Assigned Counsel Poised to Change at Family Court

The County Account by Legislator Michael N. Kelsey
December 04, 2011

At the time of this writing the County Budget has passed from committee and is awaiting approval by the full Legislature. An important institutional change that seems imminent is the shift in assigned counsel at Family Court to a public defender model. All three family court judges spoke at length against a public defender model at public hearings and in letters alluding to anticipated inefficiencies in quality of representation, cost and workability. Yet the public defender model appears ready to succeed largely because it is funded in part by a grant, freeing up tax money to be spent on other needs. Budgets like all government policy are shaped not always by what’s ideal, but by the bottom line.

County government's Public Defender office presently provides indigent legal counsel to residents charged with a crime without means to afford their own attorney. In Family Court, judges presently assign private attorneys not on the county payroll, who the judges argue are actually cheaper in that the county does not pay overhead for private attorneys. The judges also argue the typical criminal matter is simpler since plea bargains are standard, but that in family court cases emotions are high-charged, outcomes are less certain and basic legal representation includes night and weekend work when visitations tend to take place.

The fields of criminal law and family law are incongruent. Criminal law is punitive, seeking to punish criminal acts while serving public purposes. It exercises the power of the State to satisfy society’s need for retribution, while deterring future crime, and denouncing wayward conduct. The role of family law however is not to send normative messages or determine guilt but to remedy practical problems with the goal of stabilizing or preserving families. Family law is not intended to be punitive, and often considers the interests of all involved family members particularly children. Wherein a typical criminal case will have two parties — the prosecution and the defense, in family court it is not uncommon to find three, four or five parties all represented separately by counsel (children, grandparents, aunts, uncles, etc.). Privately assigned counsel will still be needed for these third parties even if the county adopts a public defender model since the public defender will be conflicted from taking more than one side in a case.

What's being decided then is whether the County should hire two attorneys to reduce the caseload of the current private attorneys. These salaried employees who will enjoy county overhead and benefits will only be available to clients between the hours of 9-5, Mondays through Fridays when not in court. They will be conflicted from taking neglect or child abuse cases as the County (Child Protective Services) brings the charges. They also may be conflicted from domestic violence cases if the matter is also being tried in criminal courts. The judges say it’s a bad idea. It’s too bad in this day of tax caps and stringent budgets that reason and quality of service must take backseats to new revenue lines.