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A free lunch

Everybody says you should have a business plan.  Over the years, mine has consisted of deciding what I don't want to do anymore, and then putting myself in a position where I don't have to do it.  My practice used to be about 60% civil, running the usual gamut between cheapo divorces, fenderbenders, and some civil litigation thrown in.  Now, it's 90% criminal trial and appeals.  I never really liked the civil stuff, and I finally stopped doing it.

I've been giving some serious thought to adding assigned criminal cases to the "I don't want to do this any more" list.

In September, I wrote a post about getting fired from a case.  Long story short, I was assigned to represent a client in a drug case, she got remanded for testing dirty, and the family hired an attorney because they didn't think I'd done enough to find a treatment center so she wouldn't have to sit in jail.  And, as I readily conceded in the post, I hadn't.  The maximum for assigned counsel in Cuyahoga County on a 3rd degree felony is $600.  Even at rates of $60 for in-court and $50 for out-of-court, with the pretrials and telephone calls to judges, bailiffs, drug intervention people, probation officers, and what-not, I'd already maxed out.  It's not like I didn't have anything else to do, so the client's case went to the bottom of the pile.  I readily admitted, though, if someone came into my office and plunked down $2500 to represent their wife or daughter, with the objective of getting them into a treatment program, that would've been moved near the top of the pile.

And that's why I'm thinking that I'm going to stop taking assigned cases.  Not that I don't want to do them anymore.  I do.  As you might guess, I really enjoy criminal law, and I really enjoy handling criminal cases.

But here's the problem:  I have very high standards of representation, and I knew I wasn't always giving that to the clients I'd been appointed to represent.  And I'm sorry, but no other lawyer does, either.  Yes, we'll give someone maximum representation on a particular case, even though we wind up getting paid less than six bucks an hour, like one lawyer did here a few years ago.  But day-in, day-out, no lawyer is going to handle assigned cases like the retained ones.

Nor should they be required to.  Imagine if you set up a national health plan that worked like this:  two-thirds of all medical cases would be handled by doctors making a fraction of what they could in private practice.  Do you think this would make medical care worse?  Of course it would.  The more successful -- better -- doctors would opt out of doing that, and there is nothing in the knowledge about human nature that we have acquired over the millennia that would lead us to believe that in every case a doctor getting $1,000 for an operation will perform with every bit as much attention and skill than a doctor getting five times that.

That's what we do in the criminal justice system:  two-thirds of the cases are handled by lawyers who are grossly underpaid for doing so.  Nowhere else in society do we expect that.  Nobody stands in line at the grocery store and tells the cashier, "Yes, I know it's a steak, but I only want to pay for hamburger."  "You get what you pay for" is one of the hoariest tenets of capitalism, and anyone who believes the criminal justice system is exempt from that wisdom is a fool.

There are 88 counties in Ohio; 78 of them pay assigned counsel more than Cuyahoga County does.  Mahoning County, home of Youngstown, one of the most blighted cities in America, has a $3,000 cap for 1st degree felony cases, three times what we have.  That's a travesty.  A slightly lesser travesty is that lawyers in Akron only get $250 more than we do. 

And it's not a travesty that's confined to Ohio.  As I pointed out a year ago, the compensation for assigned death penalty counsel in Philadelphia is so penurious that only 30 lawyers out of 11,000 in the city are willing to do it.  Jonathan Boyer's case was argued before the US Supreme Court on Monday, and presented an interesting speedy trial issue:  he sat in jail for five years awaiting trial in a capital case because Louisiana ran out of money to hire an attorney to represent him.

But lawyers in some states, like New York and Virginia, have successfully sued the state to force a more adequate compensation system.  Supreme Courts in Kansas and Georgia have held that the piddling amount paid to assigned counsel violates the Takings Clause of the Constitution.

Maybe we need to do something like that here. 

We'll talk about that some more.


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