By Matt Ward
County commissioners are holding a special meeting a week from today to revisit terminating the county’s annual $550,000 contract with law firm Gibson & Kuehn.
Commissioners voted 4-0 to terminate the contract on Tuesday and move forward with entering into individual contracts with the firm’s four attorneys and perhaps as many as two other defense lawyers.
Four attorneys would share 80 percent of the county’s indigent criminal defense work, with the other two splitting the remaining caseload.
Sources say the special meeting will be called to clear up what was potentially a confusing outcome in Tuesday’s vote, whereby commissioners agreed they would be responsible for approving individual contracts versus allowing the county manager to unilaterally enter into the work agreements. The problem appears to lie with the fact that Gibson & Kuehn only conditionally agreed to terminate its current arrangement with the county if its attorneys, Tom Gibson, Harry Kuehn, Jason Earnest and Chris Arabia, who handles northern Nye County cases for the firm, all got dibs on new individual contracts. After all, the firm still has 18 months left on its contract, but is willing to pursue a new arrangement in an effort to save the county hundreds of thousands of dollars.
However, at least one local attorney is now on the warpath after this week’s vote took him by surprise.
Carl Joerger, a longtime defense attorney, is among several whose practice includes defending indigent criminal suspects in Pahrump when Gibson & Kuehn’s attorneys are unable to due to a conflict of interest.
He claims the new contract discussions that suddenly burst into view are being done at the expense of good conflict attorneys, and the clients they strive to serve.
Joerger says he’s not alone in feeling this way. Longtime conflict attorneys David Neely and Harry Gensler, a former public defender himself, also felt ambushed by Tuesday’s vote. Neely and Gensler were unavailable for comment Thursday at press time.
But Joerger was more than willing to express his dissatisfaction with the whole process, including questioning how Gibson & Kuehn have been able to keep their contract despite at least one glaring violation of its arrangement with the county.
“That’s what is so surprising about how this was all timed. It was done the week before Christmas when most of us don’t have a lot of court. The odds were we wouldn’t maybe be here. In fact, Gensler couldn’t be here. They knew he had cases scheduled in Vegas and couldn’t move them that fast,” Joerger said. “I’ve known those three guys (Gibson, Kuehn and Earnest) for 12 years now. It was shocking to me. They saw me there (at the commission meeting) and it was like, ‘oh.’ You would think something affecting conflict attorneys, you would think they would just pick up the phone.”
Joerger competed against Gibson & Kuehn for the county’s public defender contract in the past. He says he can do the job for $100,000 less. He faults District Attorney Brian Kunzi for the latest shenanigans with the contract.
“Instead of a nice orderly transition, it was like, ‘We have to move now.’ Well, yeah, it’s Dec. 18 and Jan. 1 is coming up. This is a real important decision, why not take some time, interview the judges, see what they have to say, anything, find out what they think, give them a chance to speak. But I don’t think anyone knew anything about it until Friday,” he said.
Nye County has paid out as much as $700,000 over and above its contract with Gibson & Kuehn on indigent defense, mostly because of conflicts that have arisen among attorneys inside the firm. By splitting up the firm and the contracts, county officials hope to reduce the conflicts and thereby the costs associated with them.
Joerger says there will be just as many conflicts as before and that all the county is doing is changing the form, not the substance — or the costs — of indigent defense.
“I don’t think it’s workable at all,” he said. “It’s not going to change any of the conflicts for Tom Gibson, Jason Earnest or Harry Kuehn. They’re still going to have the same conflicts. You’re still going to have to go out and get conflict attorneys.”
Joerger doesn’t stop there with his outrage. He says Gibson & Kuehn has gotten away with far too much as the county’s official public defender. First, he says the sneakiness with which this new arrangement suddenly emerged is similar to what the firm tried to do in 2009. The firm has had the contract since 2006. It got a five-year extension and an extra $60,000 in 2009. The contracts traditionally have only been for three years.
“In ’09, they say we need another $60,000 because we got a brand new department (Judge Kent Jasperson’s courtroom), and there’s Tom (Gibson) sitting up there with Jason (Earnest) saying we need to hire another attorney. Since there was a fourth department, they said they needed four attorneys. Nobody knew they didn’t have the third attorney (Gibson rarely handled any criminal cases for the firm) at that time, since Gibson was never there. And then they never hired the fourth.
“Nobody’s ever seen him. He’s like a phantom attorney,” Joerger said.
“Instead of going in there and saying, ‘hey, we never hired that fourth attorney, here’s your sixty grand back,’ instead they kept taking the money, ’09, ’10, ’11, ’12, that’s two-hundred and forty grand. Are we going to reward their bad behavior? It’s okay? In my opinion, and this is hard to say, but it is my opinion, that’s fraud. That’s fraud.”
Joerger also says the firm has violated its contract with the county by not keeping professional liability insurance. According to the firm’s original 2006 contract, the firm agreed to maintain malpractice insurance. A check of the Nevada State Bar’s website shows that neither Gibson, Kuehn nor Earnest currently have professional liability insurance.
Reached by phone late Thursday, Kuehn was asked about this and told of Joerger’s other comments.
Kuehn said “He has his view, and I’ll leave it at that,” about the insurance matter, but was more open about Joerger’s other statements.
He says Joerger was merely upset that he wasn’t included in early discussions with the district attorney several months ago when the topic of saving the county money on conflict attorneys first arose. He says it wasn’t his firm’s responsibility to include Joerger or any other outside attorney in these preliminary discussions.
“We have a contractual relationship with this county. Carl does not. He gets appointed cases and he gets paid when he does a good job,” Kuehn said.
As for the statement regarding Gibson’s lack of criminal work in court and the phantom “fourth attorney,” Kuehn says that Arabia is that fourth attorney and that how his firm assigns its caseload is nobody’s concern.
“He’s got no say in how we assign our attorneys. And the courts are more than satisfied with who appears in court, when they appear in court and how our clients are represented. If they had a problem, we’d know about it,” he said.
Finally, Kuehn said the bottom line is that the county decided it would like to find a way to save money and approached the firm about a possible solution.
“We were merely being good citizens. All we did is talk in good faith and kept our mouths shut like any good attorney should,” he said.
Still, Joerger believes the county should have given Gibson & Kuehn notice that the firm’s contract was going to be modified and then given notice that the arrangement was going out to bid so that attorneys like him weren’t left out in the cold.
“Let’s put this back out to bid,” he suggests.