Indigent defense - SCCID suspends payments to Rule 608 appointed lawyers
South Carolina's Commission on Indigent Defense recently announced that they were suspending payment to all attorneys appointed to represent indigent defendants. In South Carolina, we have a public defender system. Each circuit's public defender office represents those who cannot afford lawyers, at least in General Sessions level offenses (felonies and high misdemeanors). Most counties do not provide defense attorneys to those who are charged with magistrate level misdemeanors such as CDV and DUI, even though the solicitor's offices provide attorneys to prosecute them.
When cases are conflicted out of the local public defender's office, such as when there are multiple co-defendants preventing ethical representation of all by the same office, the conflict cases are appointed to members of the local bar under Rule 608. These attorneys, who are not always defense attorneys, have no choice in the matter and must accept the cases. Some defense attorneys volunteer to take some additional cases. Some with smaller offices do this to supplement their income, and others do it because we are defense attorneys, and these cases should not be foisted upon those lawyers who practice exclusively civil law such as real estate attorneys or tax attorneys.
The Commission pays $40.00 per hour out of court/ $60.00 per hour in court to Rule 608 appointed lawyers, which is mandatory by statute, up to an arbitrary cap set by the legislature:
ยง 17-3-50. Determination of fees for appointed counsel and public defenders; maximum amounts; authorization to exceed maximum; payment for certain services. (A) When private counsel is appointed pursuant to this chapter, he must be paid a reasonable fee to be determined on the basis of forty dollars an hour for time spent out of court and sixty dollars an hour for time spent in court. The same hourly rates apply in post-conviction proceedings. Compensation may not exceed three thousand five hundred dollars in a case in which one or more felonies is charged and one thousand dollars in a case in which only misdemeanors are charged. Compensation must be paid from funds available to the Office of Indigent Defense for the defense of indigents represented by court-appointed, private counsel. The same basis must be employed to determine the value of services provided by the office of the public defender for purposes of Section 17-3-40.
There is no compensation for overhead or time spent on cases by secretaries, paralegals, or other support staff. The overhead in most law firms significantly exceeds $40.00 per hour, sometimes by several hundred dollars per hour based on a 40 hour work week, and the compensation as dictated by the legislature does not compensate for the time spent defending appointed cases, it only defrays some of the expense.
Demanding that private attorneys handle these cases at the ridiculous statutory rate results in a significant taking of the attorneys' time and resources. Asking that private attorneys handle these cases without pay is unacceptable.
By continuing to disburse the limited funds to public defender offices and by announcing that no payments will be made to the Rule 608 appointed attorneys, the Commission has conveniently laid the burden of demanding funding from the legislature on the shoulders of the private bar.
