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The Defense Perspective

Some Lawyers Could Make More Money Flipping Burgers

Every now and then, there’s talk that maybe the Constitution should be amended to reflect changes that have occurred in the 220 years since it was written.  Maybe revise the 2nd Amendment to ban certain weapon, or the 4th to account for changes in technology, like GPS devices.

And maybe the 6th Amendment could be rewritten to state, “in all criminal prosecutions, the accused shall enjoy the right. . . to have the Assistance of Counsel for his defence, who is paid at least as much as the average McDonalds’ worker.”

About five years ago, a Cleveland lawyer was appointed to represent a defendant in a big retail theft ring case.  He spent sixteen months on the case, and five weeks in trial.  He submitted his bill, which would ordinarily have entitled him to $900, the maximum fee for appointed counsel in a first-degree felony case in this County.  (He should have gotten combat pay; halfway through trial, an entry notes that his client was remanded “to resolve health concerns” because “deft has active scabies.”)  His application for extraordinary fees, which would have allowed him to be paid $50 an hour for the 180 hours he put into the case, was turned down.  He wound up getting less than $5 an hour.  If he’d been an employee of the County, the County could have been federally prosecuted for paying him what it did.

This isn’t a new development; caps on counsel fees here were recently raised – back to what they were in 1978.  Nor a local one; someone sent me a chart with the assigned counsel fee rates for all 88 Ohio counties, and the maximum hourly fee anywhere was $60 for in-court.

To put it bluntly, that’s a travesty.  The combination of the low hourly fees and the low caps means that just about any time a lawyer takes a case to trial, he’s doing it for free.  That can’t help but affect his representation, how he presents a potential plea bargain to the client.

This isn’t a problem unique to Ohio.  In Philadelphia, for example, attorneys assigned to capital cases are paid a flat fee of $2,000, plus $400 for each full day of trial; the result is that only 30 lawyers in a city with 11,000 of them are willing to handle those cases.  But one of the differences is that attorneys in other states, like New York and Virginia, are doing something about it:  suing the state to get adequate funding for indigent defense.  And the courts are buying it:  the Kansas Supreme Court held that inadequate funding was a violation of the takings clause, explaining that, “we do not expect architects to design public buildings, engineers to design highways, dikes, and bridges, or physicians to treat the indigent without compensation. When attorneys' services are conscripted for the public good, such a taking is akin to the taking of food or clothing from a merchant or the taking of services from any other professional for the public good.”

That may be something the lawyers in Ohio should start thinking about.  Just saying.

Russ Bensing is a criminal defense attorney from Cleveland Ohio. You can find more of his work at The Briefcase.