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Phoenix New Times
Outrageous Fortune
April 19, 2007
By Paul Rubin
 Private
lawyers in Maricopa County child-dependency cases are soaking us for
unbelievable bucks.
The lawyers are scurrying inside
the Juvenile Court building in Mesa on a recent morning like
shoppers on a last-minute run.
They move from the appointment
counter toward their courtrooms, lugging briefcases and working
BlackBerries, faces scrunched up in multitasking concentration.
Small groups are milling outside
the eight courtrooms, waiting for the start of delinquency and
dependency hearings to which they're connected, most often as
participants.
The delinquency hearings concern
children under age 18 who are accused of breaking the law (though
kids charged with serious crimes can be transferred under Arizona
law to adult court).
Juvenile dependency and
delinquency proceedings
happen by the hour at the Mesa courthouse.
Dependency court focuses on
children reportedly abused or neglected by their parents or
guardians to the extent that state child-protection officials or
others have recommended legal intervention.
Those cases typically involve
parents who run the gamut of the simply pathetic (druggies who don't
know up from down) to the malevolent, and children badly in need of
a fresh start, with or without their birth parents.
 One
of the lawyers, a middle-aged woman in a flowing purple dress,
bellows the name of her client.
"That's me," says a diminutive
woman with stringy blond hair, rising from her hard, plastic chair
to shake her new attorney's hand.
"Hi," the lawyer says. "I didn't
know if you were going to make it. I've been trying to call you.
Good. Let's go talk somewhere real quick."
Minutes later, a bailiff enters the
hall from a courtroom and calls the next case.
Juevenile attorney Janelle
McEachern: "I don't have to
speak to every person face to face to understand their story."
The attorney in the purple dress
and her scruffy client step into court, soon followed by another
attorney and a glaring, heavily tattooed man who removes a ball cap
that says, perhaps ironically, "World's Greatest Dad."
Had their hearing concerned a
juvenile delinquent, anyone from the public could have observed the
proceedings.
But this is a dependency case, an
entirely different animal in Arizona courthouses when it comes to
openness.
 As
in Las Vegas, what goes on inside those courtrooms usually stays
there.
Seventeen states in the past decade
opened their dependency hearings to the public, shining a light on
an important process that long has operated in a shroud of secrecy.
But dependency cases in Arizona are
closed to the public unless the parents, guardians or the sitting
judge elect to open them. Dependency courts in Arizona remain a
secret society that exists amid one of our most traditionally
wide-open institutions — the county courthouse.
Superior Court Judge Ron
Reinstein gives high
marks to the county’s juvenile bar.
The man and the woman reappear in
the lobby about 10 minutes after they had entered the Mesa
courtroom. Neither looks pleased.
The woman huddles with her new
lawyer. The tattooed man sticks his ball cap back on his head and
quickly heads to the elevator.
The two lawyers who represented
their respective clients at the short hearing each will bill
Maricopa County's Office of Contract Counsel $1,000 for their
services.
Almost without exception, these and
the other attorneys who work dependency cases under contract with
the county will get paid in full, whether they do the bare minimum
of work or go the extra yard for their clients — children or
parents.
That is the going rate for private
attorneys during the first year of a dependency court case. In many
instances, a judge also will appoint another attorney as guardian ad
litem (GAL) to provide additional support to one of the parties,
usually the child.
That's another $1,000 for the first
year of work.
Attorneys usually have to appear in
court every 60 days during that first year, for status hearings that
rarely last more than a few minutes.
During the second year and every
year after, attorneys for the parents and the GAL may bill $250
annually (the child's attorney gets to bill $400) if a case
continues, which it usually does for at least a few years.
For a child, becoming a ward of the
state means a trip into the netherworld of foster care,
reunification with and separation from their parents, adoption, and
variations on those themes.
At first blush, the money — $1,000
here, $250 there — may not sound like much.
