Quid Pro Quo
The bailiff's call came right before noon. "Get over here this afternoon with a check for $75, and you'll get a case." The judge was in a tight race for re-election, and he was pulling out all the stops. Normally, the 34 judges here in the common pleas court take a two-week rotation on the arraignment bench; this judge had swapped with others, with the result that he'd spent half of the past four months handling arraignments. Why? Because the arraigning judge is the one who hands out assignments for criminal cases, and lawyers were willing to contribute money to his campaign in return for those assignments.
That was twenty-five years ago. I didn't go over and give him a check, I didn't get any assignments, and the judge lost the election. That's not because my heart is pure. Go to any judge's fundraiser come campaign time, and you'll see that about three-quarters of the people in attendance are criminal defense lawyers. I'm likely to be one of them.
On the surface, why we do that is difficult to understand. What we're getting in return for our campaign contribution is a chance to earn about a third of what we're worth. Assigned counsel work for felonies in Cuyahoga County pays $50 to $60 an hour, but because of the caps on fees -- $1,000 for a first degree felony, lower than 78 of the other 88 counties in Ohio -- it works out to about $38 an hour, according to last year's figures.
But there are attorneys who make a lot of money off of assigned counsel work. You bill two hours for setting up the file and preparing the motions that actually take you about five minutes to do, you handle five pretrials in a morning and charge an hour on each one, and it adds up. (Or you charge four hours on each one; one Cleveland lawyer made $130,000 in assigned counsel fees last year, which would have required him to work 3300 hours. The big firms would kill for a guy who could generate 3300 billable hours in year.)
I've talked about assigned counsel fees on previous occasions, and more so in the past few weeks. I've been concentrating on the low rate of pay, because I think that's a critical factor. America is built on the capitalistic principle that you get what you pay for, and if you pay lawyers lousy fees to represent poor people, you're going to get lousy representation.
But the converse of that -- paying attorneys more money ensures better representation -- isn't necessarily true, and it's certainly not the whole story. There may be some structural problems in how indigent representation is handled, particularly in how cases are assigned. That's what the judges in Travis County, Texas, have decided recently. Under their present system, the judge who handles the case assigns counsel for the defendant, from a list of qualified attorneys. The judges have proposed establishing an office which would oversee the system and handle the assignments.
The problem, as the judges see it, is the independence of assigned counsel. That's a particular concern under their system, because the one handling the assignments is the judge who's presiding over the case. Although the judge picks the lawyer in rotation from a list, what the lawyer eventually gets paid is largely determined by the judge.
The problem here in this county isn't quite that bad, at least at first glance; as I mentioned, it's the arraigning judge, not the judge handling the case, who assigns counsel. (That's only for the trial court proceedings, though; counsel for an appeal is assigned by the judge who presided over the case.) But there are still problems. Although there's a list, there's no requirement that the judge pick attorneys in order from it; I've seen some lawyers get as many as five or six assigned cases from a single judge's rotation in the arraignment room. What's more, the judge handling the case still has some control over it. If the judge doesn't like the prospect of having to try your case, that might tailor your discussions with your client, especially knowing that the judge is the one who's going to have to approve your application for extraordinary fees. And that gets back to a point I made a while ago about lawyers who think it's a compliment when judges tell them they have good "client control." It's not; what the judge really means is that he can count on you to get your client to plead so that he can move his docket along. If word gets around that you're a guy who forces a lot of cases to trial, that might impact the number of future assignments you get.
And let's face it: the standard ethical principle for both lawyers and judges is avoiding even the appearance of impropriety. It's tough to argue that having a system where lawyers give campaign contributions to judges so that judges will assign them cases doesn't create at least that appearance.
Unfortunately, that makes reforming the assigned counsel system a tougher go than it might otherwise be. Judges like the contributions, and lawyers like the money from the assigned cases. Changing the system to eliminate that quid pro quo isn't going to find favor from either party.
Back about 12 years ago, the ACLU and a number of other organizations were all ready to sue the county over the indigent fee system here. One group balked, effectively killing the suit: the Cuyahoga Criminal Defense Lawyers Association, the organized bar from criminal defense attorneys here. You're not going to get the county to cough up more money for assigned counsel fees if all it means is that attorneys, good and bad alike, are making more money. A lot of assigned attorneys give their best to represent defendants, but some don't. Any change in the system is going to come with more oversight -- meaning fewer attorneys will qualify, especially for the top cases -- and with less possibility of gaming the system to get more cases. Getting everyone to agree to kill that particular golden goose is going to take some effort.