South Carolina Criminal Defense Blog

An Horry County public defender was given a public reprimand for numerous violations, including failing to communicate with clients, failing to communicate with the Office of Disciplinary Counsel during their investigation, and failing to give competent representation to clients. This lawyer's case has re-sparked debate about the overwhelming caseloads that public defenders are working with - it raises the question, is the public defender simply providing incompetent representation to indigent clients, or is he prevented from providing competent representation by the conditions he is given to work in?

My own rant - sorry if you are sick of hearing it: When caseloads become unmanageable, public defenders have an ethical responsibility to refuse cases - with no funding, huge caseloads, and insufficient office staff, public defenders cannot possibly fulfill their duty to independently investigate every case, to meet with their clients, to respond to their clients' communications, and to do even the most basic preparation for trial in their cases. If you are a chief public defender and you know that your attorneys are overwhelmed, stop accepting cases. If you are a rank and file public defender and you are not prepared for trial, refuse to proceed and make a record as to why you were unable to be prepared.

Another attorney was publicly reprimanded for failing to communicate with his clients he was defending in a civil matter, including failing to inform them when an arbitrator awarded damages to the plaintiff in their case.

An attorney was disbarred after he allowed his license to be suspended for failing to complete CLE requirements, then failed to tell his clients about the disciplinary proceedings, failed to keep records of his trust account, misappropriated funds from his trust account, and did not keep malpractice insurance (which means the laundry list of clients whose cases he was neglecting got screwed). The sanction includes a requirement that the attorney enter a monitoring contract with Lawyers Helping Lawyers before he can seek to be reinstated (among other requirements), which indicates that the difficulties may have been brought on by substance abuse.

An attorney was disbarred after not keeping up her trust account, misusing clients' funds, being charged herself with issuing fraudulent checks, not paying a court reporter for a transcript, and failing to communicate with her clients.

One thing that all of these cases have in common is the failure to communicate with clients - whether it is a symptom of more serious underlying problems or the source of the complaints in and of itself, it is clear that if we find ourselves not taking clients' phone calls or not responding to correspondence from clients, we need to step back and take a look at our practice and figure out what we can do differently.

The Ohio judge who held public defender Brian Jones in contempt for refusing to proceed with trial on a case he had been appointed to only two hours before (later reversed on appeal) has been disciplined for misconduct in numerous other matters, including berating defense attorneys in front of a jury, refusing to provide records for appeals from his court, expressing his personal opinion to a jury, and ex-parte communications with a prosecutor. He was suspended from the practice of law for one year, with 6 months stayed.

The allegations included that the former judge, attorney John Joseph Plough of Ravenna, Ohio,

failed to uphold the integrity and independence of the judiciary; has failed to dispose of judicial matters promptly, efficiently, and fairly; has failed to diligently discharge
administrative responsibilities without bias; has engaged in ex parte communication; and has engaged in conduct that is prejudicial to the administration of justice.

The one count that was dismissed against Plough involved another instance where he denied a public defender's motion for continuance when she had just been appointed a case, but then relented and granted the continuance later in the day.

H/T Law of Criminal Defense

Public Defender Revolution is a new public defender blog worth subscribing to, written by two public defenders, who speak the truth about caring for and fighting for their clients. Citing the ABA guidelines/ standards for ethical caseloads, they are encouraging other public defenders to stand up and refuse to accept cases when they are overburdened and cannot provide effective representation - a position that I've been advocating for some time as the only solution to the failure of states to adequately fund indigent defense.

H/T PDR for this video: San Francisco's Chief Public Defender refuses to accept budget cuts - or will refuse to accept new cases if the budget is cut:

Focuses on defendants who have not been provided with attorneys to handle their appeals.

“If these lawyers were truly interested in helping the defendants, they would focus on getting them the services they need instead of chewing up state dollars on a lawsuit. Unfortunately, the state will be forced to spend already limited dollars on unnecessary litigation instead of serving these defendants,” says Chris Schrimpf, a spokesman for Governor Perdue.

Looks like the governor just does not get it. The lawyers are focusing on getting the services that defendants need by forcing the state to provide them. The right to effective counsel is not optional and the state is obligated to provide for it.

When two former Pennsylvania judges were indicted after accusations that they had received millions of dollars in kickbacks and payments in exchange for sentencing children to detention centers, one thing that was pointed out was that many of the children who appeared before them were not represented by counsel.

One of the questions that has been asked is why no-one stepped in and stopped it from happening - if the children who stood before the court had counsel as they are entitled to, would the kids for cash scandal have been exposed sooner?

Luverne County Chief Public Defender Basil G. Russin appeared before a commission last month to answer questions including why he did not step in and do something - Russin's response was that there was no funding for juvenile court, he and his lawyers had no training in juvenile justice and, despite concerns expressed to him by an assistant public defender, they did not provide lawyers to juveniles.

"... unfortunately until a month ago, we had no training in juvenile," Russin said last month. "We have, you know, our funding. It's a terrible cop out and a terrible excuse. We didn't know what defenses existed out there. We do now. And now I see all the work we have ahead of us. And I don't know where I'm going to get the money to do this, but hopefully I can get it somewhere." . . .

While testifying, Russin admitted that Assistant Public Defender Jonathan Ursiak expressed concerns to him juveniles appearing before Ciavarella without attorneys.

. . . "I said, we're not going to seek clients. And we don't have the time or the manpower to intervene," Russin said.

It is a cop-out, and Russin's office shares the responsibility for what happened in Luverne County, but nevertheless it also spotlights why funding for indigent defense is important and what can happen when it falls by the wayside.

Not exactly the strongest statement, but it's a start:

The head of the Orleans Parish Public Defender's office said he may have to start refusing cases after a one-time allocation from the city of New Orleans dries up, with no funding included in next year's budget.

I've advocated for a while now that lawyers, including public defenders, should refuse to accept appointments when adequate funding is not made available or when their case loads are so high that they are ineffective by default. When the South Carolina Commission on Indigent Defense announced that they would no longer pay appointed attorneys due to the legislature's lack of appropriation of indigent defense funds, I and other defense lawyers filed motions to halt the prosecution of our clients until funding was made available, and to release them from jail.

By and large, the public is not concerned with the rights of people who are accused of crime (until it happens to them), and when the voting public is not concerned politicians are not concerned. The only thing that will get the attention of the public and the legislature is when prosecutions stop because attorneys ethically refuse representation or because judges begin releasing people who cannot be prosecuted.

