Fault Lines
21 May 2018

Bust Up the Lawyers’ Guild To Help Indigent Defendants

August 9, 2016 (Fault Lines) – One of those basic truths that even television basically gets right is that the legal system is adversarial. At its best, two sides argue their interpretations of the facts and law to a neutral judge or jury, which then, more or less, declares one side the winner. Hopefully the truth is uncovered by this adversarial advocacy, and justice is done by the neutral judge. At least that’s the theory.

This caricature is a little more complicated when it comes to criminal offenses. First of all, the prosecutor’s role as an advocate is tempered by the command to seek justice. Second, due process and the Constitution demand more when it is the State trying to take the life, liberty, or property of a citizen. Third, unlike in civil cases, there is usually a vast disparity in the resources available to the defendant and to the State.

Since Gideon v. Wainwright, the Sixth Amendment has been seen as a tool to help balance that disparity. In more serious types of cases, the State is obligated to provide the defendant with an attorney. This makes superficial sense. If we’re going to have an adversarial system, then we need advocates on both sides. A good criminal defense attorney will challenge the State’s case, hopefully ensuring that innocents avoid wrongful convictions.

But taxpayers and legislators generally do not see it that way. Rather, to them, Gideon looks like a make-work program for attorneys. They see, even with taxpayer provided attorneys, defendants regularly plead guilty. And that’s because, well, they are usually guilty. Even those times where a defendant is wrongly accused or convicted, it may simply have been due to a “loophole” rather than factual innocence. On top of all of that, criminal defense attorneys are routinely accused of ineffectiveness by their clients. That’s a lot of value the taxpayer sees right there.

To the folks paying the bill, it looks like taxpayers paying attorneys to perform low quality work for guilty defendants, who would be justly convicted even without the attorney. So, it looks like criminals get an attorney, instead of fixing the potholes in the roads from three winters ago.

Meanwhile, the criminal defense attorneys are complaining about their pay. So, the enterprising taxpayer reads that in Ohio, appointed criminal defense attorneys make $60 an hour in court. That doesn’t sound bad at all. That’s more than three times the median hourly wage. A quick back of the envelope calculation leads the taxpayer to conclude that criminal defense attorneys can work forty hours a week and make $125,000. Joe Q. Public is ready to take that “low paying job.”

But Joe Q. Public doesn’t realize that appointed lawyers are running a business. Lawyers, like other professionals, have to pay their own insurance, the employer’s social security contribution in addition to the employee’s share, rent, salaries, equipment rentals, interest, and so on. To the self-employed lawyer, a vacation is an opportunity to simultaneously lose money and spend money. Fun times.

So, that $125,000 gets spent quickly, before any profits are taken out. Plus, cash flow is often a problem, with a lot of bad weeks and a few really great weeks. There is no Porsche in the garage for these “six-figure lawyers.”

Those are all back end problems. Problems that the lawyers face, which are the kind taxpayers aren’t too keen to care about. But indigent defense faces that front end problem too—no one wants to pay for it at all. In some states, this problem is mitigated by having relatively well-staffed public defender offices.

In such offices, lawyers are essentially made employees, usually of the state, rather than independent contractors. Here, the thought is that by making lawyers employees you can spend less than $60 an hour for an employee’s salary and benefits, and in turn get better representation. And you can attract good lawyers who would rather be in court instead of running a law office. Of course, some of that cost savings gets eaten up when administrators are hired to supervise those lines attorneys.

But a public defender system still needs funding. Without it, there are no lawyers to take cases. Derwyn Burton, the New Orleans Chief Public Defender, faced this lack of funding head on, by refusing to play ball:

I chose to begin refusing cases after reading about Joseph Allen. Mr. Allen is a 32 year-old African-American new father who was arrested and held on a $1.7 million bond after shootings last November at Bunny Friend Park, here in New Orleans, left 17 people wounded.   He immediately asserted his innocence, but police said an eyewitness identified him as a shooter. Mr. Allen’s family hired a private lawyer who went to Houston and located the video footage of Mr. Allen shopping with his girlfriend at the very time of the shooting. The charges were dropped.

Reading about the Allen case, I realized my office could not guarantee the timely retrieval of this important evidence before it was erased or otherwise destroyed.  This would have left an innocent man to face trial for his life for what was labeled an act of “domestic terror” by the mayor of New Orleans.  I did not want my lawyers or my office complicit in that kind of injustice.

