Mental Health MASQUERADE

Litigation over care fo rArizona's mentally ill ended four years ago. Sowhy have private attorneys racked up more than $1 million in fees since then?

State Senator Mark Spitzer strode to the podium at a Prescott hotel and got to the point. The subject of the State Bar seminar in late September was mental health care, a hot topic in Arizona.

The Phoenix Republican's expertise lies in the areas of business and taxes, not social issues. But he'd agreed to discuss Arnold v. Sarn, a still-pending lawsuit filed in 1981 on behalf of Arizona's seriously mentally ill.

It's not that he doesn't want the disabled to get the help they need, Spitzer said. But he doesn't appreciate how private lawyers in the class-action suit have lapped up taxpayer dollars along the way.

Spitzer's comments raised a few eyebrows among the 75 or so in attendance, among them Phoenix attorney Chick Arnold. Arnold is to the rights of Arizona's mentally ill what Martin Luther King Jr. was to civil rights for black Americans.

He is the "Arnold" of Arnold v. Sarn, the lawsuit Spitzer alluded to. In 1981, Arnold--then the Maricopa County public fiduciary--brought the suit against the county and the state on behalf of indigent seriously mentally ill. The named defendant, James Sarn, was director of the Arizona Department of Health Services.

Arnold listened with some amazement as Spitzer carried on about excessive legal fees.

Spitzer, you see, is an attorney himself, an associate of Fennemore Craig, a firm that has made big money from Arnold v. Sarn.

"My position on this is probably hostile to my firm," Spitzer conceded last week, "but the money in these types of cases does tend to go to lawyers instead of those who need help. But I can't say how much any one firm has made in this case."

We can.
Since July 1992, Fennemore Craig has billed the state more than $500,000 for its services in the lawsuit.

All told, private lawyers involved in Arnold v. Sarn have collected more than $1.3 million in taxpayer-

paid fees since July 1992.
What's most troubling about this is that litigation in the case--the scratching-and-clawing phase--was completed in 1991.

The litigants at that time signed a document known as "The Blueprint," which specified what government agencies must do to end the monumental case.

Just last week, the lawyers signed a new agreement--a kind of amended Blueprint. The agreement, announced at a press conference by Governor J. Fife Symington III, is supposed to resolve remaining issues within a few years.

"I know it's hard for anyone outside the system to understand why the lawyers are billing so much when the trial and litigation are long over," Chick Arnold says. "It's actually hard for some people inside the system to understand it."

Attorneys in these types of cases rarely quarrel over fees. But this case is different.

This time, a private attorney representing Maricopa County alleged in court papers that the private lawyers representing Arizona's seriously mentally ill have been ripping off the public. He asked a judge to cut bills submitted by the plaintiffs' private lawyers--which the state and county must pay--by 40 percent.

In the legal profession, such a request is tantamount to a declaration of war.

The brawl illuminates the ease with which government comes to depend on hired guns from private law firms. Those firms, by nature, stick to publicly funded cases such as Arnold v. Sarn like chewing gum to hot pavement.

By law, the Maricopa County attorney and the Arizona attorney general represent the agencies under their jurisdiction, in this case, the county Board of Supervisors, the state Department of Health Services and the Arizona State Hospital.

That private firms have been performing the tasks of the county attorney and the attorney general is another controversial aspect of the "shadow case," as one lawyer calls the fee dispute.

Even the plaintiffs' original Phoenix-based attorneys--the Center for Law in the Public Interest (also known as the Arizona Center for Disability Law) farmed out the case in August 1994.

A Boston firm that took over the bulk of the plaintiffs' work has been paid more than $200,000 since then.

Has the shadow case had any impact on the seriously mentally ill, the supposed beneficiaries of the protracted legal exercise? Only indirectly, says Gary Birnbaum, the attorney representing the county who started the fee fight.

Birnbaum, an associate of Mariscal, Weeks, McIntyre and Friedlander, wrote in a September court pleading: "It is not unfair to question whether substantial sums which could otherwise have been devoted to the care of the indigent seriously mentally ill are being depleted through funding of a well-intentioned administrative process run amok."

It's disingenuous for Birnbaum to complain too much. His firm has billed Maricopa County more than $170,000 in Arnold v. Sarn since October 1993.

A story focusing on the vicious dispute is one that the participants would prefer not be told.

Andrew Federhar of Fennemore Craig could not be reached for comment. His firm's client, the Arizona Department of Health Services and its director Jack Dillenberg, wouldn't utter a peep.

Birnbaum, who provided detailed background about the case, deferred on-the-record remarks to his firm's client, County Attorney Rick Romley. Romley's spokesman, Bill FitzGerald, said no one wished to comment.

Anne Ronan of the Arizona Center for Disability Law expressed displeasure that a story about the fees was in the works.

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