An ACLU inquiry has prompted Lebanon County courts to reexamine how attorneys are appointed to cases where a public defender has a conflict of interest preventing representation of a given individual.
Under U.S. Supreme Court case law, the Sixth Amendment to the U.S. Constitution requires that criminal defendants who cannot afford to hire an attorney at prevailing rates must be provided with a competent lawyer to represent them at no cost.
Normally, this means that “indigent” defendants get a public defender, paid for by their county of residence. However, if the public defender has a conflict of interest – such as often happens when one crime leads to several arrests – the court can compel a private attorney to represent an indigent. Such “court-appointed” attorneys, who serve involuntarily, must also be paid by the county.
Pennsylvania’s Supreme Court has added that a “competent lawyer” isn’t just any lawyer, but one who has the training and experience needed to provide effective representation to indigent criminal defendants.
The American Civil Liberties Union says recent complaints to their office indicate that Lebanon County’s criminal-conflict-appointment (CCA) system is not in compliance with the law that guarantees defendants’ rights to a competent attorney counsel under the Sixth Amendment. Instead, the ACLU alleges that the local court appoints all attorneys, regardless of whether they have any experience handling criminal cases.
In a letter delivered on Oct. 28 to Lebanon County President Judge John C. Tylwalk, the ACLU writes that these complaints have “raised serious concerns that the county’s practice of conscripting unwilling private attorneys who lack experience in criminal law or procedure to represent indigent criminal defendants violates the Sixth Amendment and the Pennsylvania Constitution’s requirements of effective representation and can result in irreparable harm to the accused.”
The letter further states that, “Under the present conscription system, which apparently enlists all attorneys with offices in the county, indigent defendants are at a grave risk of constitutionally deficient representation and inexperienced attorneys’ professional ethical obligations are threatened by their participation.”
The ACLU requested in late October, and held last Thursday afternoon, a Zoom meeting with Judge Tylwalk to explore ways to resolve these issues.
ACLU legal director Witold J. Walczak, who authored the letter that also contains the signature of two Philadelphia-based lawyers and an ACLU colleague, sent an email to LebTown commenting on last week’s meeting with Tylwalk.
“We appreciate President Judge Tylwalk having a frank discussion with us about the situation and I feel comfortable in saying both sides found it constructive,” wrote Walczak. “The ACLU will remain available to assist Lebanon County in developing a conflict-counsel system that ensures people charged with crimes receive constitutionally adequate representation.”
Tylwalk told LebTown that the meeting was respectful and productive for both sides.
“I felt we had a good conversation that was productive and what we might look at moving forward,” said Tylwalk.
The ACLU had reached out to Tylwalk for a meeting to seek solutions to what they say are four primary issues. The ACLU contends:
- Lebanon County is not following best practice standards that typically involve inviting attorneys to participate voluntarily.
- The county’s current system may lead to inexperienced appointed attorneys violating legal ethics rules, which could result in disciplinary action against them, even though they were forced by the court to represent a defendant.
- Lebanon County is not following established nationwide best practices and those established by similarly-sized counties.
- The conflict-appointment-fee caps may incentivize ineffective legal representation.
The ACLU says that the court-imposed flat fee payment system that caps court-appointed attorneys’ fees, no matter how much work they do on a case, is an incentive to do less work and cut corners. Court-appointed attorneys in Lebanon County frequently get paid at substantially lower rates than those charged by privately retained attorneys, even though Pennsylvania’s Public Defender Act requires that they “shall be awarded reasonable compensation.”
No other participants in Lebanon County cases involving indigent defendants – judges, prosecutors, public defenders, probation officers, and sheriffs – are forced to work for less than their normal rates of pay.
The ACLU letter points out that no other fifth-class county in Pennsylvania “utilizes this system and we believe that there are far better, constitutionally sound systems for providing representation in conflict cases.”
There are six other fifth-class Pennsylvania counties whose population, as of the 2020 U.S. Census, is similar to Lebanon County’s and range from 90,000 to 144,999 residents.
Tylwalk said Lebanon County officials are looking at a number of different conflict-counsel options, but added more facts are needed about how other fifth-class counties in Pennsylvania handle it.
“They provided us with a kind of a rundown on how a number of the other fifth-class counties handle this issue,” said Tylwalk. “(But) I felt it was devoid of factual background, so we’re kind of checking on that aspect of things.”
Tylwalk said, for example, that the ACLU could not tell him how many other cases other fifth-class counties had that could not be represented by their public defenders’ office and had to be conflicted out to other lawyers.
“I know what the numbers are in my county, but if you propose something to me that seems to be working in another fifth-class county, while that’s all fine and good and I will look at that, I would still like to know what those numbers are,” added Tylwalk. “If they are dealing with substantially less cases than what we have to deal with, maybe it is an easier resolution than what we have to deal with.”
While the ACLU believes that the cap system is an issue that impacts the legal representation of criminal defendants, Tylwalk said removing the fee caps could reverberate financially throughout Lebanon County.
He added that the county is currently surveying the county’s bar association and other non-bar members to ascertain who might be willing to participate in a voluntary system and what kind of fees those attorneys would expect to be paid.
“The compensation issue is not an issue in a vacuum,” said Tylwalk. “We’re talking about taxpayer dollars being used to fund this. It is general fund money, it’s money that’s budgeted. If we pay attorneys more to pay for these services, maybe the county will have to raise taxes. I don’t really know, but it is a fairly complex issue, and this criminal appointment situation is just really one part of it, so we’re really looking at the overall appointment structure and fee structure.”
The conflict-appointment issue came to the attention of the ACLU after five emergency motions to withdraw as court-appointed conflict counsel were filed in Lebanon County Court by attorney Tucker R. Hull of Annville.
Hull seeks to be removed as counsel from cases he believes he is unqualified to handle. Hull wrote LebTown saying he doesn’t want to comment on the record since these five motions are still pending.
A hearing to rule on Hull’s request has been scheduled for Dec. 30, according to Tylwalk. Tylwalk added that those five cases had been originally assigned to the county’s public defender’s office but were returned to the court system for other legal representation since a conflict of interest exists within the public defender’s office.
Judge Tylwalk said there is no timetable to resolve this issue but would prefer it be settled no later than the first part of 2023.
“We would like to get a resolution to this sooner as opposed to later,” said Tylwalk. “As I said, we’re looking at a couple different means to address this and some means to address the criminal issue, in particular. … We’ve got different things going on in that regard. I am sure we will have a discussion in the future once we come up with a game plan. This was something that was on our mind, frankly, even before the ACLU ever sent that letter to us.”
Lebanon County Bar Association President Jason Schibinger said the county bar association was not invited to the Zoom meeting, but is interested in the outcome of the court case on Dec. 30.
“I can say that I have not spoken to the ACLU about the meeting but that the bar is concerned that there is adequate representation in criminal matters and that defendants have the right to counsel and meet the (financial) requirements of court-appointed counsel,” said Schibinger. “You don’t automatically have the right to (free) counsel, you do have to meet certain financial requirements to get counsel.
“We want to make sure those defendants have adequate representation for those matters.”
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