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Monday, July 25, 2005

Court appointed lawyer fees

Here's a post from Carolyn Elefant at the My Shingle blog. She's critical of Mass. court appointed counsel who have been complaining rates. This is what she says:

Court appointed lawyers can't expect a guaranteed stream of revenue at private rates. It's a trade off. If lawyers want the security of a flow of cases for which they don't have to advertise or market, then they can settle for court appointed work at a lower rate. If they want to make more, then they need to go out and find the clients who are going to pay - and stop asking the captive ones to fork up even more money.

And as I've always said, court appointed work is interesting and a good way to pay the rent early on or even a way to do work that's got a pro bono element without working entirely for free. But if you want to step up to a successful practice, your plan has got to include weaning yourself from court appointed work. After all, why limit yourself to $84,000 a year when you could possibly make ten times that much?

Of course, being a public defender for my entire professional career thusfar, I'm biased on this subject. I see her point but what she doesn't acknowledge is an inherent tension that will arise when a person carries a mixed caseload of court appointed work and retained work that pays at a higher rate. Which clients are going to get the more effective representation?

10 Comments:

Blogger Carolyn Elefant said...

Hi Andrew,

Thanks for your post. You raise a good point. However, I think that in the long run, a balanced caseload with higher paying cases allow lawyers to effectively subsidize lower paying ones. When I started my practice, I did court appointed work to gain experience. I was able to continue cases when it worked to my client's advantage or research motions really well without worrying whether the court would cut a few hours because I was making enough from my energy regulatory clients. I often felt that some of my colleagues who were living on court appointed work felt pressure to resolve cases quickly and move on and while they certainly did an effective job, perhaps could have done better had those cost constraints not been there.

5:58 PM

 
Blogger Prof Yabut said...

Andrew, The tension you mention is exactly the reason that national standards for indigent defense favor fulltime public defenders. In Massachusetts, 95% of indigent defense is handled by the private assigned counsel. [See the recent Study Commission Report, at pp. 9 - 10.] The bar advocates have rabidly opposed the Commission's proposal to have test projects, hiring more public defenders, in the rural counties where the problem is most extreme, and to move toward a more appropriate ratio -- because they do not want to lose the income.

In Hampden County virtually all district court cases are handled be bar advocates. According to MACAA, the average panel member spends 85% of his or her time on bar advocacy work, in Bristol County it's 77%.

In its section on Massachusetts, the recent landmark American Bar Association report on the nation's indigent defense system, "Gideon's Broken Promise: Massachusetts" (Feb. 2005) specifically noted as a problem in the Massachusetts system that:

"Although national standards recommend the use of public defender programs wherever the population and caseload are sufficient to support such organizations, in many areas of Massachusetts, there is almost complete reliance on private assigned counsel, especially in misdemeanor and juvenile delinquency cases."

The 2005 Masschusets Study Commission noted that originally:

"The idea was that representing indigent persons would allow private attorneys to supplement their income while simultaneously building a private practice.35 Moreover, as noted in Lavallee, the work voluntarily undertaken by private attorneys willing to accept CPCS cases is in the nature of public service because the source of compensation is the 'limited public treasury'.36

"There has been, however, a gradual yet persistent movement away from that original intent, as an ever increasing number of private attorneys derive all or a significant part of their income from CPCS cases. As more and more private attorneys have come to rely almost exclusively on CPCS cases for their livelihood it is understandable how this group has come to feel underpaid for their services. Such feelings, however, overlook the fact that the hourly rates paid to CPCS private attorneys were never intended to be sufficient to sustain a private practice."

Bar advocate spokespersons continuously say that the ABA Gideon Report praised the Massachusetss system. [See., e.g., quote from MACAA press secretary Nancy McLean, to the Lowell Sun Times.] The Gideon Report actually praised the "approach" used in Massachusetts of training the assigned counsel and monitoring them. The Report stated that the basis for their conclusion was the testimony of one witness -- Bill Leahy, who is in charge of CPSC, the agency that oversees the bar advocate system. [See fn. 401 of the full Gideon Report.]

I believe Carolyn is correct that we can expect better attention to indigent defense cases from self-sustaining lawyers who take indigent work out of a sense of public service, or to gain valuable experience. When assigned counsel spend the vast majority of their time on indigent work, but are still attempting to find more lucrative private clients, they will surely give the private client special attention.

Please see my recent discussion at f/k/a, does ""bar advocate" equal "greedy lawyer"?, for a full discussion of the illegal and unethical joint boycotts by the bar advocates.

s/David Giacalone
a/k/a Prof. Yabut

10:29 AM

 
Blogger Luis said...

It is good. It will lessen the tension and pressure from the mind of lawyers and will help them to work more relaxed.


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