatness, but we can lay claim to a similar willingness to take the causes of those about whom the public might just as soon not look into the facts and weigh all the essential factors in what it means to serve the best interests of children and families.

Anyway, speaking of people named John Adams (in this case John Quincy Adams), it made me think of a great lawyer for the defense movie. One of my favorites is Amistad.

If you are inclined to nominate any other lawyer movies for the top 10, leave a comment below.

Views from around the State

Taking a look around the state, things don't look promising for OCCCRC:

Per PD Laramore: Lewis Hasn't hired a staff:

http://www.newsherald.com/headlines/article.display.php?id=1097

Leon county just not sure how they will pay for the conflict offices:

http://www.wctv.tv/home/headlines/16689256.html

No comment from Flyte:

http://www.tampabay.com/news/courts/article416492.ece

With cuts in the state budget and expected cuts in local budgets, where is this all going. Have they done the math yet? Was this on the FCAT? Hopefully for the indigent clients these offices are charged with representing, this will turn around fast - but without appropriate funding what representation will they get????

Regional counsel might start taking cases in 17th circuit dependency this coming week. I'm not sure how well staffed the office is. We have five judges, three general magistrates, mediation that is routinely utlilized in dependency and then there is appeals, depositions, office administration, client contact (can't forget that) . . . . That is what they need to cover. I'll be posting the progress.

Supremes Rule - OCCCRC Constitutional

Well its done - until and unless the counties take action now.

Just as expected - the inclusion of the OCCCRC as public defenders was for sole "purpose of implementing the constitutional guidelines concerning funding." p. 18 of opinion.

To those who have been and will be hit hard by this- keep your head up, while still involved in dependency cases stand strong for zealous representation of parents, and remember as one door closes another opens.

Discipline via nozzle

The attorney mentioned in this now nation-wide story is a colleague of mine. As with most of these things, they only become visible stories when there is video.

Here's the question for you commenters: does this appearance on Good Morning America increase the pressure on DCF to remove the child?

I've wondered about the wisdom of appearing on national television on behalf of a client ever since the "baby in the oven" case highlighted by Nancy Grace on CNN. In that case I elected to keep things out of the media circus. In some ways I regret that, as I can't even get the local paper (Orlando Sentinel) to acknowledge the fact that the family in that case has been successfully and happily reunified. In most ways I don't regret it, since keeping the national news story alive longer would have made negotiating with DCF more difficult.

What do you think?

Why we fight, part 3

I very purposefully keep my personal politics out of this blog. Dependency defenders come in various shapes and sizes, and I work with plenty of people who like me (it's mutual) but with whom I disagree vastly on various political issues.

It's with that in mind that I post the following. Here are two reasons I'm concerned about the future repercussions of gutting the pool of dependency defense experience in Florida might have.

I think the following links speak for themselves.

Here is the wave of the future: educational neglect.

Here is an example of the system being so unfamiliar with a foster child having any sense, drive, or ambition, that it simply cannot allow them to rise above his situation under any circumstances.

It is time to organize

..or, why we fight, part 2...

I have from time to time blogged about specific cases I've had in order to illustrate the great good that competent dependency defense lawyers can do, not just for individual clients, but children, families, and for society, not to mention the state budget that feeds the enormous foster care machine.

I have posted some questions to which I'm still awaiting answers in "why we fight" (part 1).

As private defense attorneys, we deal with difficult clients, many of whom are mentally ill. The last hour I just spent returning email can attest to that. All for a whopping $1000 per case. As private defense attorneys, we've accumulated the experience and relationships with judges, DCF counsel and case managers, etc., that allow us from time to time change the dynamics of what happens when a case becomes entrenched in the system and, if I may be so bold, pull off miracles. Two Fridays ago I was dreading a judicial review hearing. The case was going on two years old. The client didn't follow my advice very well and was difficult to deal with. There was trouble with ICPC missteps and false starts in two states with the parents trying to satisfy the government with their case plan efforts, and we were on our fourth case worker not doing much to create options other than an eventual inevitable TPR.

I dreaded the judicial review hearing. More sadness over seeing a family that had been well and truly torn apart. More punting the ball down the field for a future hearing. Then I had an epiphany and perhaps an original thought. Five lawyers had been involved in the case for almost two years. Five minutes of argument after I had my new thought and suddenly the family was reunified, and supervision and jurisdiction terminated. Tens of thousands of taxpayer dollars saved. A family saved. It's hard to explain. A totality of experience in dependency court focused and came to a point of determination. A few minutes of talking, the judge's head cocks, eyebrows raise, a statute book is opened, the air in the room suddenly feels different, clients and extended family begin to cry with pent-up hope, and then...the ruling.

It's over. It's all o.k. now. The child has parents again.

That's not to say that employees of the Regional Counsels cannot or will not be capable of spectacular results in court. I hope and imagine that several of them will accomplish that.

It is to say that simple math tells us that the most experienced of Florida's dependency defenders are unlikely to accept $40,000 per year jobs and give up the joys of running their own practices to become employees of the Regional Counsels, and that is a lot of talent lost if they can no longer make a living doing this work.

This post is becoming long and a bit rambling, so let me take you to my point: we dependency defenders need to form an organization. We need a "Florida Association of Dependency Defense Lawyers" (FADDL), and we need to help our legislature make some relatively minor and common sense changes to the new RC law. First on the list of changes would be to allow the RCs to contract with (instead of making them employees) individuals or firms who are willing to negotiate a fair and proper fee for covering dependency defense in a county, circuit, or region. That is a key thing that is missing from the law as it is now written.

Look, the Supreme Court is going to uphold the RC law. I don't like predictions, but I'd be shocked if I'm wrong about that. We as private defense counsel need to figure out how to not only survive in the new environment, but also how to thrive and to significantly contribute to the solutions.

I envision a series of very professional "Family Preservation Legal Services" law firms who can contract with the RCs and do more with less and allow experienced defense attorneys to do what they love full time without having to become state employees.

Are you with me? The first step is to create the FADDL. I'm in, and can think of a few people who would like to pursue it as well.

Incidentally, I can tell you that a recent lunch meeting overheard at Macaroni Grill suggests that there are people thinking along the same lines.

Role Call

As of the 3/5/08 shelters, still no sign of Regional Counsel in the 17th Judicial Circuit - Broward County. Rumor has it that Regional Counsel is getting geared up to take cases here soon.

What's the rest of the state looking like?

FYI - there is at least one bill that was filed very recently calling for Regional Counsel to be repealed.