Counsels need to be elected

Attorneys who take over conflict-of-interest cases are public defenders, a judge says.

By COLLEEN JENKINS, Times Staff Writer
Published December 22, 2007

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"Regional counsels open for business," the Florida Bar News Dec. 15 headline read.

Not so fast.

Late Thursday, a Leon County judge struck down the law that allowed Gov. Charlie Crist to appoint five men to take over conflict-of-interest cases from public defenders' offices.

Circuit Judge P. Kevin Davey ruled the regional counsels are essentially public defenders and should be elected, not appointed. He said the law, touted as a cost-saving measure when it passed this year, "amounts to an attempt to amend the Constitution by legislative fiat."

An immediate appeal by the Florida Attorney General's Office will keep the regional counsel offices open for now.

But the judge's finding puts those attorneys in an uneasy spot.

Across the state, the offices have already begun representing indigent clients in conflict criminal cases, as well as child dependency and guardianship matters.

Conflicts arise for the public defender's office in criminal cases when two or more defendants are involved in the same case.

Those cases previously were handled by private attorneys. But after the budget for conflict cases soared in recent years, legislators decided they could save money by creating a new bureaucracy. The Legislature allocated $50-million plus some startup costs for the first year of the five offices, one for each of the state's appellate districts.

Critics say the offices are underfunded and understaffed, as well as unconstitutional. Counties complained about having to pick up costs for office space and other support services.

In September, the Florida Association of Criminal Defense Lawyers filed a formal challenge. The state Supreme Court referred the case to Davey, who heard oral arguments on Wednesday.

The judge declined to rule on the wisdom of the Legislature's policy decision or the constitutionality of its funding. But he said legislators and the governor exceeded their authority in allowing the regional counsels to be appointed to four-year terms.

The governor's office did not respond to requests for comment Friday.

A. Russell Smith, president of the defense attorneys association, praised the judge and the two volunteer attorneys who argued on behalf of defense attorneys statewide.

"From the beginning of this process," Smith said, "our primary concern has been to ensure that Florida citizens accused of committing crimes received a vigorous defense from competent lawyers armed with the necessary resources to protect their Constitutional rights."

Jackson Flyte, regional counsel for the 14-county district that includes Hillsborough, Pinellas and Pasco, didn't return a call for comment Friday.

He closed his private practice in Bartow after being appointed to the $80,000-a-year position. According to the Florida Bar News, he had secured office space and hired 56 staff members as of early December.

Colleen Jenkins can be reached at cjenkins@sptimes.com or 813 226-3337.