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?

So Hogan asked Boston attorney Steven Schwartz--one of the nation's most experienced hands in disability class-action cases--to take control.

Specialists like Schwartz--Arnold v. Sarn Monitor Linda Glenn among them--work in several states at once, often for big money. (Glenn was paid $125,000 in Arizona last year.)

Schwartz was familiar with Arnold v. Sarn, having worked on the Blueprint as a consultant. But he came with an expensive price tag--$225 an hour. His presence in the case led this year to the shadow case, the fees war with Maricopa County.

In August 1994, the State of Arizona and Steve Schwartz cut a deal. It worked like this:

Schwartz agreed that the state would have to pay his firm no more than $210,000 in fiscal 1994-95. He also agreed not to file contempt or other enforcement actions against the state for lagging in parts of The Blueprint.

In turn, the State of Arizona promised in effect not to question Schwartz's bills. And it hasn't.

Schwartz had asked Maricopa County's lawyers to sign on to the deal. But Mariscal Weeks didn't go along.

"It would clearly be inappropriate for the county to stipulate to pay fees whether they were reasonable or not," Gary Birnbaum told Judge Dougherty.

Schwartz and the Center for Law's Anne Ronan fought back like wounded animals. They countered that the county should be held liable for paying any plaintiffs' fees billed over the agreed-upon $210,000 "cap."

The debate heated up this spring, when Schwartz submitted his bill for the first three months of 1995. It totaled $106,000.

The amount sent the county's private lawyers--who had billed about $17,000 during that same period--through the roof, and led to a flood of new paperwork.

The battle reached its apogee in August when attorney Bruce Meyerson tossed in his two cents. Actually, county taxpayers paid Meyerson $2,200 to render his opinion on the plaintiffs' legal fees.

The former Arizona Court of Appeals judge was uniquely qualified to comment on the fee dispute.

Meyerson was a founding father of the Arizona Center for Law in the Public Interest. He served as its executive director from 197482; Arnold v. Sarn was filed on his watch.

But Meyerson blistered the Center for Law in a 15-page affidavit:
"The decision to have Massachusetts lawyers play the lead role in a negotiation in Arizona--given the availability of capable Arizona counsel--was not professionally appropriate," Meyerson wrote.

"No private business or law firm would associate as counsel out-of-state lawyers and give them a blank check to provide representation. ..."

The county's lawyers also griped about travel time billed by Schwartz and a colleague from his firm. Court records show that, in the first six months of 1995, the Massachusetts duo billed 124 hours of travel time to and from Arizona, at a cost of about $23,000. That didn't include airfare, lodging and other travel-related costs, which taxpayers have also reimbursed.

Mariscal Weeks dissected the billings for one day--March 2, 1995. On that day, the plaintiffs' three attorneys had billed 29 hours, or $5,510 in fees. Of that time, they had conferred for five hours, then spent the rest of the day--24 hours total--in negotiations with the state and county.

In protesting the billings, Gary Birnbaum laid it on thick: "Although it appears to be true, as plaintiffs' counsel boasts, that Arizona is but one whistle stop in their nationwide tour, this court should not foster the continuation of this cottage industry."

Court Monitor Linda Glenn disagreed with Birnbaum's analysis.
"Steven would leave here with his computer and he'd work on the plane all the way home," says Glenn of her longtime colleague Schwartz. "For the county to accuse him of practically committing theft to me was way off base. I don't think anyone has been trying to rip off the taxpayer, I really don't."

Responding to Birnbaum, Schwartz and Ronan cited numerous sessions at which county and state lawyers had brought their own squadrons. They contended:

"For the county to now complain of the burgeoning expense of this litigation, which includes the cost of voluntarily retained private counsel as a supplement to its own municipal lawyers, is just slightly insincere."

Judge Dougherty has overseen Arnold v. Sarn, now 47 volumes thick, for more than a decade. The fee war didn't charm the veteran jurist, who vented his frustration in a September 18 ruling.

"The [county's] expression of alarm at the high cost of litigation comes at a late date," Dougherty wrote. "Vital and necessary services for the class [mentally ill] should have been implemented early on. Outside counsel for all parties would not have been necessary.

"The Court notes no outside counsel tried this case for any defendant. The trial was litigated by the staff of the County Attorney and the Attorney General. For any defendant in this case to attempt to carry the flag of fiscal responsibility at this stage is hollow, indeed. ... The state and the county have themselves created the high cost of this litigation.

"... The decision of plaintiffs to associate Massachusetts counsel was prudent. Mr. Schwartz's presence and expertise has taken a floundering situation as it existed ... and has achieved enormous success in pointing everyone toward closure."

By closure, Dougherty meant the end of Arnold v. Sarn.
"Bernie is a very conscientious guy," says another Superior Court judge of Dougherty. "But, as far as looking at every penny that goes through his office, I don't think so. He just wants the case to end as nicely and as quickly as possibly. Whatever it takes."

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