Despite his good intentions, the ACLU sued the Public Defender’s Office. It’s almost as if having a New York fundraiser to pay for the costs of suing the Public Defender is visually better than contributing those funds to public defense. But what good is a pressure group if you can’t even pressure a broke public defender’s office? Appearances must be maintained at an expensive banquet.

On the heels of the Burton’s decision, the Missouri Public Defender was forced to make a similar choice. His office was underfunded and unable to handle the caseloads. But Missouri has a quirky statute that permits the Public Defender to appoint private attorneys to fill in, whenever needed. As it happens, the Missouri Governor is an attorney. Conscripting the Governor into service was just too much for the Public Defender to pass up.

Fault Lines contributor Matt Brown took satisfaction in this move:

Furthermore, based on the claims Barrett sets forth in the letter, the governor really deserves to be forced to do some indigent defense, as he’s clearly hostile to the right to counsel for indigent defendants. It would be wonderful to teach him a lesson. After all, he vetoed a bill providing relief to the public defense system despite acknowledging its “significant stress,” cut its budget last year by $3.47 million, and restricted its budget by 8.5% this year without doing anything of the sort to his own budget. Forcing him to personally champion a right his actions suggest he abhors just feels right.

Nixon is exactly why we have the types of problems we do with indigent defense all over the county. He’s a politician, so why would he care about taking care of the people least likely to be allowed to vote? There’s no powerful lobby for criminal defendants. Instead, the smart move for a politician is to calm the frightened electorate by convicting more people faster and easier. Defunding indigent defense probably seems like a pretty good way to do that. It scores points for being fiscally conservative and tough on crime at the same time. It’s a winning combination for anyone hoping to appeal to the law and order crowd.

Making sure the Governor receives his just deserts at the hands of the Public Defender and at the expense of the client, is one way to make a message. Burton made a similar statement, but without using clients as a political football. Scott Greenfield is unwilling to blame either public defender, but I personally feel Burton is the only one that made the right call.

Ultimately, the lack of indigent defense is a problem in need of a solution. The ideal solution would be to make more money available. But States don’t get the benefit of having a central bank available to make money for them. And there’s a limit on the amount of taxes folks will pay before they move with their feet.

One solution is to dragoon lawyers into pro bono service. This is the tactic taken by the Missouri Public Defender and one that Scott appears to approve of using. It’s an odd idea though. Sure, some dentists, doctors, accountants, consultants, and tradesmen chose to occasionally give away their services for free, but the law does not Shanghai them into public service.

Cynically, such an effort by lawyers can be viewed as an effort to maintain the legal monopoly with as little outcry as possible. Sure, we make the costs of many goods and services more expensive, and you can’t generally afford us when you need us, but we’ll make sure some guilty guy has someone to hold his hand through getting sent away.

At the end of the day, we can look no further than ourselves to find the problem with indigent defense. There are more than enough lawyers to fulfill the need. The problem is that after all that law school debt and the cost of running a legal office, it’s hard to make it without charging high fees. Plus, there is a serious opportunity cost in taking low-paying legal jobs without benefits. If you focus on churning out $60 an hour cases, then you give up your ability to charge $200 an hour for probate work. And the federal government does small business no favors on top of it all.

The easiest solution would be to relax the authorized practice of law statutes. Paralegals receive a legal education at a fraction of the cost. With some additional training and oversight, paralegals could easily begin to handle low-level criminal matters and the types of matters legal aide lawyers handle. And they could do it far cheaper than a law school grad with a mountain of student loan debt could hope to provide. It’s already being done in Washington State, where the position of Limited License Legal Technician was created.

Already, in medicine, we’re seeing the rise of middle-level providers. Physician assistants and nurse practitioners are set to become major primary care providers. They are able to help with upset tummies and running noses effectively and at less cost than traditional medical doctors. Plus, in most states, medical doctors oversee a mid-level provider at least for some time, ensuring that the patients do not end up with substandard care.

There is no reason that lawyers cannot let a lower level practitioner into the party. The fact is lawyers are already not handling these types of matters; so, why not open it up to a properly trained and educated person that is willing to do so. Heck, it might even be a way for more people to move into the shrinking middle class.

It might hurt the sense of superiority some feel by being a lawyer—tough. If medical doctors can learn to embrace mid-level providers, then there is no reason we cannot do the same. And if we must feel superior, we can always make them wear powdered wigs.

