Additional funding is needed to allow for increased compensation of private attorneys who are willing to take cases where a defendant has a constitutional right to conflict-free counsel and DPA’s local trial office is ethically prohibited from representation.
The Kentucky Bar Association (KBA) Board of Governors unanimously adopted a resolution on November 18, 2011 endorsing findings and recommendations that call for the Governor and the Kentucky General Assembly to improve the system for the representation of indigents in conflict cases, issued a press release and communicated to this critical need to the Governor in a December 21, 2011 letter.
The nine recommendations of the KBA Task Force relate to the funding and structure of the system, including allocation of an additional $5.2 million to implement changes that will bring the system into compliance with the ethical and constitutional requirements of the Kentucky Supreme Court and with the professional standards set out by the American Bar Association.
In September, 2011, KBA President Margaret E. “Maggie” Keane appointed a special KBA task force comprised of bar leaders, current and former judges, current and former legislators, a former Commonwealth’s Attorney and public defenders, in response to concerns expressed by many members of the bench and bar regarding chronic problems in cases involving conflicts and the appointment of counsel. The KBA Task Force on the Provision and Compensation of Conflict Counsel for Indigents was asked to review those concerns, study the system and make recommendations that would improve the administration of justice in the courts of the Commonwealth of Kentucky.
Members of the KBA Task Force on the Provision and Compensation of Conflict Counsel for Indigents:
- Julia H. Adams, Retired Judge, 25Judicial Circuit
- Michael D. Bowling, Former Chair, House Judiciary Committee
- Jerry J. Cox, Chair, Kentucky Public Advocacy Commission
- Charles E. (Buzz) English, Jr., Past-President, Kentucky Bar Association
- Jeff Hoover, Minority Floor Leader, Kentucky House of Representatives
- William E. Johnson, Chair, Frankfort
- Margaret E. "Maggie" Keane, President, Kentucky Bar Association, 2011-2012
- W. Douglas Myers, President-Elect, Kentucky Bar Association
- Lewis G. Paisley, Retired Judge, 22ⁿJudicial Circuit
- Phillip R. Patton, Circuit Court, 43 Judicial Circuit
- Daniel T. Goyette, Chief Public Defender, Louisville-Jefferson County Public Defender Corp.
- Edward C. Monahan, Public Advocate, Department of Public Advocacy
The 2011 Report produced by the task force emphasized that it is important to guarantee that there is equal justice for the poor and that due process is ensured by competent, conflict-free counsel. Its findings, which resulted from a comprehensive review of Kentucky’s current system for providing counsel to indigents in conflict cases, indicated significant problems and serious deficiencies. Its recommendations reflect reforms and improvements necessary to correct those issues in keeping with recognized standards and best practices.
William E. “Bill” Johnson, a prominent criminal defense lawyer who chaired the Task Force said when the Report was released, “both justice and public safety are advanced by the provision and compensation of conflict counsel for indigents. Our recommendations are common sense steps to bring reform to a system that is currently inadequate in its compensation levels. We are also recommending improvements in the structure used to provide conflict counsel. Additional funding of $5.2 million is needed to properly accomplish those objectives. We presented these recommendations in person to the Governor in December 2011. We look forward to presenting them to legislative leaders.”
KBA President Keane said, “it is axiomatic that counsel provided to indigent defendants must be conflict-free and properly compensated in order for justice to be achieved. As an integrated bar representing all Kentucky lawyers, the Kentucky Bar Association is interested in improving access to qualified lawyers and obtaining just results for all parties in criminal cases. By forming this task force, conducting this study and facilitating discussion of problems and solutions, the KBA hoped to promote professionalism and provision of the funding necessary for a proper conflict representation system. It is our responsibility as lawyers and officers of the court to take a leadership role and work toward that end, and we have resolved to do so.”
National standards require Kentucky to address the current ethical and financial problems with the conflict system. The Kentucky Association of Criminal Defense Lawyers endorsed the recommendations in a November 29, 2011 Resolution stating, “the American Bar Association’s Ten Principles of a Public Defense Delivery System (2002) contain the most widely accepted and cited standards for the establishment and administration of public defense systems in the country. U.S. Attorney General Eric Holder termed the ABA’s ten principles the ‘basic building blocks’ of a properly functioning public defense system.” The KACDL Resolution quoted the eighth of the ABA Ten Principles which states: “Contracts with private attorneys for public defense services should never be let primarily on the basis of cost; they should specify performance requirements and the anticipated workload [and] provide an overflow or funding mechanism for excess, unusual, or complex cases.”
The 2012 General Assembly did not provide any additional funding for conflict representation.
In a December 3, 2013 letter to the Governor, Kentucky Association of Criminal Defense Lawyers President Larry Simon reiterated the need for adequate funding.
In a December 20, 2013 letter to the Governor, President Tom Rouse and Bill Johnson again communicated the need to resolve the conflict problems that would now take $5.6 million to properly fund. They attached a memorandum about the unconstitutional nature of the current system describing the vulnerability of it to legal challenge.
The 2014 and 2016 General Assemblies did not provide any additional funding for conflict representation.