When a public defender's office cannot afford to hire enough attorneys to handle the numbers of accused that are being arrested and prosecuted in our prison obsessed culture, or cannot afford to hire enough staff to conduct any meaningful investigation of clients' cases, or when funding is not made available to retain the experts needed to defend a client, they have an obligation to refuse to accept cases until funding is made available - if the state is going to prosecute citizens in the numbers that it does, it must pay the tab.

Friday I had a preliminary hearing in Conway, and as usual was depressed and angry when the judge announced that all public defender clients' hearings were waived. All stood and gave their names to their court one at a time so that they could be marked off the list; the judge explained that public defenders' case loads were too high to expend time on a preliminary hearing, and then they were excused one at a time.

A post by Monroe Freedman at Legal Ethics Forum sums up what needs to happen before we will see change in funding of indigent defense - I haven't read Ordinary Justice yet and Freedman did not give a link to Becker's review so I can't say for sure that he was referring to indigent defense, but however Freedman meant his words, they ring true in this context as well:

In addition, as Mr. Becker recognizes, “the criminal justice system would collapse.” So much the better. The fact is that the administration of justice has long been in a state of collapse – a fact that we lawyers and judges have been covering up by maintaining a pretense of ethical conduct and of due process of law. As a Massachusetts Supreme Judicial Court Justice told me, the only way to force real reform is to bring down the system. Nothing short of that will command the attention of the media, the public, and public officials, and force the allocation of the resources that are necessary if we are to live up to our professional and constitutional claims.

Macomb County prosecutor Eric Smith has threatened to sue the county if his budget is cut, saying that it would be unconstitutional - referring to a clause in the Michigan Constitution which says that every Michigan County must create and maintain a prosecutor's office.

"We're looking at chaos," Smith said. "Some of our prosecutors are handling over 100 files in some district courtrooms. That's not adequate representation for the victims of crime in this county."

Ok. I suspect that many public defenders out there will laugh at the terrible plight of the Macomb County prosecutor who must suffer with a case load of more than 100 files. Particularly considering the logistical support that any prosecutor has when preparing a case for trial (investigators, help from the arresting agency, pretty much anything that they want they will get it).

Macomb County does not even have a public defender's office yet, although recently the creation of one was approved. Smith opposed the creation of a public defender's office, citing concerns that the county already spends $3 million dollars a year on appointed attorneys.

Under the proposed budget cuts, "the prosecutor's office would lose $735,269 from its estimated $9.8 million budget in 2010, a 7.5 percent cut. Another $2.4 million would be cut from the sheriff's 2010 budget, estimated to be about $63 million."

Glad to see that our priorities are straight, and that the good people of Michigan are working hard to preserve and protect their constitutional right to be prosecuted. Never mind Gideon and the Sixth Amendment.

The director of the Capital Appeals Project in New Orleans, Louisiana apparently resigned this month amid allegations of embezzlement:

The director of a nonprofit death penalty appeals agency abruptly resigned this month as state officials were headed to his New Orleans office to inspect the financial records he kept, later finding at least $100,000 in state and other public funds unaccounted for.

Jelpi Picou, an attorney hired in May 2004 by the Louisiana Public Defender Board to run the Capital Appeals Project, resigned from the post Nov. 2, days before members of the state board were to arrive for an inspection.

Given the lack of funding for indigent defense around the country, as defense lawyers struggle to preserve the Sixth Amendment right to counsel, the last thing that we need is allegations of misappropriation of funds by a public defender. It doesn't appear that Picou has been charged yet, and hopefully what they are dealing with is bad book-keeping and not theft of public funds that were designated for representation of indigent defendants.

Doug Berman at Sentencing Law and Policy picked up this story out of New York, where lawmakers are trying to pass a law that would require persons convicted of criminal domestic violence (CDV) to be listed on a registry similar to sex offenders. Most of the New York article is devoted to telling the story of one woman who was terrorized by her husband, and how a domestic violence registry could prevent the man from terrorizing others in the future.

Berman then takes the idea to its extreme, espousing that all serious crimes should be subject to registry requirements:

Because I am generally a fan of criminal justice transparency and often fear that expressed concerns about privacy are overstated, I generally favor the notion of having all serious criminal offenders subject to basic registration requirements. (I am troubled, however, by criminal laws that threaten severe punishments for a failure to keep a registration updated forever.)

The key to sound registry requirements, in my view, is ensuring that these registries are accurate and can include information about the age of a conviction and true nature of the offense conduct. (This recent commentary at The Atlantic, titled "Too Much Information, Not Enough Common Sense," speaks to some of these concerns.) I wonder if any public policy or law reform groups are working on model criminal registry legislation. A well-considered basic model for all these types of law would like be a real contribution to sentencing law and policy.

This is wrong on so many levels, I don't know where to begin. Maybe with what seems to be a basic misunderstanding or misinformation on the part of the professor - he seems to want to make all criminal convictions public, but the fact is that all criminal convictions are public and have always been. The information is there for anyone to find, and the only thing that a registry does is impose upon the accused a continuing obligation to register their current address and photograph so that anyone may find them at any given time. In most states, you can pull anyone's criminal history from a website in a matter of minutes. For example, official South Carolina records checks are available at SLED's website, and in many counties all arrests, regardless of conviction, including identifying information and the status or disposition of the case are available to the public on the judicial department's website. Registries have nothing to do with "criminal justice transparency."

The push for a domestic violence registry has everything to do with political posturing. The story of one victim is told for full dramatic effect - the monster who holds a knife to his wife's throat, spits on her, locks her and their daughter in a closet, and now is lurking on dating websites, seeking his next victim - it is used to grab attention, to instill fear, and to move the listener to action. The legislator who promotes this bill wants to be seen as a hero who is protecting the public. It gives him or her exposure as they lobby for their bill, and anyone who opposes the bill is painted as being "for" domestic violence. The legislator, our hero, is gathering votes.

We need to have domestic violence laws, because there are true victims of domestic violence and it is a problem that needs to be addressed. But the truth of the matter, which is not seen by the general public and certain sheltered law professors, is that "true" domestic violence cases make up a very small percentage of the cases that come through the court system. They are rare, indeed, for those that actually spend time in the criminal courts and see the cases that are made.

Much of what I see in South Carolina are manufactured domestic violence charges. Police arrive at a home and tell the residents if we are called, someone is going to jail. Citizens are jailed and charged with domestic violence because there was a verbal argument that got too loud. A wife calls the police and she is then arrested when the husband says hey, she hit me. People are jailed with no evidence of physical violence whatsoever. Husband and wife are both taken to jail, because police cannot decide who the aggressor was. Husband or wife make false complaints of domestic violence to seek an advantage in their divorce or child custody case. Then there are cases of simple assault, by the man or woman, that are one time occurrences and do not qualify as spousal abuse.

