Private Probation Co. Owned By Defense Attorney

Posted at 10:51 PM, May 19, 2016
and last updated 2016-05-20 00:18:06-04

Critics of private, for-profit probation companies are questioning a new contract in the Rutherford County town of Smyrna.

The town awarded its private probation contract to a company co-owned by an attorney whose firm takes criminal cases in Smyrna.

Attorney Bert McCarter formed Tennessee Court Services the day before the town of Smyrna started taking bids.
"I think the reason we got this is we went in with fresh ideas," McCarter said.

McCarter said Tennessee Court Services will bring a new feel to private probation in Smyrna.

"I realized there were some serious and significant problems with the prior probation group that was servicing Rutherford County," McCarter said.

The prior company was Pathways Community Corrections (PCC).

PCC and Rutherford county face a federal lawsuit accusing them of running an "extortion scheme" in which poor people ended up in jail because they couldn't pay fines and fees.

In March Rutherford County got out of the private probation business.

But Smryna stuck with it, and awarded its new contract to McCarter -- a defense attorney who has never run a private probation company.

Attorney David Raybin has criticized the whole concept of private probation.

"It is probation for profit. That's not the point of the system," Raybin said.

But he is also concerned that the town of Smyrna awarded its private probation contract to a local defense attorney.

"If you're going to be an attorney you shouldn't own one of these kinds of places and if you're going to own one of these places you're not going to be practicing criminal law," Raybin said.

McCarter is a founding partner of McCarter, Catron & East, PLLC, a Murfressboro law firm.

McCarter takes criminal cases, which raises the question, could he represent a client who gets convicted and then has to use the private probation company that McCarter owns?

"If I was taking cases in Smyrna and my clients were going on probation, I would deem that to be a conflict, but I don't take those types of cases," McCarter said.

NewsChannel 5 Investigates asked, "Does your firm take those cases?"

McCarter responded, "They do, yes."

McCarter provided NewsChannel 5 Investigates with an opinion from the Tennessee Board of Professional Responsibility, which regulates attorneys, in which the board said it did not find a conflict of interest for McCarter or his firm.

But critics say it's a close call.

"It creates the appearance of impropriety," Raybin said.

Three companies put in bids for Smyrna's private probation contract.

Evaluation sheets show Tennessee Court Services received the highest marks for things like History and Resources of the Firm, even though it had no employees or financial history at the time.

NewsChannel 5 Investigates asked, "Why would they pick a company that is so new?"

McCarter responded, "Well I think it's the ideas."

He claimed his experience is from running for-profit DUI Education Centers in Rutherford County.

Smyrna officials agreed those centers played a roll in their evaluation of Tennessee Court Services.

They also said they were swayed by McCarter's promise of shorter wait times for those on probation and more flexible reporting schedules.

"You're not going to have 50 people out here waiting for hours at a time," McCarter said as he showed us the new office for Tennessee Court Services.

But whether it's for profit DUI centers or for profit probation, critics have concerns about defense attorney ownership.
"The lawyers who participate in the system should not own these types of things," Raybin said.

McCarter said it's not a conflict when his law partners take criminal cases in Smyrna because he doesn't share any of their profits.

And he said his law partners have no access to probation company records.