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Talkin' 'bout money

Yesterday I told you about a friend of mine who made $77,000 from the county last year for representing indigent defendants.  That sounds like a lot of money -- hell, it is a lot of money -- but what I didn't tell you is what he did for that:  he was assigned 71 cases, and he spent 1,377 hours working on them.  That comes to an hourly rate of just under $56, or a good bit less than what you'd pay a plumber to come out to fix your toilet.

The rates for assigned counsel cases are bad enough:  $50 for out-of-court work, $60 for in-court.  What kills you, though, is the caps.  There are maximum fees for each level of felony, ranging from $1,000 for a first degree felony to$500 for fourth and fifth degree felonies.  Only two counties in Ohio which use an assigned counsel system, Scioto and Seneca, have lower caps.  Actually, my friend makes out better than average, because he does some death penalty work, which pays at $95 an hour.  Overall, the effect of the caps is to reduce the average hourly fee in Cuyahoga County to $38.87, which places us 80th out of the 88 counties.

The caps here haven't changed since President Bush's first year in office.  The father, not the son.  You read that right: next year, it'll be a quarter of a century since the caps were increased.  That the situation had been allowed to exist that long certainly isn't to the credit of the Cuyahoga Criminal Defense Lawyers Association, the local criminal bar, but this year it finally got its act together and put together a proposal outlining the disparity between what attorneys get here for assigned counsel work and what they get in other urban counties.  The proposal argued for adopting the caps suggested by the Ohio Public Defender Commission:  $3,000 for 1st, 2nd, and 3rd degree felonies, and $2,500 for 4th and 5th degree felonies.

I've spent a couple days (yesterday and last Thursday) talking about the report commissioned by County Prosecutor Tim McGinty (known as the Steelman Report), which proposes numerous changes in the way the assigned counsel system works here.  One of the subjects it tackles is compensation, and the report wholeheartedly endorses the CCDLA proposal.  In fact, in the discussions at the meetings with judges, lawyers, and prosecutors on the report, that's the one thing everybody agrees on:  the fees have to be raised.

If you're doing assigned counsel work, though, before you run out and put down a deposit on that vacation home you've always dreamed about, a reality check:  it's not up to the judges, the prosecutors, or the defense lawyers as to whether that happens.  The county council holds the purse strings, and voting to spend more tax dollars on lawyers who represent criminals isn't exactly a winning public relations ploy for a politician.  (Imagine full-page ad, picture of me with solitary tear coursing down my cheek, with caption, "You can increase the cap Russ gets paid for a 3rd degree felony.  Or you can turn the page.")  In fact, just before the Steelman Report came out in June, the judges had offered to raise the rates, but contended that the proposed increases went too far.

That contention was based on the court's number-crunchers assuming that everybody would max out on the fees, and to be sure, if the county was now paying five times what it used to for every fourth and fifth degree felony, that would blow up the budget.  The court spends about $6 million a year on assigned counsel, and if you make the assumption the number-crunchers did, that goes up by more than 100%.

The assumption doesn't hold up, though.  It's based on the fact that just about everybody maxes out their fee now, but that's because the caps are so low, you can hardly avoid doing so.  Two pretrials, a plea, and a sentencing, to say nothing of meeting with the client and reviewing discovery, will easily use up the 8 - 10 hours needed to hit the cap on a low-level felony.  You're not going to come close putting in the 40 or 50 hours needed to max out a $2,500 cap.  That's borne out by looking at the counties which do use the OPD guidelines, like Mahoning, Montgomery, and Franklin:  the average payment for 4th and 5th degree felonies for those three counties is $649.  If you plug in the numbers from the counties that use the OPD guidelines, the likely increase here is a lot closer to one million dollars than to six.

That's still one million more than the people who appropriate the money probably want to spend, but there's another aspect here which keeps getting left out of the equation:  the overriding goal here is to achieve quality representation of indigent defendants.  The present compensation system for assigned counsel doesn't do that.  Not only does it chase good lawyers away, but it affects the choices you make as a lawyer, and how you present those choices to your client.  I don't care how conscientious you are, if you know that you're going to be trying the case for free -- and with the current caps, that's precisely what happens -- it's going to affect how you talk with your client about a plea bargain.

To be sure, you don't want to spend more money for bad representation, and while the quality of representation provided by assigned counsel is good, it could be better.  The Steelman Report addresses that, too:  what qualifications should someone who's assigned to represent a criminal defendant have?  We'll talk about that next week.

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