But a New Times examination of
financial reports and other public records shows that juvenile
dependencies are the source of the county's most lucrative
public-law franchise for a small group of private attorneys.
These days, most of the public
discussion about Maricopa County's legal world has concerned the
death penalty, and how an overwhelmed criminal-justice system is
threatening to collapse under the weight of 149 pending capital
cases.
County Attorney Andrew Thomas and
others have suggested that the criminal-defense bar has been making
the big bucks on the backs of county taxpayers, all the while
stalling the death penalty proceedings as long as possible.
Remarkably, though, the
highest-paid dependency lawyers, with rare exception, have been
making more money than peers in private practice who litigate
death-penalty cases under their county contracts.
The undisputed champion of
dependency lawyers for calendar year 2006 was Chandler attorney
Patricia O'Connor, who collected $385,305 for handling hundreds of
juvenile dependency and delinquency cases.
O'Connor collected more from
Maricopa County last year than Bob Storrs, Dan Raynak and Herman
Alcantar, three private defense lawyers who work death-penalty cases
for the county, earned among them in 2006.
Only one criminal-defense attorney
under contract with the county collected more than $200,000 in 2006,
according to billings provided to New Times: Phoenix lawyer
Nathaniel Carr, who was paid $354,800.
Another financial comparison: A
Child Protective Services caseworker and a lawyer from the Attorney
General's Office assigned to work dependency cases make less than
$100,000 a year — combined.
Superior Court judges make about
$135,000 a year, which is slightly more than the annual salaries of
the county's most experienced homicide prosecutors and public
defenders.
"It's presumptively an issue when a
private attorney working as an independent contractor makes more
money than the highest-paid prosecutor or defender," says Peter
Ozanne, assistant county manager for criminal justice. "That, among
other things, including the huge caseloads that some of these
dependency attorneys are carrying, is going to stop."
As of now, however, the
not-so-secret avenue to success as a juvenile dependency lawyer in
Maricopa County is quantity, not quality.
Someone inside the legal system
recently dubbed the busiest (and, not coincidentally, the biggest
moneymakers) of the county's dependency lawyers "case whores," an
ugly phrase that bears analysis.
Obviously, it suggests that
attorneys are taking on every client who comes their way because the
money's so good. And the public record confirms the nasty sentiment.
Attorney O'Connor was able to earn
almost $400,000 in 2006 and is on track for an equally lucrative
2007 because of her sheer number of clients.
A sole practitioner, O'Connor took
on exactly 500 new juvenile cases last year, according to a
spreadsheet provided to New Times by the Office of Contract Counsel.
Those cases came on top of the 789
cases that the county claims she had pending at the start of 2006.
According to the spreadsheet,
O'Connor started this year with 860 cases still pending.
"You've got to be kidding me," one
Superior Court judge said in a typical response when told of
O'Connor's earnings and caseload. "There aren't enough hours in a
day, are there?"
But O'Connor says her records
(collated, she says, by her computer-expert husband) tell a
different story. She says she's working 468 cases, including 316
dependencies, which she admits is a full load, but not nearly what
the county has in its computer.
"I know that it's a lot of cases,"
she says, "but I don't get bar complaints, or complaints from the
judges or, most important to me, my clients. I hope that fact comes
into this discussion."
By all accounts, O'Connor is a real
pro at dependency work, a team player known for taking on cases at a
moment's notice and who, indeed, does get high marks for her work
from the judges contacted by New Times.
"Ms. O'Connor is strong advocate
for her clients, and she always does what's needed, " says Judge
Louis Araneta, who works exclusively on juvenile cases out of the
Mesa courthouse. "There have been several instances when I have
needed to appoint an attorney right at that moment, so I tell my
bailiff to go out in the lobby and see if there are any OCAC (Office
of Contract Counsel) lawyers out there. I don't play favorites, but
Patty has a large caseload and needs to be at the courthouse a lot,
so she is out there a lot and so she has gotten many of those
appointments."