In South Carolina, the right to counsel is systematically denied to indigent defendants in the magistrate and municipal courts - our Chief Justice has instructed magistrates to ignore the U.S. Supreme Court and to not appoint counsel to those who cannot afford attorneys:

Alabama v. Shelton [is] one of the more misguided decisions of the United States Supreme Court, I must say. If we adhered to it in South Carolina we would have the right to counsel probably … by dragooning lawyers out of their law offices to take these cases in every magistrate’s court in South Carolina, and I have simply told my magistrates that we just don’t have the resources to do that. So I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation.

The result is that those persons accused of CDV 1st offense in the magistrate courts or the city courts who cannot afford an attorney plead guilty, whether they are guilty or not. Professor Berman would have these individuals, who in my experience make up a significant portion of those charged with CDV 1st offense, emblazoned with today's modern scarlet letter, an online registry. My hope is that someone with Berman's stature and voice would not fall prey to the hype and politics of fear, and instead could broadcast the truth of what happens in our nation's courtrooms every day.

A report released last Tuesday by the National Association of Criminal Defense Lawyers (NACDL) provides an in-depth examination of the state of misdemeanor courts across the country and particularly the denial of defendants' Sixth Amendment right to counsel in these courts. It is long but it is worth reading by anyone with an interest in criminal law, and hopefully it will find its way to the right lawmakers and judges.

In Argersinger v. Hamlin, in 1972, the United States Supreme Court held that defense counsel must be appointed in any criminal prosecution, “whether classified as petty, misdemeanor, or felony, that actually leads to imprisonment even for a brief period.” In Scott v. Illinois, in 1979, the Court held that counsel does not have to be appointed if the defendant is fined only, and is not sentenced to jail time. In 2002 in Alabama v. Shelton, the Court reaffirmed the rule that, “absent a knowing and intelligent waiver, no person may be imprisoned for any offense …unless he was represented by counsel at his trial,” holding that even when a defendant receives a sentence of imprisonment suspended to probation, he must be afforded the right to counsel.

The NACDL report spends a lot of time discussing the huge caseloads that are placed on public defenders in these courts, which, coupled with a lack of funding, results in incompetent (and unethical) representation of indigents. While researching for this report, they also discovered that in South Carolina, you do not get an attorney if you are charged in the magistrate or municipal courts - judges and prosecutors will flat-out say, you are not entitled to an attorney and you must represent yourself. In the words of the Chief Justice of our state supreme court, who has instructed our magistrates not to provide counsel to indigents:

Alabama v. Shelton [is] one of the more misguided decisions of the United States Supreme Court, I must say. If we adhered to it in South Carolina we would have the right to counsel probably … by dragooning lawyers out of their law offices to take these cases in every magistrate’s court in South Carolina, and I have simply told my magistrates that we just don’t have the resources to do that. So I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation.

From the introduction of the NACDL report:

NACDL’s comprehensive examination of misdemeanor courts, including a review of existing studies and materials, site visits in seven states, an internet survey of defenders, two conferences, and a webinar, demonstrated that misdemeanor courts across the country are incapable of providing accused individuals with the due process guaranteed them by the Constitution. As a result, every year literally millions of accused misdemeanants, overwhelmingly those unable to hire private counsel, and disproportionately people of color, are denied their constitutional right to equal justice. And, taxpayers are footing the bill for these gross inefficiencies.

Legal representation for misdemeanants is absent in many cases. When an attorney is provided, crushing workloads often make it impossible for the defender to effectively represent her clients. Counsel is unable to spend adequate time on each of her cases, and often lacks necessary resources, such as access to investigators, experts, and online research tools. These deficiencies force even the most competent and dedicated attorneys to engage in breaches of professional duties. Too often, judges and prosecutors are complicit in these breaches, pushing defenders and defendants to take action with limited time and knowledge of their cases. This leads to guilty pleas by the innocent, inappropriate sentences, and wrongful incarceration, all at taxpayer expense.

The recommendations in the report include:

1. Divert misdemeanors that do not impact public safety to penalties that are less costly to taxpayers (we do have some programs in South Carolina courts, such as the alcohol diversion program (ADP), pre-trial intervention (PTI), and conditional discharges for some first time drug offenses, but these programs are often are not taken advantage of if there is no attorney to advise the defendant that they exist);

2. Reduce pressure on defendants to plead guilty, particularly at first appearance (many of our magistrates and municipal court judges place considerable pressure on defendants to plead guilty at their bond hearings, and there is never an offer of counsel for magistrate level offenses or a waiver of counsel; in some City of Myrtle Beach cases, if the defendant does not plead out at the bond hearing, their court date will be set within a day or two which makes it difficult for them to find an attorney to help them);

3. Enforce ethical obligations of all participants in misdemeanor adjudications (it is the ethical duty of prosecutors and judges, not just defense counsel, to ensure that defendants' constitutional rights are protected and that justice is done in the courtroom);

4. Provide counsel for any defendant facing the possibility of incarceration (because the Sixth Amendment and the United States Supreme Court says so?); and

5. Provide public defenders with the resources necessary to effectively represent their clients (or, in South Carolina, we could begin by just providing public defenders in the misdemeanor courts).

A basic rule of ethics is that an attorney cannot simultaneously represent two or more clients whose interests are directly adverse to one another - this usually arises in criminal defense practice when an attorney attempts to represent two co-defendants in the same case. Lawyers are often confronted with co-defendants who will insist that their positions are not antagonistic and that they will present a unified front throughout the litigation; however, defense attorneys know that there is a substantial likelihood that this will not bear out through the end of the case. If defendant 1 exercises her constitutional right to testify in her own defense, then defendant 2's attorney has a duty to effectively cross-examine defendant 1 with only defendant 2's interests in mind, which in most cases will be difficult if not impossible to do. Often a situation arises where one defendant is more culpable than the other, or where one defendant can receive a better deal or even a dismissal for providing information on the other. These conflicts are often impossible to predict with any certainty at the beginning of a case.

An attorney may be tempted by the promise of more money for representing two clients instead of one, or may understand that hiring two attorneys instead of one will cause a financial hardship on some people, but the bottom line is that if and when the conflict develops the attorney will have to withdraw from representation of both defendants. Often an attorney who accepts representation of two or more co-defendants has no intention of taking that case to trial, and if they do take the case to trial then the prosecutor and the trial judge have a responsibility to raise the question of the conflict and potentially remove the attorney from the case.

