The economics of criminal defense
One of the lawyers in my office was retained to handle a
death penalty case last year. He and his
co-counsel split $100,000. He was also assigned
to handle seven other death penalty cases last year. On those seven cases combined, he made just a
tad over $20,600. I don't know how much
time he spent on the retained case, but I'll bet he made more per hour than the
$43.63 the County paid him on the assigned cases.
So, how is it a viable business model that you'll take 40%
of what your normal fee would be to handle seven times as many cases?
Because that's where the money is.
The entire economic structure of the criminal defense system
stems from one immutable fact: 80% of
the defendants going through it don't have the money to hire a lawyer. The Supreme Court says a defendant has to
have a lawyer, and so the government subsidizes the criminal defense system. If you're a criminal defense lawyer who doesn't
handle assigned cases, then you're cutting yourself off from 80% of your
market. (The tradeoff is that you're
agreeing to work for a fraction of what you could command if somebody had the
money to hire you.) There are some
lawyers who can do that, but they're relatively few in number. I'd bet that for three-quarters of the
criminal defense attorneys in this town, assigned cases account for at least a fourth
of their income.
How does one access that market? The gatekeepers are the judges. True, there's an assigned counsel list, and
there are a very few judges who will make their assignments from that list, in
order, but it's much more common for the judges to make individual
determinations, usually after the arraignment is over. That's why if on Friday afternoon you drop by
the chambers of the judge who's going to be handling arraignments the following
week, you'll see a little bowl on the bailiff's desk, filled with attorney cards. If the judges are the gatekeepers, then that's
the people you're going to have to reach.
This system has received its fair share of criticism,
perhaps the chief one being that a lawyer is going to be wary of upsetting a
judge on whom he's dependent for assignments, and thus might compromise his
client's defense. That could be a
problem in a small county with only a few judges, but here there are 34. That doesn't mean it can't happen; allowing
the trial judge to assign a lawyer to a case pending before him when the other
lawyers withdraws might have potential for problems. But overall, the judges' power as gatekeepers
is greatly diluted by their number.
There's also grumbling that this results in an Old Boys'
network, where the same lawyers get most of the cases. That's accurate to a large extent, but it
would be a more effective argument if the lawyers who were getting the cases
weren't qualified to handle them. That's
not true, especially for the more serious cases; the same lawyers get cases because
they're regarded as competent lawyers.
To be sure, a good personality and some schmoozing at a fund-raiser don't
hurt, either, but that's the marketing aspect of capitalism.
The question is whether it's going to continue. The Steelman Report, the study commissioned
by County Prosecutor Tim McGinty, recommends substantial increases in
compensation of assigned counsel. (The
study's recommendations here were taken verbatim from a proposal prepared by
the Cuyahoga Criminal Defense Lawyers Association (CCDLA) earlier this year.) CCDLA representatives have also met with a committee
of judges, who've made a counterproposal which isn't what CCDLA proposed, but
would be a substantial increase from the present levels. One of the concerns expressed within the
group (full disclosure: I'm the
vice-president-elect of CCDLA, which means if people don't come to their senses
and I don't get hit by a bus in two years, I get to run the show) is the fear
that setting fees too high could result in "pricing ourselves out of the market";
i.e., that it would be cheaper for the county to give all the assigned cases to
the public defender. The likelihood of
that happening, at least in the short term, is virtually nil; it would require
more than doubling the number of public defenders who presently handle felony
cases, with the associated expenses for staff, office space, and benefits. Still, it's a consideration.
The bigger problem is the possibility that the judges will
lose their status as gatekeepers. The
Steelman Report recommends that assignment duties be given to a substantially
expanded Public Defenders Commission, which seems highly unlikely, if only
because there doesn't appear to be any statute giving the Public Defenders
Commission that power. If any change is
made, the more probable result is a random assignment system.
The CCDLA has taken the position that it will take no
position on that issue, and that's probably wise. There's been a perception in the past that the
organization's primary function is to protect the economic interests of people
who take assigned criminal cases, and getting into that fight, especially on
the side of maintaining the status quo, could only serve to further that
perception.
But there is another aspect of economics that comes into
play here. The goal of the system is to
provide effective representation. That
requires an infusion of new blood. Right
now, it's too hard for young lawyers to get assignments. If there are increases to compensation, as
seems inevitable, there will be a bigger pie to be divided. It makes sense to make it easier for good young
lawyers to get their piece, and it doesn't mean that anybody else has to eat
less.
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