O'Connor employs two full-time
social workers and other assistants to keep up with her intense
schedule, which means an average seven-day, 80-hour work week, she
says.
But by virtue of her position at
the top of the dependency court money tree, O'Connor has become a
lightning rod in a part of the legal system that previously has
operated under cover.
"At this point, I'm not looking
into anything fraudulent that may be going on with any specific
attorney," says the county's Peter Ozanne, "but there definitely has
been a systemic problem, both with our inability, because of the
lack of staffing, to assure quality control, and with the judges who
continue to assign a handful of people case after case after case."
Rich Scherb, a Phoenix attorney
also with a juvenile law practice, notes, "It becomes a huge, huge
burden if you're carrying dozens of dependency cases, much less
hundreds, like a lot of my colleagues. Once you get beyond a certain
number, it just becomes impossible to do your job correctly. I can't
believe that the powers-that-be in this county have let them get
away it."
Scherb himself is not doing so
badly as a contract juvenile delinquency and dependency attorney in
neighboring Pinal County. Records from that county show it paid him
$183,033 in 2006.
Business in Maricopa County also
continues to boom for the dependency bar's biggest guns. In the
first three months of this year, the county paid Patricia O'Connor a
little more than $100,000.
"I didn't make up the pay scale,
and I don't beg for cases," she tells New Times. "I just say, 'You
got a case, I'll do it.' Call me on Christmas Day or any other
holiday, I'll be there. My goal [with] this work is to maybe save a
life or two, and to maybe give some kids a chance. It's what I'm
about.
"So go right ahead and put the
target on me for making the most money. It may be hard to believe,
but I'm not in this for the money . . . I live and breathe this
stuff."
The relative handful of Valley
attorneys who devote the bulk of their practice to juvenile
dependency law rarely make it into the news.
Dependency lawyers long have
embraced the adage that defines their little slice of the legal
system: out of sight, out of mind.
The closed nature of dependency
proceedings had made that easier for the attorneys to lay low.
(Supporters of keeping dependency hearings closed usually cite
privacy concerns, and fears of "re-victimizing" the children
involved. However, positive examples, such as Minnesota, which
opened all of its juvenile hearings in 2002, suggest that such fears
are unfounded.)
According to Mark Kennedy, the
outgoing director of the Office of Contract Counsel, the extent of
the large paydays to dependency lawyers began to reveal itself a few
years ago.
"This is something that we have
been grappling with for a while," says Kennedy, who has been in
charge of overseeing the dependency and delinquency contracts, among
other duties. "I am not unhappy that the general public is finally
going to know about it."
Kennedy says the county is
determined to put a stop to what he calls "the juvenile dependency
gravy train.
"I must admit that I fell into a
trap. Until I became aware of what was going on with these lawyers,
including the money they're making, I assumed that giving an
attorney the benefit of the doubt when he or she was working on
behalf of kids was the right thing to do," he says.
"Shame on me. Many of these people
essentially have created annuities for themselves because
dependencies can stay open forever, or at least until a child turns
18. And let's say Mom has a new child, which isn't at all unusual.
Mom's lawyer will represent her in the new case or cases, year after
year after year, and will continue to get paid for it."
The blunt-spoken bureaucrat, who is
an attorney and former FBI agent, likens the dependency bar "to a
bunch of monks from a smallish order who perform their own
'Gregorian chants,' their own unique legal language."
But fancy courtroom language
doesn't make it death penalty work, Kennedy says, adding that "it
sure as hell doesn't mean that these people should be reeling in the
money like they have been."
Though the stakes in dependency
cases are high, the script learned by judges, Child Protective
Services caseworkers, lawyers, and clients at hearings is repeated
practically verbatim in every case.
Unfortunately for many laypeople,
the terms used in dependency court often are arcane — Latin words
abound, as do acronyms and incomprehensible titles of proceedings
(such as the Initial Permanency Planning Hearing).
