Chuck Short, Clark County District Court administrator, says he is open to the notion of having a formal contract office. Photo by Gary Thompson.

A Review-Journal investigation has prompted court officials to recommend significant changes to Clark County's indigent defense system.

"It makes us think, 'Why are we doing it this way? What ways could we do it better?'" Chief District Judge Kathy Hardcastle said in response to the newspaper's findings about the contract attorney system. "This may help us recognize where there are abuses in the system."

A five-judge committee met earlier this month, and on Thursday it presented to Hardcastle its recommendations for reforming the 20-year-old contract system.

The proposed changes include vastly reducing the oversight role of individual judges, increasing scrutiny of attorneys' performance and billing and adding financial incentives for contract defenders to take cases to trial. The current system, say critics, encourages attorneys to avoid trials by pressing their clients into plea-bargain deals.

"Some of the things brought out (in the newspaper's investigation) are fulcrums for positive change," said District Judge Stewart Bell, the head of the committee, whose work is ongoing.

The committee's recommendations will be discussed at a full meeting of District Court criminal judges in April, Hardcastle said. If approved, the changes will go into effect July 1.

The county, according to indigent defense experts and court officials, has two basic options: improve the existing contract system or completely replace it.

The committee of judges advised fixing problems with the system, which currently violates most American Bar Association guidelines for indigent defense delivery.

Gary Peck, executive director of the American Civil Liberties Union of Nevada, said he hopes Clark County follows through on its pledge to address deficiencies in the contract system.

"There is no institutionalized structure in this system," Peck said. "It is in desperate need of reform."

In the current system, judges have hiring and firing authority over contract defenders, who are paid a flat monthly fee of $3,000 to defend accused criminals the public defender's office cannot because of a conflict of interest. Contract attorneys are also called "conflict attorneys." However, for certain classes of serious felonies, judges get to select lawyers who are paid hourly, and frequently give those better-paying assignments to their contract attorneys.

David Carroll, research director for the National Legal Aid and Defender Association in Washington D.C., said a continuation of the status quo is not an option.

Carroll was the principal author of a 2003 report that was critical of operations at Clark County's public defender's office, and influenced later reforms there. The contract system is not part of that office but serves a similar purpose, and Carroll said problems with the contract system will grow worse if not addressed.

The role of the judiciary in the process has been the real conflict, Carroll said, because the system could encourage an attorney, who wants his contract renewed, to focus on pleasing the judge who controls the contract, to the possible detriment of his client.

The committee of judges recommended a modified version of a method used in federal court in Nevada to assign lawyers to indigent defendants.

Federal judges select "panel attorneys," private lawyers who are recommended by an independent board and approved by every judge. Once on the panel, the attorneys are randomly assigned to cases in different courtrooms and paid an hourly fee for all cases.

That method eliminates appearances of impropriety that stem from individual judges hand-picking attorneys to appear in their courtrooms on a regular basis, said Chip Siegel, a contract attorney who also defends indigent clients as a panel attorney in federal court.

"If we set up something like that in the county system, you'd have to apply, and they'd look at your credentials and decide whether you're acceptable or not," Siegel said. "That's the best way to do it."

The newspaper's findings included that some conflict attorneys spend a disproportionate amount of time on serious felony cases that pay hourly, leaving little time for the many other cases they have been assigned.

The trial rate of contract defenders in District Court during a recent one-year period was only a little more than 1 percent on cases that were not paid hourly, a newspaper analysis showed.

In a 10-page report, the committee rejected hourly payment for all cases handled by contract defenders, citing expense and concern that such a system might replace the perceived incentive to plea-bargain all cases with a perceived incentive to go to trial even when a plea deal might be in the client's interest.

Instead, the committee proposed paying contract defenders an hourly fee for time spent at jury trial.

The committee recommended that a board comprised of judges and other court officials screen applicants for contract attorney positions, and submit a list of the most qualified to judges. Courtroom assignments for contract lawyers would be made at random.