The rule is designed to protect clients' interests and to ensure that the attorney's duties of loyalty and confidentiality to each client are not breached. Rule 1.7(a) states that a conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

1.7(b) says that a client can waive such a conflict if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

Conflicts are imputed to members of a law firm who practice together for essentially the same reasons. Members of a law firm work together and typically discuss their cases and have access to one another's files. Rule 1.10(a) states:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

With the budget problems affecting the public defender's offices, one way to significantly cut costs is to stop appointing private attorneys to conflict cases - for various reasons, it is more cost effective for a salaried public defender employee to handle a case than it is for a contract defender or a private appointed attorney. With this in mind, Rule 1.10 regarding conflicts was amended a few years ago to attempt to make it easier for public defender offices to keep conflict cases within their office. 1.10(e) now reads:

A lawyer representing a client of a public defender office, legal services association, or similar program serving indigent clients shall not be disqualified under this Rule because of the program’s representation of another client in the same or a substantially related matter if:

(1) the lawyer is screened in a timely manner from access to confidential information relating to and from any participation in the representation of the other client; and

(2) the lawyer retains authority over the objectives of the representation pursuant to Rule 5.4(c).

Due to the impracticability of providing ethical conflict-free representation and of effectively screening attorneys within a public defender office, most public defenders rightly ignored this amendment to Rule 1.10 and continued to send conflict cases out of their offices. Now more pressure is being placed on public defenders state-wide to represent conflict defendants within their offices, and some public defenders are giving in. Chief Justice Toal issued a memorandum in January of this year, in light of the budget crisis, instructing public defenders to keep conflict cases within their offices. Some circuit court judges are now telling public defenders that they must keep conflict cases within their office, and are threatening to refuse to sign appointment orders.

It is interesting that the same motivation exists for government to attempt to ignore conflicts as when private attorneys attempt to ignore conflicts - money. For the private attorney, it is more lucrative to take on both co-defendants and collect a fee from each. For the government, it is cheaper if the public defender keeps co-defendants in their office and the government does not have to pay an outside attorney. Indigent defendants are not entitled to less conflict-free representation than any other citizen, and the chief public defenders across the state should not be giving in to these demands, whether it comes from the legislature, the circuit court judges, or the chief justice.

A S.C. ethics opinion issued earlier this month answers the question: can a public defender's office retain four co-defendants within the same office where each co-defendant has inconsistent defenses? Predictably, the answer is not yes or no but the answer says look at the Rules - if the screening and autonomy requirements of Rule 1.10 are met there is no problem; however, if the screening and autonomy requirements of Rule 1.10 are not met, then the public defender must comply with Rule 1.7 the same as everyone else.

Screening under Rule 1.10 - each attorney cannot have access to the other's files and other confidential information regarding the other's case. Autonomy raises another troublesome issue - "the lawyer retains authority over the objectives of the representation pursuant to Rule 5.4(c)." Rule 5.4(c) states

A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

Each rank and file public defender is employed by the chief public defender, who necessarily has supervisory authority over them and must monitor their work. This means that in an ordinary situation, the chief public defender must look at what her employees are doing in their cases and advise them when necessary.

There are several potential solutions:

- Conflict cases can be sent to an adjoining circuit's public defender office. This will add to the already overburdened case load of each office and require the additional driving time to visit conflict clients in jails and to appear in courthouses that are, in some cases, hours away from the office.
- Each public defender could create compartmentalized conflict case units, who would be housed in separate offices with separate filing systems and support staff, and who would not be subject to the supervisory authority of the chief public defender.
- The public defender can enter into contracts with private attorneys who would handle the conflict cases for a set compensation, in addition to their private practices. In several counties a system such as this was already in place, but in some areas has fallen apart due to the lack of funding. It is certainly less costly than appointing individual private attorneys to each conflict case.
- Private attorneys can be appointed from the appointment list to represent conflict defendants at a set hourly rate. This is what has been happening in most areas, and it is probably the most effective solution until the legislature stops appropriating funds to pay for the representation. It is the most effective, but also the most costly solution.

The Courts cannot and should not order public defenders to represent conflicted clients in order to save money. I've always been told that money is the motivating factor in most ethical violations, and apparently this is true whether it is a private attorney committing misconduct or whether it is institutionalized misconduct within the court system.

SCCID has announced that they will resume payments through February 28:

01/16/09

The SC Commission on Indigent Defense has voted to temporarily lift a moratorium on payments which was approved on December 19, 2008, and to authorize a temporary resumption of all payments for legal fees and expenses to attorneys appointed pursuant to Rule 608. The authorization is valid until February 28, 2009. The Commission will meet at its regular quarterly meeting on February 19, 2009, to consider whether to continue payments or to reimpose the moratorium based on the financial outlook of the agency at that time. Vouchers that are submitted should be final in nature. No interim expense vouchers should be submitted except with prior approval of the Court.

Executive Director Patton Adams and Deputy Driector and General Counsel Hugh Ryan will be available on Friday, January 23, 2009, from 12 Noon until 2:00 PM in the Osprey Meeting Room at Marriott Grand Dunes, Myrtle Beach, SC, during the Winter Meeting of the SC Bar to answer any questions which any member of the Bar may have.

And that Patton Adams and Hugh Ryan will be available to answer questions regarding 608 payments at the SCBar conference Friday, January 23:

01/23/09

SCCID Executive Director Patton Adams and Deputy Director and General Counsel Hugh Ryan will be available at the SC Bar Winter Meeting on Friday, January 23, 2009, to answer questions about Rule 608 payments. They will be available from 12 Noon until 2 PM in the Osprey Meeting Room at the Marriott Grand Dunes Hotel.

Last Friday the Commission on Indigent Defense met and decided to pay vouchers of appointed attorneys through March 1st of this year. This means that we will not be arguing motions to halt the prosecutions and to release pre-trial detainees in upcoming trials, at least until March 1st.

However, the funding crisis has not been resolved. The Commission is not saying that it will pay vouchers after March 1st, and no additional money has been appropriated as of yet. The governor and the legislature has repeatedly said that there will be no additional funding in the upcoming year and that further cuts are likely. Because the motions to continue appointed cases are temporarily moot, it falls on anyone who has a voice in the legislature to educate our lawmakers as to the importance of funding indigent defense, and why this is not discretionary funding that can be cut when times are hard economically.