23 Comments on this post.

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  • Alex Bunin
    9 August 2016 at 9:43 am - Reply

    No. When criminal defendants can be jailed, incur crippling fines and fees, lose the ability to work at skilled jobs, and be removed from the country (even if they are here legally) — upon conviction of a misdemeanor — now is not the time to lower the quality of legal representation. There are no “low level criminal matters.”

    • Andrew King
      9 August 2016 at 11:28 am - Reply

      Alex,

      I phrased it that way because it seems that states call things a variety of different things. In Ohio, the cut off for a misdemeanor is a term of imprisonment over one year. And then there are minor misdemeanors and traffic offense. All of those matters a typically handled by a municipal court, rather than the court that handles felonies.

      If a lawyer the first day after being sworn is considered competent to handle nearly any legal matter, then I see nothing wrong with properly trained and experienced paralegals handling matters.

      • Greg Prickett
        9 August 2016 at 8:36 pm - Reply

        In most counties in Texas, fresh out of law school lawyers aren’t eligible to be appointed to misdemeanor cases, much less felonies. For example, Harris County requires 2 cases tried to verdict. Tarrant County requires 5 jury trials in the past 10 years. Travis County, 2 jury trials.

        The qualifications for felony appointments is higher. I don’t see Texas lowering the standards for appointment.

  • Jay
    9 August 2016 at 10:14 am - Reply

    If there are crimes in Ohio so low level you don’t need a lawyer perhaps the solution is decriminalization, not another layer of state funded automatons shuffling paper and lives.

    • Andrew King
      9 August 2016 at 11:33 am - Reply

      Jay,

      A minor misdemeanor would result in a fine only–no jail. Marijuana possession, less than 100g, would be such an offense. Most of these folks don’t get representation, so a cheap paralegal would be a major improvement over nothing. I suspect that getting rid of minor misdemeanors and other low-level misdemeanors would bump things up rather than decriminalize those offenses.

  • jdgalt
    9 August 2016 at 10:15 am - Reply

    The reason most defendants plead, even with public defenders, is that public defenders are grossly underfunded. How about a law guaranteeing as much public money for the PD as the police and prosecution got to make their case against the same defendant?

    • Andrew King
      9 August 2016 at 11:33 am - Reply

      We had series of Supreme Court cases here over the guarantee of school funding. Ultimately, a guarantee is just a word on a paper.

  • Jeff Gamso
    9 August 2016 at 10:16 am - Reply

    As Alex says, those “low level criminal matters” aren’t things that can be sloughed off onto folks who are almost-as-good-as-second-rate-lawyers.

    The real problem is that we aren’t willing to make the investment because the indigent accused – let alone the indigent convicted – don’t have a really good, financially sound lobby.

    In fact, there’s no shortage of lawyers (at least in larger communities) willing to take those appointments. (However much the pay sucks, it’s better than no income – and many experienced lawyers take some appointed cases just because it’s the right thing to do.) The problem is that we provide those lawyers with inadequate resources and strong disincentives to doing the job right.

    Take those Ohio numbers.

    First, in many counties (maybe most – I haven’t looked at the charts lately) the in-court pay is well below $60/hour. That figure is a reimbursement rate established by the State Public Defender. Actual pay scales are set by each county.

    Second, nobody spends 40 hours a week in court on anything like a regular basis – no private defense lawyer, no public defender, no prosecutor, no judge. And out-of-court rates are routinely lower than in-court rates.

    Third, there are the fee caps. Misdemeanor – maybe $250 max. Depends on the county. Felonies? More. Still not enough. Go to trial? Sorry, you’re over the cap. Don’t get paid for that.

    Will honest lawyers who recognize their obligations to the client encourage trial anyway when it’s the right thing for the client? Yeah. Will they investigate as they should? Yeah. Will many cut corners? Sadly, yeah. And by the way, that investigation is likely to be without an investigator because . . . .

    The miracle is that indigent defense is as good as it is.

    And, by the way, paying the up-front costs of doing it right goes a long way to reducing the post-hoc costs – in cash and in ruined lives (which means more cash).

    Penny wise and pound foolish as they once said.

    • Andrew King
      9 August 2016 at 11:35 am - Reply

      Jeff,

      You are absolutely correct the numbers can be even worse than I presented them. I opted for simplicity and essentially picked the top number.

      Andrew

  • Peter Orlowicz
    9 August 2016 at 12:05 pm - Reply

    What you’re proposing is a huge leap from what Washington is doing with the LLLT program. LLLTs can’t represent people in court, and are limited to divorce, child custody, and other family law matters, not criminal work. I’ve heard representatives from the Washington Bar speak about the program, and neither criminal work nor in-court representation were discussed as being part of the long-term plan.

