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Counsel Fees - the Good, Bad, and the Ugly

I'd mentioned that an attorney had furnished me with a county-by-county breakdown of the appointed counsel fees for indigent defendants.  The sheet I have gives the fee maximums for capital, felony, and misdemeanor cases, as well as the out-of-court and in-court rates.

If criminal law is your interest, you'd best stay out of Coshocton County:  they pay a maximum of $3,000 for a capital case.  Only a half-dozen pay less than $10,000 for one, and almost a quarter of the counties pay $50,000 or more.  Montgomery and Wyandot pay up to $75,000.  Cuyahoga County is at $25,000; only 11 counties pay less.  You might note that the maximum fee in Wyandot is arguably hypothetical; I've been able to find one death penalty case out of there in the last 15 years.

Cuyahoga County is at the back of the pack for regular felonies, as well; it pays a maximum of $900 for a 1st or 2nd degree felony.  (It pays a maximum of $400 for 3rd, 4th, and 5th degree felonies; the sheet, unfortunately, doesn't make those distinctions.)  There are only 7 counties which pay less.  The worst are Pickaway and Seneca, which pay a measly $500. 

Another way of looking at it is to examine how we fare, compared to the other major urban counties in Ohio:  Mahoning (Youngstown), Franklin (Columbus), Hamilton (Cincinnati), Montgomery (Dayton) and Lucas (Toledo).

 CapitalIn-courtOut-CourtFelonyIn-courtOut-Court
Cuyahoga$25,0005040$   9005040
Hamilton$45,0004545$2,2504545
Montgomery$75,0009595$3,0006050
Lucas$60,00010090$1,7504545
Mahoning$25,0004030$1,5004030
Franklin$50,0006050$3,0006050

The caps are only part of the story, of course; there's also the question of hourly fees, which range from a high of $50 per hour for out-of-court and $60 for in-court, to a low of $35 and $40, respectively.  (There are only two counties which have separate billing rates for capital cases:  Lucas and Montgomery.)  Cuyahoga County's in the median there, at $40 and $50.  This makes the cap for capital cases largely irrelevant:  in order to max out, an attorney would have to spend 500 hours on the case (assuming every hour was billed as in-court), which is roughly a quarter of what an associate of a big firm is expected to bill in a year.

But the caps do come in to play in regular felony cases, especially when they're low, as they are in Cuyahoga County:  essentially, they mean that anytime an appointed lawyer takes a case to trial, he's doing it for free.

A few weeks back I mentioned that, although the County Commissioners had approved an increase in the caps for appointed counsel fees, the increase was nixed by the court's judges.  (And keep in mind this wasn't really an "increase," but merely a restoration to what the fees were in 2001, and what they've been since the mid-1970's.)  I mentioned at the time that I didn't know whether it was all the judges, a panel, or simply the administrative judge.  A couple of judges since then have mentioned that they had no idea this had happened.

There's really no excuse for expecting a competent defense attorney to spend a week trying a rape case for $900.  As I noted before, there have been numerous lawsuits against counties and even states for inadequate funding of the indigent counsel system.  It could happen here, too.

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