Public defender office budgets have been cut, and offices that were woefully understaffed to begin with are now cutting back even further to accomodate the budget cuts. Our solicitor's office employees inform me that the prosecutors' budgets have been cut as well (what this means exactly I am not sure - considering that prosecutors outnumber public defenders, the prosecutors are not taking cuts in their salaries, and they have alternative sources of funding such as forfeitures and the money that they rake in from the pre-trial intervention program).

Related posts:
South Carolina attorneys ask courts to halt prosecutions until State comes up with funding
S.C. Bar releases statement in response to suspension of legal fees for court-appointed attorneys
Indigent defense - ethics
Indigent defense - what can be done
S.C. indigent defenders have dropped the ball
Indigent defense - SCCID suspends payments to Rule 608 appointed lawyers
No funding for indigent defense?

In the comments to another post, B. Tannebaum asks why I generalized about, to paraphrase, public defenders being more likely to plead their clients. This deserves an explanation and its own post. From the comments:

It appears that you are saying an attorney's advice is based on the attorney's own propensity for trials or pleas. I understand that.

I am disturbed though, by this statement you make: "Public defender clients, and those of some private attorneys, plead guilty more often because, when assessing the client's case, the public defender is more likely to inform the client that this case cannot be won, and that a plea is in their best interest."

Why do you generalize about public defenders. I was one, and a great number of private attorneys once were as well. To say that the public defender is more likely to inform the client that the case cannot be won is overgeneralizing public defenders.

Sure, public defenders have more cases and can't spend the time that some, and I mean SOME private attorneys spend on cases, but there are dedicated public defenders that take great care to advise clients whether to plea or try the case.

Can you clarify your statement?

I was a public defender also. In the past, I have been overly careful about what I said about public defenders and how I said it, and lately I've come to believe that that is a mistake. It is true that to say public defenders are more likely to plead their clients is an over-generalization, because it is true that there are dedicated public defenders that take great care to advise clients whether to plea or to try their case. I felt that I gave competent advice and was never reluctant to try a case when I was a public defender; I'm sure that Brian T. and many of us did as well.

But, at least here in my corner of South Carolina, it is also true that, in general, public defenders are more likely to plead their clients. At the risk of offending the public defenders who do not fall into this category, I think that it needs to be talked about. Not in a mean-spirited way, but with a full understanding and acknowledgment of the raw nerves that every public defender has as a result of being emotionally beaten and abused by their clients and the system in general.

My intent in speaking my mind is not to jump on the bandwagon and belittle public defenders. It is to hopefully motivate public defenders that are reading to do something different and try to make changes in the system, rather than feeling like victims of the system. As I said in a post last month, "[t]he public defenders and others charged with the defense of indigents in our state need to accept responsibility for ensuring that we are complying with the Sixth Amendment and providing effective representation."

1) On a macro level: the public defenders offices are not receiving adequate funding to do what needs to be done to provide effective representation. The caseloads are too high, they do not always use investigators and/or experts when needed, and the clients often get short thrift as a result. When the lack of resources rises to a level where clients are receiving ineffective representation across the board, defenders have an obligation to refuse cases. Our legislature is not going to provide funding for defense attorneys, public defense or private appointments, unless they are made to realize the necessity of funding indigent defense. It is not otherwise their priority.

Public defenders, I optimistically believe, do not dig in their heels and refuse cases or take other drastic action, because they do not want to suffer the political backlash. For example, they do not want to lose their jobs. But, I say, if your job is to uphold the promise of Gideon and the Sixth Amendment, and if you must trample on the Sixth Amendment in order to keep your job, what is that job worth anyway?

2) On a micro level (specific instances): locally, I see public defenders speaking to their clients for the first time at roll call, standing in front of the prosecutor, and telling them that they are an idiot if they don't take the plea offer the prosecutor is offering them. On more than one occasion, I have seen this play out, with a client who is insisting, in front of the prosecutor, that they are innocent.

I have family members of potential clients call me, begging me to take their son, wife, or husband's case, because a public defender has not been to see them at the jail where they have been locked up for 2 or 3 months.

I have new clients who come to me after being locked up on a bench warrant for failure to appear for roll call after not being able to get in touch with their public defender who will not return their calls.

I have watched public defenders (and private attorneys) struggle through a guilty plea, with the assistance of prosecutor and judge, their client maintaining that they are not guilty the entire time. (In all fairness, I have seen judges refuse to accept these pleas as well)

Common complaints from cases we pick up from public defenders locally are that their public defender would not talk to them, listen to them, return their calls, visit them at the jail, called them stupid, tried to force them to plead guilty. Most public defender clients cannot choose their lawyer. If they could go out and retain a private defense attorney, they would not be a public defender client in the first place and they do not have a choice.

Our criminal justice system is a machine, gears turning and crushing human beings, spitting them out, one guilty plea after another, with criminal records and prison sentences. The role of a defense attorney is to throw a wrench into the gears whenever possible, not to apply grease liberally and assist in the process.

Our public defenders office waives every preliminary hearing.

There are public defenders who meet with their clients, who look at the evidence in their cases, and who do the best that they can despite the resources that they have. If you are one of these public defenders, I am not speaking to you or about you, other than I am asking you to fight for more resources and to motivate the lawyer working next to you to care about his or her client. If you are a public defender from another area of the state or country, where your office is systemically geared to motivate you and help you to defend your clients to the utmost of your abilities, I am not speaking to you or about you.

There are different types of people who are attracted to public defenders offices: 1) lawyers who are young and want trial experience; 2) lawyers who are passionate about criminal defense and who want to be in a position to help people in need; and 3) lawyers who cannot find a job anywhere else (and various combinations of 1-3). A public defenders office should be actively recruiting 1 and 2, and avoiding 3. A public defenders office should be encouraging the rank and file to try cases when the client asks for a trial, and training them as to how to try cases. If the office is not doing this, then 1 and 2 are not getting what they bargained for, and will quickly become burned out and jaded.

Public defenders are on the front lines, in the trenches. I fully appreciate that. Public defenders need our support - that may be support in arguing for the funding that they need, or support with litigation if they ask us for help. If any public defender calls my office or sends me an email, and needs help with anything, I will give it to them without hesitation.

Despite all of the above, I appreciate all of our public defenders. Any public defender who reads this and who is fighting for their clients in the best tradition of public defenders everywhere may misunderstand my intentions and feel offended. But - again, that is not who I am speaking to, which is, to bring us back to Brian T.'s point, the problem with generalizations.

