Lawyers at war over conflict counsel

Say new agency a violation of Fla. Constitution

By Pat Gillespie
pgillespie@news-press.com
Originally posted on September 18, 2007

Private defense attorneys statewide are trying to block a new law they say is unconstitutional.

The Florida Association of Criminal Defense Lawyers has asked the state's attorney general to file a lawsuit against the governor and others, attempting to block a July 1 law that establishes five Regional Conflict Counsels, or positions that will act as second public defenders for indigent criminal defendants.

Association President A. Russell Smith said the positions are unconstitutional because public defenders are elected, not appointed, as the five regional conflict heads were by Gov. Charlie Crist on Aug. 21. According to Florida Statutes, Public Defenders must be elected and serve four-year terms. But the regional counsel heads, which statutes say are characterized as public defender offices, were appointed.

"The Legislature cannot create an office by appointment that the constitution says should be elected," he said. "This would be like the Legislature creating a position of governor that's appointed and not elected — that's just something they don't have authority to do."

The conflict counsel was established with the new law July 1. The law also changed the way court-appointed private attorneys were paid, including changing pay rates and waiting until the completion of cases before the state pays them. As a result, many private attorneys have taken their names off the list judges use to provide attorneys for defendants who the public defender can't represent because of a conflict of interest.

"There are widespread problems in finding competent lawyers to represent people accused of serious crimes," Smith said.

Attorney General Bill McCollum spokeswoman Sandi Copes said no timetable has been established for making a decision whether to file a complaint.

"We've received that specific request," she said. "We are reviewing it."

Smith said the association may be willing to file a lawsuit if the attorney general doesn't proceed on their behalf.