Calif. County's Indigent Defense System Is Illegal, Atty Says

By Marco Poggio | March 14, 2024, 4:35 PM EDT ·

A criminal defense program for indigent people run by the bar association in San Mateo County, California, violates a state law prohibiting trade associations from engaging in legal practice and provides constitutionally deficient representation, a member of the association says in a suit in state court.

Most counties in California provide defense lawyers to poor people charged with crimes through public defender offices. However, in San Mateo County, which borders San Francisco, indigent defense is contracted out to the San Mateo County Bar Association.

In a complaint filed Tuesday in Superior Court, Rodney Sorensen, a Silicon Valley attorney and former DLA Piper partner, said the Private Defender Program that the bar association runs under an agreement with the court is illegal and should be shut down.

The SMCBA receives $21,000,000 in taxpayer funding annually from San Mateo County to pay its lawyer members, who are in private practice, for providing criminal defense services, the suit says.

In the complaint, which names the bar association and 50 Does as defendants, Sorensen argues that attorneys representing indigent criminal defendants through the PDP are engaged in the unauthorized practice of law — a misdemeanor in California — because trade associations like the SMCBA are prohibited from practicing law.

In addition, the complaint says, the SMCBA has violated its own articles of incorporation prohibiting it from entering into agreements for legal services in exchange for compensation for its members.

"It is time for San Mateo County to create a proper public defender's officer and stop using its taxpayers' dollars to compensate attorneys in private practice," Sorensen said in a statement accompanying the suit. "As a lawyer and member of the San Mateo County Bar Association I have a responsibility to address a defective and unlawful government program that harms the most vulnerable members of our community."

In an interview with Law360 Pulse on Thursday, Sorensen questioned why the PDP has not been the target of suits before.

"Why has indigent defense in San Mateo County been allowed to go unchecked for so many years?" he said.

According to tax returns referenced in the suit, 62 PDP panel lawyers earned more than $100,000 in the fiscal year ending in June 2022. Eric M. Hove, an attorney from San Carlos, earned over $365,000 that year. Elizabeth Maguire of Redwood, California, made more than $362,000 as the chief defender of the program.

Maguire told Law360 in an email Thursday evening that she was aware of the lawsuit. "I do not believe the allegations are supportable," she said. "The matter has been assigned to counsel and will be vigorously defended."

Hove and other top earners named in the complaint did not immediately respond to requests for comment on Thursday. SMCBA President H. Yvonne Seeley declined to comment.

Last July, Judge Elizabeth K. Lee of the San Mateo Superior Court signed off on a contract with the SMCBA that provides funding for legal representation to financially eligible children and parents who are parties in juvenile dependency proceedings through June 2028.

Judge Lee's office did not return a request for comment on Thursday.

According to the suit, the Private Defender Program, which was created in 1968 as a result of opposition from attorneys in private practice to the county's proposal a year earlier to set up a public defender office, has for years been deemed inefficient in representing clients.

In 2003, the American Civil Liberties Union lamented that the program had refused to collect or publish statistics concerning the quality of its representation, for instance the number of acquittals and the number of cases taken to trial.

Marie Davis, a former president of the San Mateo County NAACP, said in 2012 that over the course of five years "no black person had won a case with a private defender."

The San Mateo County grand jury has called out issues concerning the PDP in two reports, most recently in 2020, where it identified unresolved issues including an apparent lack of financial oversight, and called for external investigation of the program.

A probe by consultant Harvey M. Rose Associates LLC followed, and its January 2022 report concluded that the PDP's training and practices were "not aligned" with those in place at leading defense organizations. Also, the firm found that the PDP didn't have an effective system for tracking attorneys' caseloads.

Then in July 2022, an advocacy organization called Silicon Valley De-Bug based in San Jose told the San Mateo County's Board of Supervisors that it opposed the renewal of the PDP contract, citing examples of bad lawyering such as attorneys refusing to meet with clients until the morning of high-stake hearings, pressuring clients to take guilty pleas before reviewing evidence, and the "persistent feeling from the most vulnerable that many panel attorneys could care less about the outcome in their case."

The group asked the county to study the creation of a public defender office.

"Competent indigent defense is not just assigning the case to an attorney and wiping your hands clean," the organization said.

--Editing by Brian Baresch.

Update: This story has been updated with comments from Elizabeth Maguire.

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