The SCCID and the S.C. legislature believe that South Carolina's private bar are going to shoulder the burden of all appointed cases without compensation. Prosecutors are getting paid, judges are getting paid, and public defenders are getting paid - the only person standing in the courtroom that is expected to work without compensation is the private attorney who has been drafted into representing an indigent defendant.

Attorneys in Beaufort, Horry, and York Counties thus far have filed motions with the court requesting that prosecutions be halted and their clients released from jail until such time as the legislature provides funding for the defense of indigents in our state. This is not discretionary funding that can be set aside when times are hard - if we want to continue prosecuting defendants the state has a constitutional obligation to provide an effective defense for them.

The South Carolina Commission on Indigent Defense voted late last month to stop paying court-appointed attorneys in non-capital criminal and civil cases, a decision that has angered many in the state's legal community.

Beaufort lawyer Jim Brown filed a motion in Beaufort County court Wednesday to halt prosecution of Alfonzo Howard, who faces eight felony counts and up to 150 years in prison if convicted. Brown was appointed to represent Howard in spring 2007.

Brown wants his client released on bond -- which was set at $1 million after his May 2006 arrest. He also wants Howard's trial, scheduled for February,postponed yet again. Brown argues that he can't adequately represent Howard if the state won't pay his legal fees.

"This conflict is a realization of the tension between Howard's needs for vigorous representation, involving hundreds of hours of work, and counsel's financial interests in maintaining a solvent solo practice," Brown wrote in his motion. "The current situation of certain non-payment of attorney fees guarantees that counsel will be deprived of any payment for his services, will foot the bill for his office overhead and will be forced to forgo other profitable compensation."

Fourteenth Circuit Deputy Solicitor Angela McCall-Tanner will try the case for the state and said she's sympathetic to the plight of state defense attorneys. However, "I can't stop prosecuting because the economy is in a rut," she said.

"I'm going to continue preparing for this case, and await the judge's ruling," she added. "I understand the argument of the defense attorneys, but I've got a job to do. My office has faced budget cuts, too, but I still have to prosecute."

Because she is getting paid to prosecute the case. What do you suppose Fourteenth Circuit Deputy Solicitor Angela McCall-Tanner's response would be if she was told she will no longer receive a paycheck? I have a suggestion - lets cut off all compensation to prosecutors and judges, and see how long it takes before the legislature finds the funds necessary to pay them.

State Sen. Tom Davis, an attorney with two court appointments in his caseload, said the legislature should prioritize spending in the face of slumping tax revenues.

"As an officer of the court, you've got an obligation to take on those appointments," he said. "We're in tight financial times, and quite frankly (paying court-appointed attorneys) is pretty far down on the list of priorities, behind health care and education and a host of other things.

"As members of the bar, we just have to take up that burden right now."

My office currently has 30 + appointed cases, several of which will be trials that may last a week or more. I know of at least one local attorney, who had contracted with our public defender office, who has 80 + appointed cases and has now been told she will receive 0 compensation for the time that she is investing in those cases. The reality is that in the most extreme cases, the conscription of appointed attorneys can result in the loss of their livelihood. No payment means that the doors close. When an attorney is in trial in a week long murder prosecution, they are not accepting paying clients or working on their paying clients' cases.

This is not the private bar's financial burden to bear. It is the responsibility of the government and the government alone to provide a defense for those who are indigent, if it chooses to prosecute them. The Courts have to step in and ensure that indigent defense is being funded, and the only way to do that may be by sending a message to the legislature that prosecutions will come to a halt until the funding is made available.

Related posts:
S.C. Bar releases statement in response to suspension of legal fees for court-appointed attorneys
Indigent defense - ethics
Indigent defense - what can be done
S.C. indigent defenders have dropped the ball
Indigent defense - SCCID suspends payments to Rule 608 appointed lawyers
No funding for indigent defense?

In August '07 public defender Brian Jones was held in contempt of court for refusing to proceed with a trial 2 hours after he was appointed to a case. This week the Court of Appeals overruled the contempt, holding that the municipal judge abused his discretion in not granting a continuance so that the attorney could prepare for trial. (H/T Law of Criminal Defense)

{¶24} “Where a trial court denies a continuance in a criminal trial and, as a
consequence, defense counsel refuses to participate in the trial for fear that the
defendant would receive ineffective assistance of counsel and that counsel would be in violation of DR 6-101(A)(2) and 7-101(A)(3), the court may commit error under the
circumstances of the particular case in finding defense counsel in contempt and in
imposing a fine.” In re Sherlock, supra, at paragraph two of the syllabus. “Defense
counsel should not be required to violate his duty to his client as the price of avoiding punishment for contempt.” Id. at paragraph three of the syllabus.

Brian Jones is a hero, for standing up for his client and not giving in to the pressures of a system geared to strip our client's rights from them. Even though his case was a simple assault in a municipal court (note - in South Carolina we don't even provide attorneys for defendants charged in the municipal or magistrate courts), he refused to allow the court to brush aside the Constitution in favor of judicial economy.

{¶29} Under these circumstances, effective assistance and ethical compliance were impossible as appellant was not permitted sufficient time to conduct a satisfactory investigation as required by Disciplinary Rules 6-101 and 7-101 of the Code of Professional Responsibility, Rule 1.1 of the Ohio Rules of Professional Conduct, and the Sixth Amendment of the United States Constitution. It would have been unethical for appellant to proceed with trial as any attempt at rendering effective assistance would have been futile. Appellant properly refused to put his client’s constitutional rights at risk by proceeding to trial unprepared.

{¶30} “The rights of indigent defendants to appointment and effective assistance
of counsel are neither lofty philosophical ideals nor rights that only function to give us all faith in the criminal justice system. *** The rights to appointment of counsel and to
effective assistance ultimately impact not only whether people are convicted of crimes based on fair processes but moreover, whether innocent people are convicted of crimes they did not commit. These are both outcomes whose probabilities should be reduced whenever and however feasible.” Note, The Paper Tiger of Gideon v. Wainwright and
the Evisceration of the Right to Appointment of Legal counsel for Indigent Defendants (2005), 3 Cardozo Pub.L., Policy & EthicsJ. 495, 500. (Footnote omitted.)

{¶31} The rights guaranteed to citizens under the Constitution are clearly
defined and include the right to effective and competent assistance of counsel, the right to subpoena witnesses, the right to confront one’s accusers and above all a right to a fair trial. Counsel must be given ample opportunity to prepare, investigate and discover the facts of the accusation. Furthermore, counsel must have time to investigate witness testimony, the nature of the allegations, and develop possible defenses in order to
properly represent his or her client and provide effective assistance. The right to a
speedy trial is a right both constitutional and statutory which inures to the defendant not the court.

