Criminal Justice Section  


Criminal Justice Magazine
Fall 2002
Volume 17 Issue 3

Indigent Defense

Terry Brooks and Shubhangi Deoras

Local Bars Fight to Hike Counsel Rates

In recent months, several county bar associations have helped to bring some much needed attention to a systemic problem that has long plagued indigent defense: inadequate compensation for private counsel assigned to represent indigent defendants. Currently, the New York County Lawyers Association is engaged in litigation against the State of New York and City of New York that has already produced groundbreaking court decisions. The threat of litigation in Michigan has led to negotiations to increase assigned counsel fees between the prospective bar association plaintiffs (Wayne County Criminal Defense Bar Association and Criminal Defense Attorneys of Michigan) and the chief judges of the Wayne County Circuit Court. And in Massachusetts, members of the Bristol County Bar Advocates recently filed a class action lawsuit against various state agencies.

New York County, New York

In New York, the counties provide most of the funding for indigent defense representation. Under state law, each county is required to develop a plan for providing defense services to children and indigent adults. Indigent defense services in each county may be provided through a public defender program, a private legal aid society, a coordinated assigned counsel program devised by the local bar association, or a combination of one or more of these systems. Each of the 62 counties in New York has chosen to use an assigned counsel program to provide some or all of the representation for indigent defendants.

Since 1986, compensation rates for assigned counsel in criminal cases, which are established by statute, have remained fixed at $40 per hour for in-court work and $25 per hour for out-of-court work, with caps of $1,200 for felony cases and $800 for misdemeanor cases. According to a 2002 survey prepared for the ABA Bar Information Program by The Spangenberg Group, these rates are the lowest statutory hourly rates paid to assigned counsel in criminal cases in the country. The low rates have led to serious problems for assigned counsel programs throughout the state, but in New York City the problems have been further exacerbated by the extremely high cost of living.

The New York County Lawyers Association (NYCLA) has participated in New York City’s assigned counsel plan since the 1960s and handles approximately 30 to 40 percent of the assigned counsel caseload at any given time. According to Norman L. Riemer, NYCLA president-elect and a criminal defense attorney with the law firm of Gould, Riemer, and Gottfried, NYCLA members and others have advocated for higher rates for years, but the state legislature has steadfastly refrained from taking action. "We’ve tried our best as a bar association, but in a civilized society, when all else fails, you have to go to war—in this case, that meant litigation," says Riemer.

In February 2000, NYCLA filed suit against the State of New York and the City of New York, alleging that the current compensation scheme makes it impossible for assigned counsel in New York City to earn a reasonable fee for representing indigents and, in effect, compromises the delivery of meaningful and effective legal representation to the poor as required by the state and federal constitutions. The New York law firm of Davis Polk & Wardwell is representing NYCLA on a pro bono basis and has amassed a large volume of evidence to support the claims through their experts, including Robert L. Spangenberg, who has 25 years of experience in evaluating indigent defense systems across the country. During the spring of 2001, Spangenberg conducted interviews of more than 150 attorneys, judges, and administrators involved in New York City’s assigned counsel plan, as well as extensive in-court observations and an exhaustive analysis of the plan’s computerized database. Among his many findings are: (1) that the low compensation rates force many assigned counsel to forgo the "basic tools of a lawyer’s trade," such as an office, secretary, law library, or computer; (2) because the rates are so low, many attorneys undertake excessively high caseloads/workloads in order to make an adequate living; and (3) the low compensation rates act as a disincentive for attorneys to perform necessary legal work (especially work that must be performed out of court) on behalf of their clients. According to Spangenberg, "these factors contribute to a severe and unacceptably high risk that indigent defendants represented by assigned private counsel will not be afforded meaningful and effective representation. Simply put, the system for indigent defense services in New York City, in so far as court-appointed counsel are concerned, is in a state of crisis."