A separate list would be compiled for defense attorneys seeking hourly appointments to especially serious felony cases. Judges could assign hourly cases only to attorneys on that list, and could assign no more than two cases per year to the same attorney.

Those hourly assignments have routinely gone to contract defenders, some of them unseasoned, as payback for handling many other cases for little pay.

Mark Kennedy, the director of the Office of Contract Counsel in Maricopa County, Ariz., said Clark County could also consider increasing the monthly stipend of contract attorneys to ensure they get the highest caliber of attorney.

Carroll said the contract defender system would benefit greatly from a formal administrative body to oversee the attorneys, set standards, and monitor performance and complaints.

In Phoenix, private attorneys who contract with the county to defend indigent clients are part of a formal office that provides investigators and oversight. Unlike in Clark County, jail inmates in Phoenix can call their attorneys free of charge, a reform that Kennedy's office fought for.

District Court Administrator Chuck Short said he is open to the idea of a formal contract office.

"We've had discussions internally about seeking a unit of the court that would be there to manage and provide quality control for these groups of attorneys," Short said.

Short said court officials already are taking action to improve the county's system for reviewing bills submitted by appointed lawyers, some of which the newspaper found to be excessive.

The committee proposed that Short's office adopt a requirement that conflict defenders submit monthly statements detailing work done on all cases that month. A review of those statements would allow court administrators to more closely monitor performance, the committee concluded.

A county financial officer would also perform random and targeted audits of certain bills.

Carroll said court officials should also monitor the amount of privately retained work of contract attorneys.

"There's a point where a person can only handle so many cases ethically," Carroll said. "I'm sure there are conscientious contract attorneys trying to do what they can for their clients, but no one is ensuring that."

Other court systems, like the one in Seattle, limit the number of cases contract attorneys can be assigned. But the committee of judges did not address this aspect of the system.

The system could benefit in other ways from more structure and oversight, court officials said.

Judges, for example, have historically allowed lawyers to share contracts or subcontract them out to other attorneys.

Until recently, one veteran attorney with a contract allowed a younger associate to make the vast majority of his court appearances. The associate meanwhile had a contract of his own, effectively doubling his contract caseload.

"I would not encourage judges to let that kind of thing happen," Hardcastle said.

The committee did not specifically address that type of situation and also did not weigh in on the issue of formal qualification standards for defense lawyers.

Currently, Nevada only has standards for attorneys in capital murder cases. As a result, any attorney can be appointed to serious felony cases, including noncapital murder and sexual assault.

Other states, including Indiana, have minimum qualification requirements for public defenders and contract attorneys seeking to handle a wide range of felony cases

Short called on the Nevada Supreme Court to issue a list of attorneys across the state who are qualified to represent defendants in death-penalty cases, something he says currently does not happen.

The committee rejected for now the idea of expanding the responsibilities of the county special public defender's office, which currently handles only murder cases and cases having to do with termination of parental rights. The office's total budget is currently about $2.4 million. The contract system is expected to cost about $5 million this year.

Similarly, the committee opposed for now the creation of a new alternative public defense office, citing concerns over cost.

Clark County Public Defender Phil Kohn is among those who believe the county should do away with the contract defender system altogether. He favors expanding the duties and number of special public defenders.

"It would be easy to expand that office," Kohn said. "The framework is already in place. You'd just have to put in attorneys who would do the lower-level cases."

Short said the public defender's office under Kohn's management shows the advantages of having a formal county entity in charge of indigent defense.

"That was a small-town public defender's office until he brought a modern and professional approach to operating the office," Short said.

County Special Public Defender David Schieck estimated that an expansion of his office would necessitate about 25 additional salaried positions.

Despite the cost, that option has been embraced by other court systems.

Washoe County, which has used contract defenders since 1993, is the latest jurisdiction to expand its indigent defense system.

In July, a secondary public defender's office will open in Reno.

"It is best to have attorneys who are exclusively employed and trained, with budgets for expert witnesses and investigations," said Washoe County Public Defender Jeremy Bosler, who helped launched the new office.