An Interesting Court-Appointed Fee Arrangement

 Posted on January 15, 2009 in Uncategorized

Here's People v. Doolin, a California Supreme Court case in which the convicted defendant complained that he hadn't received effective representation because there was a conflict of interest between his lawyer and him. The lawyer had an arrangement (standard at that time) with the county under which he estimated the amount of expert and investigative expenses, he got paid that much for those expenses, and he got to keep whatever he didn't spend.

In the particular case, the lawyer estimated $60,000 in expert and investigative expenses, and spent $8,676.15 (including "$4,500 for services provided by the defense psychiatrist and psychologist"), so he kept (as I read it) $51,323.85 of the money that the county had given him to spend on experts and investigators, as well as his agreed $20,000 fee, to keep his client from being sentenced to death (shades of the Alabama jail food scam?).

The California court correctly noted that there is a potential for conflict in any lawyer-client relationship:

‘[A]lmost any fee arrangement between attorney and client may give rise to a "conflict." An attorney who received a flat fee in advance would have a "conflicting interest" to dispose of the case as quickly as possible, to the client's disadvantage; and an attorney employed at a daily or hourly rate would have a "conflicting interest" to drag the case on beyond the point of maximum benefit to the client. [¶] The contingent fee contract so common in civil litigation creates a "conflict" when either the attorney or the client needs a quick settlement while the other's interest would be better served by pressing on in the hope of a greater recovery. The variants of this kind of "conflict" are infinite. Fortunately most attorneys serve their clients honorably despite the opportunity to profit by neglecting or betraying the client's interest.'

(Why the doubt quotes?)

It then went on to rule that California's standard for representation by potentiallyconflicted counsel should not be higher than the federal constitutionalstandard, and analyzed the conflict in light of Strickland v. Washington and Mickens v. Taylor, ultimately finding that Mr. Doolin was required to and couldn't show that he was prejudiced by his lawyer's conflict of interest.

Of interest to capital litigators will be the mitigation investigation performed by the lawyer:

Counsel spoke with defendant's mother, sister, cousin, and friends. Two experienced mental health professionals found no evidence defendant manifested any significant psychological conditions.

So, even though the lawyer had a personal financial stake in minimizing the mitigation investigation, and even though the mitigation investigation was objectively woeful, since Mr. Doolin couldn't show on habeas that a real mitigation investigation, an order of magnitude more expensive, would have turned up any actual mitigation evidence, Mr. Doolin was not entitled to relief.