{¶32} By denying appellant’s motion for a continuance, Judge Plough improperly
placed an administrative objective of controlling the court’s docket above its supervisory imperative of facilitating effective, prepared representation and a fair trial.

The Court in this opinion has also laid out the reasons why public defenders everywhere need to insist on the funding necessary to provide an effective defense to their indigent clients, and stop making excuses and making do with what they are given by their legislatures.

December 30, 2008

The following statement from Bar President Flo Vinson was released on Monday, December 29:

The Bar is deeply distressed over the announcement of the suspension of payment of legal fees to court-appointed attorneys in non-capital cases. Prior to this latest announcement, the General Assembly had failed to appropriate any recurring funding for cases involving abuse and neglect of children; the elderly and the vulnerable; termination of parental rights; appointments of guardians ad litem; and other matters heard in family courts across the state. The recently announced elimination of funds to provide representation for many of those accused of crimes further undermines the ability to protect the constitutional rights of our citizens. The Bar is appreciative of the efforts made to sustain the statewide public defender offices, but more resources must be made available and court appointments without compensation must cease.

South Carolina currently ranks 43rd out of 50 states in public defense spending. Public defense is a constitutional right and in many instances a legislative mandate, not a discretionary program. It is extremely disheartening to see that the resources for those seeking due process and competent representation are being compromised, rather than protected. Providing for the protection of constitutional rights through financial resources and personnel is the responsibility of the legislative and executive branches. The State's obligation should not continue to be borne by a small number of private citizens - the legal profession.

When the state does not appropriate funds to pay appointed attorneys, the appointed attorneys should refuse to work for free. The hardship that non-payment causes on the private attorney inevitably translates into ineffective assistance of counsel and a denial of the defendant's Sixth Amendment rights. Private attorneys who have businesses to run, bills to pay, and employee's paychecks to sign each week cannot bear the costs of indigent defense in this state. If the state wants to prosecute people, the state must bear the cost of their defense, indeed they are mandated to do so by the Constitution.

An example of the dilemma that refusing to fund appointed counsel creates is this: in a recent murder prosecution, I invested approximately 300 hours in the case, all of which was reasonable and necessary to provide an effective defense, through the trial - which resulted in a hung jury. In addition to the hours that I put into the case thus far, my paralegal has worked tirelessly on the defense and I will not be compensated for her time, an associate in my firm has donated over 100 hours and we will not be compensated for her time, and I paid a law clerk out of my pocket without asking for compensation. We essentially shut down the office for a total of three weeks before and during the trial, during which time we lost potential clients and we were not working on paying clients' cases. We still have to try this case again, and it is not the only case that we have been appointed to.

I'll go beyond the need for appointed lawyers to refuse cases in the face of insufficient funding, however. The public defenders and others charged with the defense of indigents in our state need to accept responsibility for ensuring that we are complying with the Sixth Amendment and providing effective representation.

Defense attorneys, public defenders included, have a duty to investigate each case fully, not to recommend a guilty plea to a client unless investigation and study of the case has been completed, and to maintain a manageable caseload so that our duty to each client can be fulfilled. From the ABA standards; Defense Function:

Standard 4-4.1 Duty to Investigate (a) Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to defense counsel of facts constituting guilt or the accused's stated desire to plead guilty.

Standard 4-6.1 Duty to Explore Disposition Without Trial
(b) Defense counsel may engage in plea discussions with the prosecutor. Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial.

Standard 4-1.3 Delays; Punctuality; Workload
(e) Defense counsel should not carry a workload that, by reason of its excessive size, interferes with the rendering of quality representation, endangers the client's interest in the speedy disposition of charges, or may lead to the breach of professional obligations. Defense counsel should not accept employment for the purpose of delaying trial.

Professor Monroe Freedman, in his article, An Ethical Manifesto for Public Defenders, also suggests that public defenders have a duty to refuse cases when the attorney's caseload causes an inability to devote sufficient time to each case:

First, a lawyer who is assigned to represent a client in a criminal case, and who is unable to give competent and unconflicted representation to that client, is ethically required to decline the representation.

Second, if the lawyer’s supervisor nevertheless orders her to take the case, the supervisor has committed a serious ethical violation, and the lawyer has an ethical obligation to report the supervisor’s unethical conduct to the appropriate disciplinary authority.

Third, the lawyer may be required under rules of the court, and therefore under ethical rules, to obtain permission of the court to decline the assignment. However, it would be an ethical violation for a judge to order the lawyer to undertake a case in which the lawyer would necessarily be violating both the Sixth Amendment and fundamental ethical rules relating to competent representation. The lawyer would therefore be required to report the judge’s unethical conduct to the appropriate judicial disciplinary authority.

Fourth, the lawyer would be required to put on the record in the case the fact that, because of commitments to other clients, the lawyer cannot give competent, conflict-free representation to the new client. This would establish a violation of the Sixth Amendment, because the entry of a guilty plea is a critical stage, regardless of whether the charge is a felony or a misdemeanor.

Fifth, the lawyer would be required to inform the client of any plea offer from the prosecutor. However, the lawyer would also be required to inform the client that her representation of the client cannot be performed competently and, specifically, that she does not know enough about the case to give the client any legal advice. Further, she would be forbidden to advise the client to accept the plea offer.

Sixth, if the client chose to accept the plea offer, the lawyer would be required to put on the record that she has not advised the client with regard to the plea because to do so would violate her ethical obligations of competent and conflict-free representation.

What would be accomplished if public defenders and other court appointed lawyers did these things? They would establish compelling records of the extent to which the constitutional promise of Gideon is being broken. They would give individual clients grounds to attack their sentences directly and collaterally. They would establish the basis for class actions on behalf of their clients and other defendants who have similarly been denied the right to counsel. They would provide the news media with dramatic source material for informing the public about the failures of the administration of criminal justice. And they would make it more difficult for society and for the established bar to continue to deny due process.

The reality of Freedman's suggestions are: the public defender may be fired if he refuses to accept cases, and certainly if he files a grievance on his boss; and that attorney would have an even more difficult time if he files a grievance on the judge. Despite the obstacles, it is my opinion that the public defender should do what is necessary to preserve the Constitution and best serve their clients. If every public defender joined in demanding change, then change will happen. It takes the first to make a stand before others will follow.

