Although it sits cheek-by-jowl with San Francisco, home to one of California’s most vaunted public defender’s offices, San Mateo County doesn’t have a similar agency. Rather, it contracts its indigent defense out to private attorneys vetted by the San Mateo County Bar Association and paid by the county.
It is the state’s largest private defender program. Chief Defender John Digiacinto, who oversees it, says the county saves money by hiring lawyers as independent contractors, rather than employees.
“Don’t have to pay for pensions or medical care,” Digiacinto explained. “We don’t have to pay for a building for the lawyers to work in, or for cars, or computers, because they’re all in private practices.”
It’s impossible to say whether privatization is truly more cost-effective, because San Mateo doesn’t keep track of the cost per defendant. But San Mateo County’s annual defender budget is significantly lower than that of San Francisco’s public defender office — $17 million compared to about $34 million, including outside counsel fees. In contrast, San Francisco’s population is only about 12 percent larger than that of San Mateo County.
San Francisco Public Defender Jeff Adachi believes San Mateo County’s system lacks the same degree of accountability as his own office.
“In our case, we respond very quickly to a complaint about an attorney who’s not performing well,” he said, explaining that it’s easy for him to train and supervise his staff very closely, since they all work in the same office.
In San Mateo County, that process is more complicated and scattered. The various attorneys report to the Bar Association, which reports to the Board of Supervisors, which supplies the funding.
Adachi said those extra hoops could make it harder for a poor defendant to fire a bad attorney, which is problematic. He added that his office also provides services like linking defendants to social workers, or expunging criminal records that aren’t available in San Mateo County.
The larger question is whether a cheaper defense is necessarily a lower-quality one. In San Mateo County, the district attorney’s budget dwarfs that of the private defender program by about $8 million a year. In San Francisco, on the other hand, Adachi said his budget is commensurate with that of District Attorney George Gascón.
Adachi wondered whether a private system incentivizes lawyers to provide bare bones defense for their clients. But Digiacinto says his system’s economies leave room for a high hourly legal rate, which increases once a case goes to trial.
Stanford law professor Robert Weisberg believes Digiacinto has found ways to modernize a system that could be retrograde without such safeguards. Having a graduated fee structure helps discourage lawyers from making “quick and dirty” guilty pleas, Weisberg said, and it provides a rational economic incentive for attorneys to be as plodding and deliberate as possible.