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A lawyer seeking to overhaul Oregon's criminal defense system has been accused of "gross mismanagement" of the public defenders' office he once ran.
The complaint filed with the Oregon State Bar raises questions about Lane Borg, who's at the center of the effort to reform the state's embattled system of criminal defense for indigent Oregonians.
Mason Yount, a legal assistant at Metropolitan Public Defender, a Portland nonprofit, filed the complaint May 6, alleging serious management failures on the part of Borg, who ran MPD for 10 years.
In his complaint, Yount alleges Borg engaged in "fraudulent misrepresentation" by misleading the state about how the nonprofit would spend its money. Yount also filed a complaint with the Oregon Department of Justice, which regulates nonprofits in the state.
Metropolitan Public Defender is the state's largest nonprofit provider of criminal defense services to people who cannot afford a lawyer. In 2018, Borg left MPD to lead the Office of Public Defense Services, an agency that funds all public defense in the state.
Borg went from running a nonprofit with a $12 million budget to running an agency with a $150 million budget—and earlier this year, he asked lawmakers to increase that budget by one-third and to consider wholesale changes in the way public defense works in Oregon.
Borg says the bar complaint is without merit. "I deny each of [Yount's] assertions," Borg wrote in an email to WW.
But it's impossible to evaluate the merits of Yount's allegations—because Metropolitan Public Defender has fought to keep the details of the bar complaint secret.
In Oregon, bar complaints, including supporting materials, are generally subject to the state's public records law, which means the press and public may obtain copies of them.
But Metropolitan Public Defender has been anxious to block WW's access to the documents supporting Yount's complaint.
WW originally requested Yount's complaint May 22. In June, MPD challenged the legality of the bar turning over Yount's evidence to WW and threatened to sue to block the newspaper's access to the documents, which it says include "internal financial records."
That impasse continued through WW's print deadline. MPD's threat to sue hints at what's at stake for public defenders.
Last December, the Sixth Amendment Center, a Washington, D.C.-based nonprofit, presented a 238-page analysis of Oregon's system of public defense to lawmakers. The takeaway: Oregon's system is broken, with low pay and high caseloads threatening to deprive criminal defendants of their constitutional right to effective representation.
The state-commissioned report was timed to coincide with the 2019 legislative session, one in which Democrats would have supermajorities in both chambers—and a leadership committed to reforming Oregon's criminal justice system.
Borg's agency, which administers dozens of contracts with lawyers at nonprofits and in private practice around the state for defense services, is eager to consolidate and beef up the current system. The fix Borg and his agency proposed: Convert most of the hodgepodge of nonprofits and contract lawyers to state employees who would be paid commensurately with other state lawyers.
The initial budget request: $419 million for the 2019-21 budget cycle, a 35 percent increase from 2017-19.
In hearings on House Bill 3145, the main bill to accomplish that increase, lawmakers have whittled away at that price tag.
One question they want Borg and his agency to answer before giving them a lot more money is whether the current system operates as effectively as possible.
That's what makes the bar complaint Yount filed so timely.
Yount's complaint accuses Borg of a number of offenses. It says he created a "debt" to the state by having MPD handle fewer cases than it contracted for, then writing off that debt when he took over the Office of Defense Services. It says he diverted money meant for criminal defense to "holistic" community legal services to clients facing housing, immigration or other issues. And it claims he misrepresented the number of clients that managers defended and the amount of money spent on community court.
Borg says each of the allegations lacks any merit. He says he recused himself from anything to do with the MPD contract after taking his current job. He says there was no diversion of funds for criminal defense to other programs and that all of MPD's spending was appropriate.
Borg says Yount previously displayed a lack of understanding of MPD's finances, as reported on the nonprofit tax return it files annually. He adds that more sophisticated sources gave the nonprofit a clean bill of health.
"MPD was and is audited annually, and there have been no reports of financial concerns or impropriety," Borg says. He adds that he hasn't seen the supporting documentation Yount presented to the bar and isn't sure why Yount did so.
WW hasn't seen those supporting documents either.
In a June 13 email to bar general counsel Amber Hollister, Carl Macpherson, Borg's successor atop MPD, said the public had no right to know about the inner workings of MPD's budget, which is funded by taxpayers.
"We object to the disclosure of all of the attachments, as they are internal documents not subject to disclosure," Macpherson wrote. When Hollister replied that in her view the law required disclosure, an outside attorney representing MPD upped the ante late in the day June 14, saying it was contemplating "a temporary restraining order or other legal avenue to protect some of the requested information from disclosure."
Macpherson argues that Yount improperly took documents from a contract negotiation between MPD and American Federation of State, County and Municipal Employees, the union that negotiates for MPD employees.
It's unclear what Yount's motive was or whether his complaint was an effort to influence the pending legislation. In correspondence between the bar and MPD's attorney, bar counsel Hollister noted that Yount included "grievances" he had filed against MPD.
Without viewing the complaint's supporting documents, it's difficult for observers or the public to discern who is in the right. But the allegations against Borg raise questions about his suitability to manage a costly, complex reform of public defense.
"[Borg] is one of the most honest guys I've ever known," says former Multnomah County prosecutor Chuck French. "I can't see him doing anything other than trying to do something he thought was right."
But French also believes Borg and other leaders of public defense nonprofits shoulder responsibility for their budget choices. He says they set low salaries for public defenders in order to prioritize other costs, like hiring investigators.
French adds that the anger of public defenders, some of whom walked off the job last week, is misdirected.
"Really, who they should be walking out on is their management," French says, "not the taxpayers who are paying more for them [in Oregon] than in almost any other state in the country."
HB 3145 is slated for a Ways and Means hearing this week.