    Then again, if the government hires criminal-law LLLTs to prosecute those low-level offenses instead of full prosecutors, that would level the playing field a bit more for the average defendant and result in savings to the government, right?

    • Andrew King
      9 August 2016 at 7:14 pm - Reply

      I think that, yes, you’d get states to hire cheaper paralegals from the prosecution too.

  • Chris
    9 August 2016 at 12:11 pm - Reply

    A big problem is the unnecessary costs of college and degree programs. There are also low quality high cost law schools that prey on the “dreams” of people who cannot get into a good law school but are willing to pay big bucks.

    The college bubble, but generally the “generosity” of student aid and loan programs have contributing to sky rocketing education costs. Administrators and profs. make big bucks in cushy jobs, the value to students is questionable.

    So more affordable options in legal education. Loosen up the accreditation standards, and LET PEOPLE SIT FOR THE BAR more easily if they pass the moral/character fitness and professionalism exam. I’ve always thought that the future of legal education should be less class time (say two years) then a year of apprenticing with real practitioners, and you are good to sit for the bar.

    So the ABA is a big part of the problem. And yes the “guild” mentality in the legal profession. There was a time when you could just sit for the bar, I wouldn’t eliminate the requirement to spend some time actually studying and apprenticing for law, but it needs to be loosened, more accessible, and more affordable. Like it once was.

    So we can just deal with it. Then people can take cases for less money if they are less concerned about working off a massive student debt.

  • texan
    9 August 2016 at 12:57 pm - Reply

    One big problem is the inefficiency of the courts. In Texas, to reset a a hearing or trial the defendant, defense attorney and prosecutor have to show up, mill around with dozens of others just to get a paper signed setting the hearing five weeks in the future when it will be reset again. I estimate that each lawyer wastes two to three hours each time when travel and pulling files time is included. Using para professionals for something as routine as resetting a case would be much more efficient. Doing resets electronically would be even better and free up time to work other cases and speed the whole process.

    • Andrew King
      9 August 2016 at 7:18 pm - Reply

      Allowing paralegals to appear for status conferences, arraignments, and other procedural hearings seems like it should be an easy sell. But, then again, it would require lawyers to acknowledge not everything we do is complex and difficult.

  • SPM
    9 August 2016 at 1:36 pm - Reply

    At least one sentence in your post is incorrect; “Sure, some dentists, doctors, accountants, consultants, and tradesmen chose to occasionally give away their services for free, but the law does not Shanghai them into public service.” That is exactly what the law requires for physicians.

    Physicians are required by law – the EMTALA – to provide free care. For an emergency medicine physician, at least 30% of his time (and therefore his income) is spent providing the mandatory free care that is required by federal law. In the same way, consultants such as surgeons and cardiologists are required to provide free inpatient care under federal law. And unlike attorney’s, they can’t write off this “free care” on their taxes.

    The argument to support this “taking” is that this is a free choice; if you want to accept Medicare, you have to agree to provide care to anyone who walks in the (hospital) door, regardless of their ability to pay. One can equally point out that it is a free choice to seek admission to the Bar of any state. A lawyer is given a public franchise that allows her to earn an income from the operation of the courts. Therefore, it is not a great leap to decide that if you want the privilege of exclusive access to the courts, you have to provide a certain amount of free service in return.

    • Andrew King
      9 August 2016 at 6:53 pm - Reply

      This is an apples to oranges comparison.

      And my larger point is the restrictive privilege is unnecessary. The bar for entry in medicine has been lowered, so why not the law?

  • SPM
    9 August 2016 at 1:47 pm - Reply

    I will make a second point: there is an implicit assumption in some of the comments that a new law school graduate is immediately blessed with the ability to analyze and investigate a criminal case and effectively negotiate with a prosecuting attorney. I don’t believe that is part of the core curriculum or examined as part of the bar admission process.

    Sure, there are some cases where a defendant needs competent LEGAL advice to address such things as suppression issues, or other legal challenges to an indictment. An attorney is also certainly needed if the case is one of the rare ones that ends up in court.

    However, I would argue that there are at least an equal number of cases – probably more, in fact – where what the defendant needs most is a competent investigator. (As the example of Mr. Allen shows.) There are also cases where the defendant’s only hope is a great negotiator. I will avoid a Trump reference, but that might not be a newly graduated attorney. In fact, if my life was on the line, I would probably trust a former police sergeant to be the one negotiating with the prosecutor.