Judges and court commissioners
assigned to handle dependencies often place children into foster
care (sometimes for extended periods), order family reunification
services (by law, judges must take pains to try to "reunify"
families, even when the parents clearly are incapable of caring for
themselves), return kids to their parents' custody, or, after a long
process, allow adoptions to proceed and order the termination of
parental rights.
In dependency court, as elsewhere
in Maricopa County's sprawling legal system, any litigant surely can
catch a lousy break, a raw deal. Maybe a down-on-her-luck mom
undeservedly will lose custody of her children for a stretch, or a
child will be placed in a rotten foster-care setting.
But generally speaking, parents who
make continued good-faith efforts to improve their lot — mentally,
physically, emotionally, economically — usually will be reunited
with their child or children.
(Between April and September 2006,
according to a report filed by the Arizona Department of Economic
Security, just 90 severance cases were completed in Maricopa County.
All but one of those ended with termination of parental rights, with
the exception being a case that DES withdrew before trial.)
Janelle McEachern (pronounced
mick-can), another of the county's most prominent (translation: very
busy, very well-paid) dependency attorneys, concedes that her work
"isn't rocket science, and it does take more in the way of
organizational skills than probably anything else. But that doesn't
mean that a lawyer who is experienced in this part of the law isn't
more valuable to a client and to the system by knowing how to
streamline and keep things moving along than a greenhorn."
That dependency law isn't "rocket
science" is one of the few points about which McEachern and Mark
Kennedy at the Office of Contract Counsel seem to agree.
"The language and the process you
see inside dependency court may be unknown to most people, including
other lawyers who don't do that kind of work," says Kennedy, "but
it's pretty basic when you cut through everything. I know firsthand
that these cases generally aren't that complicated."
By that, Kennedy is referring to
his recent work on about 20 cases as a dependency attorney in Gila
County, whose seat is in Globe. He says he took on the extra work
"so I could see how these kinds of cases really work, and what a
lawyer has to do to serve a client well and maybe get a decent
outcome that's right for everyone."
Kennedy says he's offended by the
first-time "meet-and-greets" of attorneys and their clients, similar
to the one at the Mesa courthouse described at the start of this
story.
"If you're getting paid a couple of
hundred of thousand of dollars a year or whatever," he says,
"wouldn't you at least show up somewhere to see your clients ahead
of time? I'm talking about the most rudimentary principles of honest
lawyering. Where is the conscience of these people?"
McEachern bristles at Kennedy's
remarks, telling New Times, "The term 'meet-and-greet' sounds
terrible, but it's reality, the nature of the game sometimes, such
as when a client decides to show up for court for the first time
halfway through a case."
Surprisingly, McEachern says, "I
don't have to speak to every person face to face to understand their
story. I am a history person, and I do appellate work, and I
understand how to read cold copy and get something from it. Some of
these kids have everyone constantly in their face — therapists,
teachers, caseworkers — and they lose track of which one's which.
"It's not the lawyer who should be
going out and visiting the clients. It should be that lawyer's
social worker, if she has one, which I do. I'm not a psychologist,
I'm a lawyer, and I know which cases need my priorities."
McEachern says it's not unusual for
her clients (the ones who aren't behind bars) to skip appointments
with her, fail to return her phone calls, miss court hearings and
make a healthy attorney-client relationship impossible.
Fair enough.
But Mark Kennedy says the county
has added provisions to new juvenile contracts going into effect
July 1 that will compel private attorneys to avow in writing that
they have visited with clients before going to court.
"Some of the lawyers in the
dependency bar do excellent, conscientious work," he says. "But
others just go through the motions, just try to move their cases
through by going along with whatever CPS tells the judge — kind of
hydroplaning through hearing after hearing. I say you owe it to your
client to at least get to know what they are about before you get to
court. Some of our attorneys literally don't have the time to do
that."
But Ronald Reinstein, another judge
on the dependency beat in downtown Phoenix, says of the lawyers who
appear in his court, "All I ask is of them is to be prepared, to
know what their case is about and to represent their clients to the
best of their abilities, and that's what I get most of the time."