Your job is to fight for the preservation of the Sixth Amendment for your clients. What is that job worth if you have to trample the Sixth Amendment in order to keep it?

Related posts:
Indigent defense - what can be done
S.C. indigent defenders have dropped the ball
Indigent defense - SCCID suspends payments to Rule 608 appointed lawyers
No funding for indigent defense?

Indigent defense funding is not discretionary, to be set aside when times are hard economically - if there is no funding for indigent defense, there can be no prosecutions. South Carolina is not alone in funding problems, and our public defenders can learn from what other defenders have done and are doing around the country, in defiance of the politics that govern them.

A recent article in the New York Times noted that:

Public defenders’ offices in at least seven states are refusing to take on new cases or have sued to limit them, citing overwhelming workloads that they say undermine the constitutional right to counsel for the poor.

Public defenders are notoriously overworked, and their turnover is high and their pay low. But now, in the most open revolt by public defenders in memory, many of the government-appointed lawyers say that state budget cuts and rising caseloads have pushed them to the breaking point. . . .

“Right now a lot of public defenders are starting to stand up and say, ‘No more: We can’t ethically handle this many cases,’ ” said David J. Carroll, director of research for the National Legal Aid and Defender Association.

The public defender's office in Miami Dade County obtained a ruling from a judge that they could refuse to represent those defendants charged with lesser felonies, in an attempt to provide an effective defense to those charged with the more serious crimes.

In Kentucky the state public advocate has sued for the right to turn down cases that defenders could not ethically take on. (Why sue for permission to do something that is already constitutionally and ethically required?) In Missouri, public defenders have begun to refuse to accept misdemeanor cases that would not result in incarceration, and public defenders in Tennessee, Minnesota, Maryland, and Arizona have either filed lawsuits or begun to turn down cases.

I agree with Andrew Perlman at Legal Ethics Forum, who has said:

It's nice to see the issue getting some high profile media attention, but I fear that the problem will only get resolved if public defenders stop taking cases that they don't have enough time or resources to handle ethically. Unless the system comes to a halt, it seems unlikely to me that state legislatures will make this issue a priority.

Santa Barbara, California public defenders are beginning to refuse cases. In 2005, appointed attorneys in Massachusetts refused to accept cases following an announcement that the Committee for Public Counsel Services (CPCS) had run out of money due to budget cuts:

Lawyers in Taunton District Court who represent indigent defendants joined a grass roots labor strike yesterday, refusing to accept new cases until the state pays them.

Of the 160 private lawyers in Bristol County who accept court-appointed
clients, more than a third informed the state committee that hires them
that they will no longer take cases, said Gerlinde Lowe, an administrator
for the Committee for Public Counsel Services.

"I'm not going to work for nothing," said city attorney Thomas E. Workman
Jr.

Workman said CPCS posted a letter on July 18 announcing it had run out of
money because of Gov. Mitt Romney's budget cuts, and would no longer accept
their bills. In response, lawyers in New Bedford, Wareham, Dudley and now
Taunton are refusing to accept court-appointed cases, he said.

So, what can be done? First of all, appointed counsel should refuse to accept cases until funding is made available. If it can be done without prejudice to the client, appointed counsel should refuse to work on current appointed cases, and file motions asking the court to halt prosecutions and release these individuals from jail until funding becomes available. Beyond this, public defenders need to step up to the plate and demand that they be given the means to provide an effective defense for their clients, even if this means refusing to accept new cases once their workload has grown past ethical limits.

Related posts:
S.C. indigent defenders have dropped the ball
Indigent defense - SCCID suspends payments to Rule 608 appointed lawyers
No funding for indigent defense?

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 SCCID has conveniently laid the burden of demanding funding from the legislature on the shoulders of the private bar. The Commission has not said if or when they will resume payments to appointed attorneys, only that there is no funding, they will review the policy after 90 days, and that payments would be made if funds are available in the future.

The issue here is not that private appointed attorneys will lose money on these cases. The issue is the effect that the attorney's loss will have on his appointed clients. The problem is that, if indigent defense is not funded, then indigent clients will not receive effective assistance of counsel. Unlike public defenders, prosecutors, or judges, private attorneys have businesses to run, bills to pay, and mouths to feed. Time spent on appointed cases is time that is not spent on paying cases, and when attorneys have to make a choice between working on an appointed client's case for free, or taking on a paying case that will pay the rent and the light bill, who is going to lose?

By forcing any attorney to work without any compensation on an appointed case, an unavoidable conflict of interest is created which will result in ineffective assistance of counsel. The private bar, I hope, will fight for relief for the indigent clients that have been foisted on them. But the responsibility lies with our state's indigent defenders, who are failing miserably.

Why stop payment of Rule 608 vouchers, rather than say to the legislature, look - you have to fund indigent defense, if you don't you will not only not have appointed attorneys but you will not have public defenders? The Commission should have continued to disburse funds where they are needed, until the funds are gone, at which point the legislature will have no choice but to take action. These are not discretionary funds that can be done away with when times are tough economically. The criminal justice system cannot operate without funding for indigent defense. By putting the burden on the private bar's shoulders, you are avoiding the showdown that needs to happen to make this point to the legislature and the public.

I can only assume that our public defenders and members of the Commission are not taking on this fight because they are daunted by the politics involved. The (justified) fear is that, if I am a rank and file public defender and I refuse to take on new cases, I will be fired. If I am a circuit defender and I refuse to take on cases, I will also lose my job. Anyone who dares to speak out about the necessity of satisfying the Sixth Amendment and Gideon and providing effective counsel to indigents will suffer political fallout. But - this is a fight that the people charged with the responsibility of indigent defense should be taking on vigorously, politics or no.

We should be demanding not only payment for the private appointed attorneys, but public defenders should be refusing unethical case loads that prevent them from properly investigating and testing their cases. If you feel that you don't have time to meet with your client outside the presence of the solicitor or to contact potential witnesses in your case; if you are forcing clients to plead guilty because you know that you do not have time to prepare your case for trial, your case load is too high.

Public defenders should be insisting on sufficient office staff to provide an effective defense for indigents, and should be in a position to encourage their staff attorneys to take cases to trial, and train them as to how. If we are going to prosecute more and more people under an ever increasing number of criminal statutes with ever increasing penalties, we have to fund indigent defense accordingly - and we have to stop making excuses and stop settling for what passes for effective assistance of counsel in this state.

Related posts:
Indigent defense - SCCID suspends payments to Rule 608 appointed lawyers
No funding for indigent defense?

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:

§ 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.

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.