Wednesday, December 23, 2009

$100 Flat Fee for Misdemeanors?

See any problems with an attorney who is willing to take cases for this rate? I found this World Herald article from May 12, 2005:

A court-appointed lawyer in Douglas County Court who spends 20 minutes representing someone with a traffic ticket is now paid the same as a lawyer who spends 20 hours defending a suspected murderer.

Douglas County judges have changed the pay for court-appointed attorneys from $50 an hour to a flat fee of $100 for any traffic or criminal case.
The attorneys represent indigent defendants when a public defender has a conflict of interest.

The change, which took effect May 1, is expected to save the county $10,000 a year, said presiding Douglas County Judge Thomas McQuade.

Douglas County Public Defender Tom Riley and some Omaha attorneys are concerned that a poor person charged with a crime could see second-rate representation as a result of the change.

Riley said the pay change causes him concern and raises some questions.

"It puts a lot of lawyers in private practice in the difficult position of deciding whether they're going to take appointments and represent the indigent," he said.

Riley said that a lot of young lawyers cut their teeth on court- appointed work and that the lower pay could discourage them from getting involved.

McQuade said yearly increases in attorneys' fees prompted the change.

Years ago, he said, the county spent between $30,000 and $35,000 to pay the attorneys. Now, he said, it's up to between $85,000 and $90,000.

"It's been kind of a creeping thing," he said. "This is just a way that we thought we could just control our budget a little bit better."

He said the change won't jeopardize poor defendants. He said 90 percent or more are represented by the Public Defender's Office.

McQuade said the judges asked some lawyers before changing the pay whether they would accept court-appointed cases at $100 a case, and many said yes.

"We got a very large list of lawyers who said, 'Absolutely, we'll do that,'" he said.

But Eric Whitner, an Omaha defense attorney who took 10 to 15 appointments per year under the old pay structure, said he'll no longer take on the cases.

Whitner, who charges $150 per hour for misdemeanor cases and $200 an hour for felonies, said the $100 rate is "an insult to me. It's an insult to my staff."

Scaling back the already insufficient pay "sends the wrong message," he said, and raises a concern that indigent defendants won't get access to experienced, knowledgeable lawyers if the Public Defender's Office can't defend them.

"They deserve adequate representation, just like anyone else," said Whitner, a member of the Nebraska Minority and Justice Task Force.

McQuade said there's "no question" that the court-appointed lawyers do more than $100 worth of work representing the defendants from the time of arrest until a case is concluded in County Court or transferred to District Court.

Under the old payment system, the "vast majority" of court- appointed lawyers made agreements with judges to charge only between $50 and $150 per case, even though they worked more than one to three hours, McQuade said.

"Obviously, they were willing to go ahead and sacrifice something just to help out," he said.

The flat fee applies only to cases in county court. In district court, attorneys are paid $65 an hour for out-of-court work and $80 an hour for in-court work. The pay is capped at $12,000 for first- degree murder and $3,500 for any other criminal charge. A judge has flexibility to pay more for an extended or complex case.

Court-appointed attorneys in Lancaster County Court are paid $50 per hour, with no limit on the number of hours, said Becky Bruckner, the court's judicial administrator.

Omaha defense attorney Mike Fabian, who has done a lot of court- appointed work, also questioned the change.

"It just causes me some concern that there is no means by which different types of more serious cases can be reviewed and adjustments made so that all of the assets are there to defend the case," he said.

McQuade said the county's first duty is to make sure indigent clients have adequate, competent representation.

"If we can get it done for less money, the same kind of work, I think it's our duty to make sure we try to do that," he said.

What do you think? Can we truly "get it done for less money" with the "same kind of work?" How many misdemeanors get tried to juries when the lawyer's fee is capped at $100? Not one that I know of in ten years.

What do you think Thomas Jefferson, who called trial by jury "the only anchor yet imagined by man by which a government can be held to the principles of its constitution" would say about such an arrangement?

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