Birmingham's legal fees for poor often go to private lawyers

Gavel-Stock.jpgBirmingham's municipal judges pay hundreds of thousands of dollars in legal fees to private lawyers for indigent defendants. However, the Legal Aid Society, which is contracted as the city's public defender arm, states that it could handle the clients that go to the more expensive private lawyers. The chief city judge denies, however, that the jurists are 'bilking' the city with the practice.

Birmingham municipal judges paid private lawyers hundreds of thousands of dollars to represent poor defendants, while the nonprofit agency that serves as the city's longtime public defender claimed it could handle the full caseload and went unpaid for months.

Payments to private lawyers in Birmingham Municipal Court totaled more than $300,000 in 2009 and 2010, spiking in the same years the city ran deficits in its indigent defense fund and had to use money from the general fund to make up the difference.

The Legal Aid Society, a nonprofit agency used as public defender for Birmingham since the 1950s, maintains it is able to handle most of the cases that instead go to higher-priced lawyers. The city has contracted with Legal Aid to handle indigent defense for a flat annual rate, $490,000.

"Our contract requires us to take any and all cases from the court," said Martha Jane Patton, executive director. "Legal Aid has the capacity to take what they give us."

The city pays for indigent defense from the Alabama Fair Trial Tax Fund, money collected from local fines. Annual collections for that fund were $552,802 in 2009 and $512,961 in 2010, but the court's spending exceeded revenue by $220,407 and $124,000 in those years, respectively, as the amount spent on outside appointments approximately doubled.

In 2009 and 2010 the city ran deficits in its legal defense fund and took money from the general fund to pay for lawyers. Among the top earners for 2009 and 2010 were Carthenia Jefferson, who was paid $106,748; Juandalynn Givan, who was paid $61,400, and Reginold Robinson, who collected $51,730, according to invoices and 1099 tax forms from the city for those years.

In addition to hours worked, some lawyers also billed for "overhead," a type of charge that has been the subject of debate in the legal community. Some argue that private law firms are responsible for their own administrative services, not the governments with which they contract.

Municipal judges assign cases to lawyers when defendants are unable to afford private representation. The city normally satisfies that federal requirement by contracting with Legal Aid and occasionally hiring outside lawyers when there are conflicts.

"I am aware of only a handful of cases where Legal Aid has had a conflict," Patton said. "I could probably count the number of conflicts cases on one hand."

Presiding Judge Andra Sparks said there were legitimate reasons for the increased use of outside lawyers, including more activity at the court as a result of more aggressive police activity.

Denies 'bilking'

"We're the largest and busiest court in the state, and the work that the police department is doing is having a direct impact on that," he said. "Nobody's bilking the system."

Sparks said conflicts commonly occur that prevent Legal Aid from handling cases. For example, Sparks recalled some cases in which Judge Deborah Montgomery, who previously had worked for Legal Aid, had to appoint another lawyer as the public defender. Another reason for going over budget is the hiring of courtroom interpreters, an expense that likely will grow, he said.

Sparks cautioned against vilifying individual attorneys for what appear to be high fees. Some of those fees could represent work done in previous years but filed only recently, he said. A reform he plans to implement this summer would place a time limit on turning in invoices, he said.

A similar issue in Birmingham municipal court arose a decade ago, when Legal Aid went 10 months without payment while a single outside lawyer was paid $61,349 a year in a four-year contract for the same work. The nonprofit group continued to work in the court without compensation until then-Mayor Bernard Kincaid urged the City Council to cancel the outside contract and catch up on payments to the Legal Aid Society.

More recently, the group operated more than six months without payment, Patton said. The city this month nearly caught up payments on the group's contract.

"We get a little nervous sometimes, but we have learned to compensate from time to time," Patton said.

Sparks said it's a misconception that the city absconded on payments to Legal Aid. He said the city pays the bills when invoices are received.

The legal appointments have raised some eyebrows. Councilwoman Carole Smitherman said it's inexcusable for the city to spend so much money on outside lawyers while failing to pay its obligation to Legal Aid.

"It's not fair to the Legal Aid Society to have to wait for their paycheck and go hat in hand when they are the authority for representing defendants," said Smitherman, a lawyer and former municipal judge. "This practice needs to stop. With the money we are paying all these outside lawyers we could pay Legal Aid on time."

Smitherman also challenged the transparency of the process.

"I never knew that municipal court had appointed lawyers," she said. "It would seem that any list of lawyers would have to be approved by the executive department and the council, and it should be open to all members of the Bar."

While he defended the recent spending, Sparks agreed some reforms are needed, including requiring all appointed lawyers to attend an orientation session to learn the court's policies and acceptable billing.

Those lawyers would then be put on an official list from which judges would select, he said. Currently there is no uniform list.

Sparks said he continues to monitor all invoices and question expenses, and said the court also might save money by renegotiating the contract with Legal Aid.

"They do a wonderful job for us, but in terms of budget it stands to reason that that contract also bear some scrutiny," he said.

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