Anyone facing criminal charges that could result in imprisonment has the right to an attorney — if he cannot afford an attorney, one will be appointed and paid for by the government. That right was established in 1963 by the landmark Supreme Court case Gideon v. Wainwright.
But a study just released by the Tennessee Bar Association (TBA) reveals that fewer private attorneys say they are willing to accept this work, because the pay is too low and paperwork too burdensome.
That’s bad news for communities across Tennessee, because it results in fewer private attorneys willing to accept appointed cases. In turn, those attorneys still willing to accept cases may have even less time to spend on appointed cases as a result of the burden of additional clients. In addition, some appointed attorneys may be unwilling to spend adequate time on a case for which there will be inadequate compensation. Of course, the person facing criminal charges bears most of the burden in a system like this as poor advocacy results in more time spent awaiting disposition, longer sentences and more wrongful convictions.
A 2013 study released by the National Association of Criminal Defense Lawyers (NACDL) ties compensation to fair representation: “The attorney’s right to fair compensation and the defendant’s rights are ‘inextricably linked’ and ‘[t]he relationship between an attorney’s compensation and the quality of his or her representation cannot be ignored.'”
In Shelby County, appointed counsel are more often than not, public defenders. In fact, the Shelby County Public Defender’s Office handles more than 35,000 cases each year. But in cases of conflict (for example, when two defendants are jointly charged with a crime or the victim in the case was a former client of the public defender) a judge may appoint a private attorney to defend an indigent client.
Private attorneys in the Memphis area are also appointed in the majority of the cases involving children, as the Shelby County Public Defender’s new, specially-trained Juvenile Defender Unit only has the capacity to handle a portion of the approximately 4,000 children facing delinquency charges in Juvenile Court each year. In a poor, urban community like Shelby County, a healthy appointed counsel system is a critical part of the criminal justice system.
The TBA report reveals an appointed counsel system in Tennessee that is far from healthy. The TBA is currently working to raise the compensation rate from the current $40 per out-of-court hour for non-capital cases, $75 per hour for out-of-court on non-capital cases. The rate has not changed since 1994 and according to the TBA, this makes Tennessee court-appointed attorneys among the lowest paid in the country.
A national study of compensation for appointed counsel shows that Tennessee is among the states paying at the bottom end of the fee scale.
“The average rate of compensation for felony cases in the 30 states that have established a statewide compensation rate is less than $65 an hour with some states paying as little as $40 an hour” — from the National Association of Criminal Defense Lawyers (NACDL) study Rationing Justice: The Underfunding of Assigned Counsel Systems
Bar graph from TBA.org
Not only are Tennessee appointed counsel paid at an unusually low rate — lawyers in the survey also cited state-mandated limits on the total fee that are too low to provide adequate counsel. The Tennessee Supreme Court’s Rule 13, which contains the rules for appointed counsel, caps maximum compensation on most non-capital cases at $500-$1,500, depending on the type of offense. Nearly 60% of the survey respondents reported that they “frequently” or “always” reached the compensation cap.
In addition to limited compensation for their legal work, respondents to the TBA survey reported spending an unreasonable amount of time preparing and submitting their fee claims to the state — some as much as 5 hours on compensation paperwork and submission. In fact, more than 75% of the attorneys admitted that they had not even bothered submitting claims for payment, because it took too much time to file.
Given the low fee and administrative burden, it’s not surprising that one-third of the survey respondents said they have stopped taking appointed cases. A vast majority of that group said it was directly related to low compensation.
The TBA will be using the results of this study to continue to push for changes to Rule 13, and how private, appointed counsel is compensated.
Full reports here:
You can read the results of the TBA survey here.
Click here to read the TN Supreme Court’s Rule 13, which sets the rate for appointed counsel.
Find the entire NACDL report “Rationing Justice:The Underfunding of Assigned Counsel Systems” by clicking here.
CORRECTION: The original post stated that non-capital case rate was a blanket $40 per hour. The actual rate is $40 per hour for out of court, trial preparation and $50 per hour for in-court work.