South Carolina Criminal Defense Blog

South Carolina has failed to appropriate funds for the defense of indigents in our state. Our Commission on Indigent Defense (SCCID) has decided that the best option at the moment is to stop paying the attorneys who have been appointed to represent indigent defendants by the courts.

DECEMBER 19, 2008

SC COMMISSION ON INDIGENT DEFENSE SUSPENDS PAYMENT OF LEGAL FEES

In a specially called meeting today the SC Commission on Indigent Defense unanimously voted to suspend until further notice the payment of legal fees in all indigent non-capital criminal and civil cases handled by court-appointed attorneys under Rule 608 of the SC Appellate Court Rules. The moratorium is effective January 1, 2009, and will remain in effect until further action by the Commission.

All final vouchers submitted on or before December 31, 2008, will be honored. However, effective January 1, 2009, only the expenses associated with a case, exclusive of all legal fees, will be subject to reimbursement. Vouchers for legal fees will be held in abeyance and, to the extent possible, paid when funds become available in the future.

The Commission will review its action within 90 days and at that time may authorize the resumption of payments, continuation of the moratorium, or other adjustments as it deems necessary based on economic factors affecting the agency’s budget.

This action became necessary due to a 20% decrease in the agency’s appropriated funding over the last six months and the lack of any legislative funding in the state’s FY 08-09 budget to pay legal fees and expenses to private, court-appointed attorneys handling civil cases under Rule 608. In the previous FY 07-08 budget the legislature appropriated $2.5 million for this purpose, but did not continue the funding in the current budget.

For the first half of the current fiscal year the agency has been paying court-appointed attorneys from fees and fines that are distributed to the agency to offset budget cuts, but most of those funds are now having to replace the 20% loss of appropriated dollars which directly fund the state’s public defender system, the core mission of the agency. Public Defender caseloads have been increasing; and the agency is projecting a steeper increase in indigency determinations throughout the state and a decrease in fees and fines receipts based on current economic conditions.

Commission Chairman Harry A. Dest of Rock Hill stated, “the Commission is acutely mindful of the impact that its action will have on members of the private bar who are appointed to indigent cases and intends to authorize a full resumption of payments at the earliest possible time that economic conditions warrant.”

I have many thoughts on this issue, and no time at the moment. Below are the thoughts of another South Carolina defense attorney, whom I agree with, reproduced with his permission:

I do have some serious concerns with SCCID’s action in this regard. Part of the press release stated, “the state’s public defender system, the core mission of the agency.” The core mission of the Commission is to provide adequate indigent services. That does not mean adequate indigent services to the defendants who are lucky enough to be appointed public defenders, it means all indigent defendants. This is not an issue of lawyers getting paid, it is an issue of indigent defendants receiving adequate protection under the law.

Whenever a private attorney is forced to take a defendant’s case without adequate compensation, the attorney is forced into a potential conflict of interest with the client and lawyer’s own well being. This may not be an “actual adverse interest” when the lawyer is only expected to spend 10 or 20 hours a year on indigent services. But when that lawyer is expected to spend 40, 80, or 120 hours a year without compensation, it is impossible for that attorney not to resent the time spent on that case that could be spent with paying clients or even his family.

I for one now have to make a decision of whether to continue to represent an individual charged with double homicide, or consider whether his case and the other murder case I just finished may mean that I do not get to fund my retirement this year, or perhaps I will forgo contributing to my sons’ college fund, or simply fail to take a vacation with my family this year.

The appearance is that the Commission is overly concerned with drafting guidelines and policies that seem to hinder lawyers getting paid in indigent cases; it would be refreshing if they appeared to be equally concerned with drafting guidelines assuring indigents are receiving adequate representation. Some very simple resolutions would go a long way to resolving this problem. First, the Commission needs to be clear in whether the vouchers will ever be paid. Second, the Commission should publish to Circuit and Family Court Judges a resolution such as follows:

The Commission has considered the threat to indigents receiving representation from unpaid attorneys and would caution judges that in cases that are complicated or the attorney has significant time in appointments during the calendar year, a conflict of interest may result between the attorney and the indigent receiving services if that attorney feels he cannot adequately spend time on the indigent’s case. While no one factor can be controlling, the Commission is extremely concerned when lawyers spend more than forty hours in one year on indigent services. If a judge feels an indigent may not be receiving adequate services due to this economic downturn, they should appoint other counsel, or in more complicated cases, order the State to immediately and indefinitely suspend prosecution of the indigent’s case, and if necessary, immediately release the defendant from incarceration until the State resumes funding for his defense.

All across this nation public defenders are being relieved from cases when the state does not provide adequate resources for indigent defense. http://www.painreliefnetwork.org/prn/citing-workload-public-lawyers-reject-new-cases.php and see http://www.nlada.org/Defender. This state is near the bottom in funding for indigent defendants and yet the Commission does not appear to be meaningfully challenging continued reduction in funding. It is time for the Commission to lead the way in asking judges to reduce public defender and private attorney’s indigent caseload. If the Commission cannot do that, it can at least make its position known that this is unacceptable and judges should be mindful of these concerns.