BY BUDDY NEVINS
Fort Lauderdale lawyer Ralph Behr has been attacking the Public Defenders Office for years.
After I posted a widely-distributed memo from Behr yesterday, the following letter was e-mailed to me.
It lays out the PDs Office’s position concerning allegations they solicit clients and don’t check whether they are poor enough to qualify for free representation.
I removed the defendant’s name.
I thought you would be interested.
Here it is:
August 21, 2007
Ralph S. Behr, Esq.
888 SE 3rd Avenue, Suite 400
Fort Lauderdale, Fl 33316
RE: Mr. X, Case Number XXXXX
Dear Mr. Behr:
Mr. Finkelstein provided me your letter of August 10, 2007 and asked me to respond. Your letter suggests that our office is soliciting clients in violation of Florida Bar rules.
I take exception to the statement that the Public Defender is engaged in the unauthorized solicitation of clients. FRCrP 3.111 mandates that counsel shall be appointed to an indigent defendant “when the person is formally charged with an offense, or as soon as feasible after custodial restraint, or at the first appearance before a committing magistrate, whichever occurs earliest. Also, pursuant to F.S. 27.52, “if the person seeking appointment of a public defender is incarcerated, the public defender is responsible for providing the application to the person and assisting him or her in its completion and is responsible for submitting the application to the clerk on the person’s behalf.
The Public Defender and its Early Representation Unit have tried very hard to make sure that only the un-counseled indigent are appointed the Public Defender. The first questions asked of a defendant are do you have a lawyer, can you afford a lawyer or do you have any money for a lawyer? Only when the answer is no does the Public Defender interviewer ask the question do you want the services of the Public Defender and, if the answer is yes, begin the application process as is mandated by law. There have been many cases where a person has declined the services of the Public Defender. There have also been many cases where a person has requested the services of the Public Defender and the clerk has determined them to be Not Indigent.
We accept the information that is filled out on the application at face value and are not required to investigate its accuracy. I find it ironic that you complain about this office’s failure to investigate a client’s representations about their finances, yet you admit in your letter that you did not verify his representations to you. I do not know if Mr. X lied on his application(s) for the Public Defender, but if he did lie, our staff is not responsible unless they knew about the lies and participated in the deception. Nowhere in your letter do you state that Mr. X told you that he informed the Public Defender about his hidden assets.
As far as Mr. X’s case is concerned, he was magistrated in person in open court before a domestic violence division judge. In reviewing the clerk’s office file, it appears that Mr. X filled out two separate applications for the Public Defender. The first one was on January XX, 2007 where the clerk declared him to be indigent. Subsequent to that time, Mr. X hired a private attorney and we withdrew. Then on June XX, 2007, there was a determination of counsel hearing after the court granted a privately retained attorney’s motion to withdraw. Mr. X filled out a second application for Public Defender, wherein he was declared indigent again. Apparently, after getting a public defender for the second time, Mr. X decided to go out and try and hire another private attorney.
The bottom line is that your letter makes three false assumptions. First, that assisting a person who requests the services of a public defender is soliciting business. That is not the case and in fact we are required to do so by law and rule. Second, you believe that assisting someone in filling out the application is somehow criminal if the applicant lies. That would only be true if the public defender employee knew of the falsehood at the time. Third, that the Public Defender has an affirmative duty to verify the information provided by the applicant. Again, this is not true.
I trust that after you have had the opportunity to review the rules and statute cited, you will see that our goal is not to represent non-indigents. Our goal is to comply with the law and make sure that unrepresented indigent defendants do not sit in jail unrepresented.
Contrary to what you write in your letter that you want to avoid this office any embarrassment, I believe your goal is to try and intimidate this office into ignoring our responsibilities under the law. I believe that you and others are upset that the Public Defender started providing timely representation as is required by law right after an arrest and not six weeks after an arrest, which was the way it was done for many years prior to Mr. Finkelstein taking office.
Last year during a public meeting of Broward County’s Public Safety Coordinating Counsel, Eric Schwartzreich, the President of the BACDL stated publicly that the Public Defender’s policy of seeing clients right after their arrest and inquiring of their indigency was bad for business and asked us to allow those individuals to sit for a few days without counsel in hopes that they would come up with money to retain private counsel. I told Eric then what I’m telling you now, that this office will not ignore the law and allow indigent defendants to remain in jail unrepresented.
While we are sympathetic to the private bar’s need to make a living, we cannot aid the private bar at the expense of our indigent clients. We will continue to comply with the law and provide zealous representation of indigent defendants that is demanded by the constitution.
Chief Assistant Public Defender
CC: Howard Finkelstein, Public Defender