In May 2002, NYCLA won key victories in this case when it survived a motion to dismiss on standing and justiciability grounds and secured a preliminary injunction ordering that the compensation rates be raised to $90 per hour with no distinction between in- and out-of-court work. Although the preliminary injunction was automatically stayed by statute when the defendants filed their notice of appeal, the plaintiffs were granted a motion for an expedited hearing on appeal. According to Zachary S. McGee, one of the attorneys with Davis Polk & Wardwell representing NYCLA, "The $90 rate would do a lot to alleviate the attorney shortage for these cases and improve the quality of representation." The trial on the merits began on July 30, 2002, and closing arguments were heard in late August.

Wayne County, Michigan

Indigent defense representation at the trial level is funded entirely by the counties in Michigan. In Wayne County, which is among the six largest counties in the country, the judiciary is responsible for establishing a reasonable fee for compensation of court-appointed counsel. Currently, Wayne County utilizes an event-based fee schedule by which court-appointed counsel are paid a fixed amount for various tasks (e.g., arraignment, pretrial conference, and motion filing). According to Frank Eaman, long-time counsel for the Wayne County Criminal Defense Bar Association (WCCDBA) and the Criminal Defense Attorneys of Michigan (CDAM), the current fees have not been increased since 1982.

In June 2001, the Wayne County Circuit Court announced a 10 percent reduction in assigned counsel fees effective October 2001. Members of WCCDBA and CDAM attempted for months to negotiate with the court, but when that failed, the two bar associations committed to bringing a lawsuit against the chief judges to increase the fees. They approached the National Association of Criminal Defense Lawyers (NACDL) for assistance, and NACDL recruited Chicago-based law firm Kirkland & Ellis to work on a pro bono basis with local counsel Frank Eaman.

In the spring of 2002, Kirkland & Ellis retained Robert L. Spangenberg to research the assigned counsel system in Wayne County. According to Eaman, Spangenberg determined that the assigned counsel fees paid by the Wayne County Circuit Court are the lowest among the 25 largest counties in the country and contribute to a high risk of the provision of inadequate legal representation by assigned counsel. Shortly thereafter, Kirkland & Ellis drafted materials for a lawsuit. Before the lawsuit was filed, however, Eaman made a courtesy call to inform the chief judges of the prospective lawsuit. On August 16, 2002, after reviewing the lawsuit materials, the chief judges agreed to accept the bar associations’s proposed fee increases and to support the bar associations in their bid to secure funding for the increases before the Wayne County Commission. "This is by no means a slam-dunk," says Eaman, as the fight for funding approaches, "but those of us in Michigan who have worked on this issue for a long time are heartened by the judges’ willingness to negotiate and resolve the problem through ongoing dialogue rather than a lawsuit."

Bristol County, Massachusetts

In Massachusetts, assigned counsel rates are set by the state’s public defender agency, the Committee for Public Counsel Services (CPCS), but as a practical matter, CPCS cannot implement any increase in the rates without a concomitant increase in funding from the state legislature. In addition to overseeing the operation of 13 regional public defender offices and two family law offices, CPCS contracts with 12 bar advocate programs, which are located in the various counties and provide oversight for private attorneys assigned to criminal cases. The current compensation rates for private assigned counsel are $30 per hour for district court criminal cases, $39 per hour for superior court criminal cases, and $54 per hour for murder cases. According to William J. Leahy, chief counsel at CPCS, several attempts have been made by CPCS to raise these rates, most recently in 1994 (to $50, $65, and $85, respectively), but the legislature has never provided the necessary funding to pay for the attempted raises.

In the spring of 2002, 11 private attorneys, as members of the Bristol County Bar Advocates and on behalf of the other county bar advocate programs that contract with CPCS, filed a class action lawsuit against various state agencies (including CPCS) alleging that the current rates of compensation are unconstitutional and seeking an increase in the rates. According to Thomas Workman, one of the plaintiffs in this case, there has not been a raise in rates for the past 12 years, an indication of how the state regards court-appointed attorneys who provide legal representation to the poor: "The pay goes hand-in-glove with the level of respect."

The ABA Standing Committee on Legal Aid and Indigent Defendants will continue to monitor developments regarding assigned counsel rates in these and other jurisdictions. Future columns will provide additional information as it becomes available.

Terry Brooks is staff counsel for the ABA Standing Committee on Legal Aid and Indigent Defense. Shubhangi Deora s is assistant committee counsel. Both are contributing editors to Criminal Justice magazine.

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