Reinstein speaks well of the work
performed by many dependency attorneys who regularly appear before
him, such as Christine Mulleneaux (who was paid $220,890 in 2006),
Christopher Theut ($124,736), the husband and wife team of Dan and
Pamela Wiens Saint ($298,600 between the couple) and others.
One of the most respected members
of the county judiciary, Reinstein adds a cautionary note: "The
numbers of cases that some of these attorneys apparently have been
juggling is really troubling. I can't imagine that it's healthy for
anyone involved."
What it has been is healthy for
many of their bank accounts.
Reinstein says another court
official familiar with the situation recently suggested, apparently
only somewhat in jest, that the judge should apply for a county
contract when he retires in a few months because that's where the
money has been.
Reinstein says (wry smile in place)
he isn't leaning in that direction yet.
Mark Kennedy says he's confident
that other changes in the upcoming juvenile contracts, including a
limit on cases (a maximum of 260 per attorney), some reduction of
pay for the dependency attorneys and other cost-cutting measures
will have an immediate and positive effect.
Needless to say, the dependency bar
is none too pleased by the upcoming changes.
"I think what happened is that
people at the Board of Supervisors and in Mark Kennedy's office just
got together as a tribal group and decided to vote us off the
island," says Janelle McEachern. "They think we're spoiled little
brats, and they're giving us a big spanking."
Says Kennedy, "No doubt there will
be growing pains as we step into what I think is going to be a
seismic change in how we do business with these lawyers. But
something's got to give, period, and we're taking steps to make sure
it does."
Not counting Patricia O'Connor, 37
private lawyers specializing in juvenile cases were paid more than
$100,000 last year by Maricopa County.
Seven juvenile dependency
attorneys, including O'Connor, collected more than $200,000 in 2006.
Right behind O'Connor were Janelle McEachern and Jeffrey Zurbriggen,
who were paid $277,992 and $266,925, respectively.
The county's Peter Ozanne, who was
executive director of the Office of Public Defense Services in
Portland, Oregon, before moving to Phoenix last October, says the
financial situation for dependency attorneys in Oregon is vastly
different than it is here.
The money that Maricopa County's
dependency attorneys have been making, compared with others in the
system, apparently has been giving even some of them pause.
"It is skewed," Janelle McEachern
says, "and if I was a death penalty attorney or a judge, I'd say,
'Wait a minute' too. They have families to support and offices to
run. But I'm not the one who disperses the money. I don't know,
maybe all of the other parts of the system should lobby to get more
money."
But Patricia O'Connor sees the
assault on the amount of money she's been making as somewhat
hypocritical.
"How many lawyers out there would
be willing to hold a brand new baby who's going through meth
withdrawals and is having seizures?" says the former prosecutor and
public defender. "Or would be willing to spend hours with a woman
with an IQ of 58 to try to keep her on track? Or try to figure out
what to do with a child who's been molested repeatedly by a sibling
or two?
"If you do it right, this work
isn't for everyone. CPS doesn't know what it's doing a lot of the
time, with the high turnover and the lack of continuity of services.
That's where a good dependency lawyer can step in and micro-manage.
I'm a workaholic, and I'd like Mark Kennedy or anyone else to walk a
mile in my shoes.
"Bottom line, the only people who
are truly going to get hurt by everything getting stirred up about
the money we've been making are those that the system already hurts
— the children who aren't going to get the representation they
deserve."
But with all the cases that a small
group of dependency lawyers continue to handle in Maricopa County
can children and their parents possibly be getting adequate
representation?
Assistant County Manager Peter
Ozanne thinks not.
"It's hard to imagine being able to
do the job with 500 cases, or 800, or whatever," he says. "I think
that's common sense. I also think that we in the county have to open
up a conversation with the judges who keep appointing the same
people to these dependency cases, and with everyone else who works
on these cases. Things have to change, and they're going to."
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