Three of the six Benton County public defenders who resigned earlier this month in a contract dispute have decided to keep representing poor court-appointed clients.
Scott Johnson and Dan Arnold told the Herald this week that they rescinded their resignation Sunday so they can continue working to resolve the contract issue with the county's Office of Public Defense.
"The three of us don't want to turn our back on the system and let the system fail," Johnson said, referring to Arnold, himself and his law partner, Sal Mendoza Jr. "After talking with Dan and Sal, I arrived at the decision that we have to try to save this thing and we can't do it from the outside."
Attorney Kevin Holt also has rescinded his resignation, Johnson said. Mendoza will continue supporting and advocating for the changes, but will no longer maintain a defense contract, he said.
The other two attorneys who resigned Sept. 5 are Gary Metro and Larry Zeigler. Zeigler declined to talk about the issue. The Herald was not able to reach Metro, who was in trial this week.
Nine lawyers were contracted this year to represent poor defendants in Benton County Superior Court.
The resignations stem from a stalemate in negotiations with the county about new caseload restrictions mandated by the state Supreme Court.
The justices, in a 7-2 vote earlier this year, said full-time public defenders can take no more than 150 felony cases each year or 300 misdemeanor cases.
In Benton County, attorneys previously negotiated a 150-case cap on their contracts. They get paid $82,105 a year.
"We're very much in support of what the Supreme Court has done," Mendoza said. "It changes fundamentally how smaller counties are going to deal with the issue of public defense. The playing field has changed, but it needs to be recognized by all parties."
The current contract violates public policy, Mendoza said, because it allows for private practice work beyond the 150-case limit.
Because the high court's ruling would limit the private practice work, the lawyers said the county should have increased how much the lawyers get paid in the new contracts, not decrease it.
Attorneys on the indigent panel said they have been trying to work with Eric Hsu, the county's indigent defense coordinator, who had to devise a new system to meet the guidelines that go into effect Sept. 1, 2013.
Earlier this month, Hsu sent out a "Request For Qualifications" for new defense contracts that classified Class B and Class C felony cases as being worth one point, Class A felonies as two points and provides for an additional two points on complex cases.
Defense attorneys also can set the limit of points they accept each year so they can continue taking on private clients. The problem, the lawyers said, is that the pay per case point was set at $580 in 2013 and $610 in 2014.
For example, attorneys appointed to a serious assault case next year would get paid $1,160. They would receive $580 for a vehicle prowl or residential burglary.
"I want to make sure the county understands, in my opinion, the proposal they made is wholly inadequate," Mendoza said. He added that his resignation "should be interpreted as a protest. We want to make sure there are adequate attorneys out there."
Hsu told the Herald he was not able to discuss this issue beyond confirming that he received the six resignations two weeks ago and has put out the request for new attorneys.
Commission Chairman Jim Beaver could not be reached about the issue.
Arnold said a rough calculation of his cases this year based on the new point system showed he would have been paid several thousand dollars less than the current contract.
"The county recognized the need for increased compensation due to the state Supreme Court limits on private practice," he said. "Though they wrote us and agreed that compensation should be increased, their offer was a decrease in compensation."
By comparison, Walla Walla County pays its contracted defenders more than double at $1,200 a case credit, Johnson said.
"It's an extreme difference," he said. "We need to be adequately compensated for the work we're doing."
The contract salary also doesn't factor in extra costs that the attorneys must cover on their own, including offices, staff, liability and medical insurance.
Johnson said they recognize the county doesn't have unlimited money, but there needs to be a balance.
The county's biennial budget for the Office of Public Defense for 2011-12 is $4.87 million, which includes $2.38 million for Superior Court defense, Hsu said. The Prosecutor's Office budget for the same two-year period is $8.52 million, which includes all of the county's prosecution costs, not just Superior Court.
This also isn't something that happened overnight, Johnson said, but the county just wasn't prepared to act.
Under the new proposed contracts, the county likely will find competent attorneys to fill the positions, but it's not a long-term solution, Mendoza said.
"Those numbers will change. If they don't, you're going to have attorneys who have minimal experience, yet meet the basic bottom-line experience the county is requesting," he said. "Frankly, I don't think that serves Benton County."
The lawyers said inadequate counsel and inadequate pay for counsel violates the right to counsel guaranteed under the U.S. Constitution, according to the 1963 U.S. Supreme Court ruling in Gideon v. Wainwright.
"There's long been a concern of the courts and the accused of ineffective assistance of counsel," Arnold said. "That's always been a concern that desperate people will do this at any price."
Inexperienced attorneys actually can drive up the cost to the county by taking cases to trial that should have or could have been resolved through plea negotiations, he said.
And, Johnson added, the institutional knowledge and experience of the attorneys who have long had public defense contracts is irreplaceable. Combined, the six attorneys have more than 100 years of legal experience.
"It may be penny wise, but it's pound foolish," he said.
Arnold has been a public defender in Benton County Superior Court since 1993, but also had six years in the '80s as a juvenile court defender and was director of public defense in Chelan County in 1991-92.
Zeigler has been representing court-appointed clients for about three decades, while Holt has been a public defender for about 20 years, Arnold said.
Mendoza has been practicing law for 15 years and has had a public defense contract with the county for 13 years. Johnson, who has 14 years experience and previously was the chief criminal deputy prosecutor in Benton County, has been a public defender now for three years.
It all comes down to cost, Mendoza said, and right now the county is saving "millions of dollars" under the current system.
Arnold said he likes the current system that allows him to be his own boss and still help clients, but said it'd be better for the county to have a full-time public defense office similar to the prosecutor's office "than to have attorneys who may be barely qualified."
The three lawyers said they don't have to take public defense work, but they do it because they want to.
"It's extremely rewarding. This is not a job I have to do, but it's a job I enjoy," Johnson said. "Getting to help people that nine times out of 10 have no one to help them -- it's gratifying."
Mendoza echoed Johnson's statements and said he's sad he's been forced to resign.
"I really do love what I do," he said. "It's unfortunate it's come to this."
Mendoza will continue to be in Benton County Superior Court on Thursdays, handling his current cases until they're resolved. The county also can continue to appoint Mendoza and the other lawyers to new cases for up to 60 days from the date of his resignation.
Arnold and Johnson said they can continue to work under their current contracts until Aug. 31, 2013, without being in violation of the Supreme Court's new standards. Until then, they're hoping to keep negotiating with the county.
Johnson said they've made it clear to Hsu that they want to keep doing the contract work, and they want to keep working with him to resolve this issue.
"We proposed what we thought was a much more fair point system and they came back with their own. But, Dan and I, we were willing to accept that," Johnson said. "We've made concessions ... but we're still met with silence."
