Abolishing Flat Fees
About Flat Fees
What Are Flat Fees?
Flat fees pay attorneys a lump sum, no matter how much they work on a case. Whether an attorney spends five minutes explaining a guilty plea to a client or dozens of hours researching and litigating a case, they are paid the same amount. In fact, the less time attorneys spend on a case, the more lucrative the fee.
Do they undermine public defense?
Yes. Flat-fee contracts create a financial conflict of interest by disincentivizing work. They fail to limit attorney caseloads, indirectly limit access to investigators and social workers, and do not require oversight and supervision. It is therefore of no surprise that flat fees are associated with worse representation, higher incarceration, and less safe communities.
For these reasons, the State Bar, the ABA, California’s Office of the State Public Defender, and many others have all called for flat fees to be abolished.
What solution do we advocate for?
The Fair Representation Act (AB 690) would finally fix the problem by banning flat-fee contracts and providing defense attorneys with the resources they need to help their clients with reentry and rehabilitation planning. The bill will be an important first step in improving California’s broken indigent defense systems.
KEY FACTS:
Counties that rely on flat-fee contracts spend 159% more on prosecution than public defense.
8 of the 10 counties with the highest incarceration rates in the state use flat fees exclusively for public defense, and all of the top 5 do.
Tracking the Bill:
✔️ passed in the California Assembly
✔️ now advancing in the California State Senate for a vote
For more information about flat-fee contracts, read our recent report here.
Our Local Efforts
The FAC Flat Fee Contract is Harming the Community in Madera County
Madera County is in the top 25% in per capita state prison incarceration rates
Madera County is in the top 25% in per capita in jail incarceration rates
Madera County has higher rates than every surrounding county - including Fresno, Merced, Stanislaus, San Joaquin, Mariposa, San Benito, Monterrey, Inyo and Mono.
A CalMatters investigation found that the private law firm employed by Madera, Fitzgerald, Alvarez, & Ciummo (FAC) takes on sky high caseloads.
FAC was less likely than other defense attorneys to independently investigate cases, challenge the prosecutor’s case, go to trial, or even speak to their clients.
FAC handled more than 6,000 cases in Madera last year, yet attorneys shared only two full time investigators. By comparison, prosecutors had 13 full time investigators, in addition to the investigative powers of Madera’s Sheriff and police departments. One of FAC’s partners, Richard Ciummo, compared public defense to a “grocery store”, calling it a “high volume, low profit business.”
FAC founder, John Barker, is a former sheriff deputy who was indicted on charges of using excessive force against protesters and later served as police chief of Huron, California. He’s quoted as saying “ I don’t have a lot of sympathy for criminals.”
FAC backed Frank Bigelow, who co-authored a punitive bill that would increase punishments for petty drug possession, and recently, the firm donated taxpayer money to Nathan Magsig, a proponent of ICE and its violent, thuggish tactics.
✔️ Madera County’s board of supervisors has paused awarding long term contract with the FAC law firm for the first time in years, instead authorizing only a 6 month contract while the County considers how the county provides legal services to the County’s most vulnerable.
✔️ The California Office of the State Public Defender has worked with many counties, including those in the Central Valley, to assess a county’s public defense system, make recommendations and provide technical support at no cost to the County.
Wren Principal Josh Schwartz joined Hunter Parnell, host of the Public Defenseless Podcast, to speak about the impact of flat fee public defender contracts in California. Josh discusses findings from our report, Contracted to Fail: How Flat-Fee Contracts Undermine the Right to Counsel in California, which uncovers troubling patterns within the model of flat fee contracts that undermine the overall quality of defence for Californians.
We hosted a briefing on the Fair Representation Act (AB 690), authored by Assembly Member Nick Schultz. He was joined by Brendon Woods (Chief Defender, Alameda County), Kate Chatfield (Executive Director, California Public Defenders Association), Professor Sean Kennedy (Loyola Law School), and Raj Jayadev (De-Bug) in a conversation led by Leon Parker of the Wren Collective. Our speakers made it clear: Flat-fee contracts hurt not just clients but entire communities here in California. The Fair Representation Act offers a clear path forward in safeguarding liberty and improving public safety.