OSB Indigent Defense Task Force III Report

Introduction  •  Summary  •   Staffing  •  Training  •  Geographic Analysis  •  Types of Cases  •  Post Conviction Proceedings  •  Conclusions, Goals and Recommendations

Types of Providers

Oregon employs a hybrid system of indigent defense representation. Historically, judicial districts maintained lists of attorneys who accepted appointment to indigent defense cases. Judges exerted almost complete control over the private bar lists and were even known to use their authority to enlist members of the civil bar when the need arose. Often, the ‘private bar’ attorneys combine indigent defense work with more varied law practices. Over the years, starting with the larger metropolitan areas, the demand for representation became so great that public defender offices were formed to specialize in indigent defense work. More recently, two other types of provider organizations have emerged: the Indigent Defense Services Division has begun to award indigent defense contracts to small firms, referred to as contractors, and to consortia of sole practitioners and small firms.

Task Force members were surprised to find such a wide variety of provider models across the state: there may not be two judicial districts, statewide, employing exactly the same model for providing indigent defense services. Outlying counties appear to be converting, by and large, to a contracting system, with small firms sometimes staffing offices in more than one county seat and shifting staff attorneys among the counties served. (In the geographically expansive but sparsely populated judicial districts, many counties may be encompassed within a single judicial district.) Public defender offices are employed, for the most part, only in the more populous districts, although not all relatively large districts have public defender offices and some mid-size population centers, including Pendleton and Roseburg, house public defenders. Consortia appear to be most popular in the mid-to-large metropolitan areas of the mid-Willamette Valley, with almost all indigent defense representation in Marion and Clackamas provided by consortia. Relatively small consortia also exist in Multnomah and Jackson Counties. In Multnomah and Washington Counties, however, the general model is best described as a combination of public defender offices and small firm contractors. Appellate representation in the state is provided, for the most part, by a single appellate public defender office, supplemented by private bar appointments; that office is separate from the Indigent Defense Services Division. Statewide, the number of private bar appointments has decreased significantly, corresponding to the increase in contracted caseloads. In almost all jurisdictions, with the notable exception of Yamhill County, private bar appointments are now used only as a 'safety valve' to the contracted caseloads. With the exception of the remaining private bar hourly-rate assignments, most indigent defense work is now funneled through contracts providing some variation of a flat-rate-per-case payment structure.

No one district employs a public defender office, a large consortium and also significant small firm contracts, so the Task Force was unable to make side-by-side comparisons of the three types of organizations. Responses from various districts were compared, however, to come up with an assessment of relative strengths and weaknesses. Public defender organizations are well regarded in every district in which they exist and in many others, with the exceptions limited to those jurisdictions that were politically averse to the possibility that a public defender office might ‘take over’ local practice. Likewise, respondents from districts utilizing large consortia of relatively experienced attorneys report few quality concerns. Large consortia are viewed as having two advantages over smaller organizations. First, the individual attorneys invited to join consortia are relatively experienced, brought in at a level more equivalent to that of a partner than associate, thus decreasing the need for oversight. Second, the design of the consortia lends itself to internal quality control in that large consortia are administered by coordinators who oversee the work of consortia members and who are available to address problems that arise with respect to individual member attorneys. Public defender offices have similar design advantages in that central administrators can provide uniform training and oversight and can utilize broader resources to assure consistent work product. Respondents from districts employing both consortia and public defender office models view the presence of a central administrator to investigate and respond to problems as an effective quality control mechanism. Respondents in districts with small firm contractors did not relate the same general confidence in the internal quality control mechanisms of small firm contractors. Many respondents reported limited avenues to address perceived problems with the quality of representation provided by individual lawyers in small firms. Some respondents also commented on the different economic dynamic of a contract office compared to a public defender or consortium of sole practitioners: small firm contractors were viewed as the most vulnerable to financial pressures since the principals in those firms have personal financial liabilities for the offices they head that are far greater than their counterparts. Public defender offices are non-profit organizations, so their administrators are unlikely to bear great financial responsibility for the organization's obligations. Sole practitioner members of a consortium are likely to be responsible only for their own overhead and to have retained practices that will cover expenses if indigent defense appointments come to a halt. Small firm contractors, however, usually employ several associate attorneys and are personally obligated for the overhead expense necessary to support those attorneys; long-term obligations to pay for proportionately larger overhead expenses may make it a practical impossibility for a small firm to forego a subsequent contract, even if the contract funds are insufficient to fulfill the contract's requirements adequately. Although observers do not suggest that this occurs frequently, concerns were voiced about particular contractors in some districts.

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