    In any effective system, work should be done by the most appropriate professional. Tracking down video is probably not the best use of a lawyer’s time. Or the person best qualified for the task. So the idea that what the “public defenders” need most is more hours for attorney’s can be a bit misleading. It is certainly a factor, but it might not be the most essential factor for providing a vigorous defense for most defendants.

    • Jeff Gamso
      9 August 2016 at 2:18 pm - Reply

      The baby lawyer ought to be required to intern before soloing. That’s not how it happens. We don’t improve things by having other sorts of newbies – with even less training/experience/theoretically-relevant education and credential – doing the solo work.

      As for the other part, yeah, the case may need a competent investigator. Or a great negotiator (though our best negotiating is the prosecutor’s knowing that a seasoned, competent, well-resourced attorney will litigate the hell out of the case if it doesn’t get settled – your ex-sergeant isn’t likely to be in a position to negotiate from strength).

      Anyway, who’s making the judgment about what this particular case needs most? The defendant? Our clients are not, as a general rule, known for their understanding of what will work most to resolve their legal disputes.

    • Andrew King
      9 August 2016 at 7:11 pm - Reply

      You, and to a lesser extent Jeff below, are making a normative evaluation. Sure we’d like experienced and competent people to handle legal matters. I was making a positive evaluation. Admission to the bar, with a sprinkling of Rules of Professional Conduct, says you get to handle whatever case you’d like and you can get paid for handling.

      If a paralegal attends a 2-3 year degree program and passes a test, then there would be no practical difference in the education and training. If it’s considered sufficient for a lawyer, I fail to see why it can’t be considered sufficient for a paralegal.In my ideal situation the paralegal program would be more practical like PA and CNP programs. An MSPAS is basically an abbreviated medical school education, lacking the first year and the internship.

      We call ourselves juris doctors, but let’s not kid ourselves; we’re really Masters-level professionals. Heck, much of the world allows folks practice law with a four-year degree (LL.B.). So, paralegals educated slightly less than use with a practical focus would be well suited to handle a variety of matters, particularly with supervision.

      We’re really over-valuing law school education here, I think.

      • Jeff Gamso
        9 August 2016 at 9:50 pm - Reply

        I think people should be allowed to hire non-lawyers to represent them (with caveats, but folks are allowed to be stupid) – though I think it’s almost certainly a godawful bad idea. But the remedy for bad lawyering isn’t setting up a system that encourages bad legal work by non-lawyers.

        Sure it’s a normative argument. Your claim is ultimately something like “Do a really good job but cheap job educating, training, and certifying a class of non=lawyers to do trivial legal stuff while we continue to do a shit-ass but expensive job of training and certifying lawyers. Then let those paralegals do work that the lawyers can’t afford and that’s really beneath them, anyhow.”

        Well, duh.

  • Wrongway
    10 August 2016 at 3:26 am - Reply

    Umm.. just a thought.. but what about the law students themselves ?
    all of this ethical pro-bono stuff could literally handled in school & if there was a requirement for them to actually get the butts into a court helping out the CDL agencies for the states before get their degrees.
    They could help with the resets, or the investigations, etc etc..
    Hell aren’t they basically paralegals by their 3rd year ??

    Sure its money that is a big problem for the appointed attorneys, but wouldn’t it also help to have some warm bodies just helping out??

    It’d be a win for the CDL as he could spread the scope of the focus on the cases needing a zealous representation, & then limit his time on the (for lack of a better word), trivial cases. And it’d be a win for the student as they’re gaining needed knowledge of the real world they’re about to enter. And it would allow you assholes to handle the stuff that’s ‘Complex & Difficult’.. (LOL)…

    Hell, a network could be setup between the universities to help with extra jurisdictional responsibilities.

    I don’t know about the finer details & how handling all of that would go down, but it’s ‘Complex & Difficult’.. (LOL)… so get it done..

    Just a Thought..

    Great Post Thought..

  • DaveL
    10 August 2016 at 6:49 pm - Reply

    Jay, you’re forgetting that “the prosecutor’s role as an advocate is tempered by the command to seek justice revenue.” Without the threat of criminal sanctions, what would they use to leverage plea bargains?

  • Bust Up The Prosecutor’s Guild To Help Society
    11 August 2016 at 9:21 am - Reply

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