In Depth Look at the Law: The Judges' Dilemma: They Have to Meet the Constitutional Mandate of an Indigent Defendant's Right to Effective Assistance of Counsel

At this juncture, we've got lots of criminal defendants needing constitutionally-guaranteed representation, and an overwhelmed public defender's office as well as a beleaguered OCCCRC. So, who's next at bat? The private attorney licensed by the State of Florida.

Let's consider the complex criminal case. Major felonies, multiple defendants. Criminal cases that involve more than two indigent co-defendants (or any case where both the Public Defender and the OCCCRC both have a conflict of interest) are handled by private criminal defense attorneys, who are then paid by the government for their time and expenses. Chapter 2007-62, § 27.40(2)(a), Fla. Stat. (2007).

How Big Was the Loss of Attorneys Willing to Take Appointments after 2007? Huge. HUGE.

Earlier, we discussed how the 2007 revision to the appointment statutes caused many criminal defense attorneys to take their names off the county lists of attorneys voluntarily making themselves available for appointment. It was not because these attorneys didn't want to represent the poor people of Florida - the changes in the statute made it impossible for them to do so. Many defense attorneys simply could not afford to do the work and stay open for business.

One news report has shown that after the Legislature's action in 2007, the appointment list for the Tenth Judicial Circuit dropped sixty percent (60%), leaving just one (yes, 1) lawyer who was legally qualified to defend someone, as lead attorney, in a capital case. (Don't you know that is one busy lawyer?)

Practically speaking, in the criminal courtrooms of Florida, defendants continue to come before the bench and announce themselves as unable to pay for legal counsel on their own. According to Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 791 (1963) and its progeny, these folk are still deserving of legal assistance (the proverbial "effective assistance of counsel" under the 6th Amendment) and the government must provide them with an attorney. The judge has a legal duty he must meet.
Faced with Gideon, what are Florida Judges doing? Throwing attorneys under the bus sounds harsh, unless you're the attorney caught in the crossfire. Because that judge has to find an attorney somewhere, and the Legislature isn't giving that judge much of a choice.

What's to be done, when you are a judge facing a multiple defendant murder case and the demands of Gideon v. Wainwright? Well, if you're Circuit Judge Michael Hunter, setting in Polk County, you call over to your fellow judge in Hillsborough County and try and borrow a qualified lawyer. See if they'll travel over the county line and try and case or two. And maybe they will. If the travel's not too bad, and the county will cover the travel expenses, and his firm can handle the financial burden, maybe a dedicated defense attorney in the neighboring county will be available to help out.

It would be nice if the answer was as simple as "borrowing" from your neighbor. It's not. The other county may not have anyone to offer up.

The Involuntary Appointment List Begins Because Judges Need to Find Attorneys Somehow

Which leave judges frustrated and needing to move on their dockets. The judges' solution? They're just creating "involuntary appointments list" with all the local lawyers who hold themselves out as criminal defense attorneys being listed, A to Z. Then, the judges are making appointments from that list: picking names of attorneys at random, out of a hat as it were, with no consideration of the lawyer's finances, or more importantly for the client, the amount of his or her criminal defense experience.

In the short run, this is getting a lawyer with an indigent client. How well that client will be represented is at issue here, as is what the long term ramifications are to these members of the bar.

The Elephant in the Room: The Fifth Amendment Applies Here, Too.

Apparently, the crisis in counsel is so great that no one is looking much at the elephant in the room. Under the precedent long established by the Florida Supreme Court, even when the Sixth Amendment rights of criminal defendants to effective counsel are involved, the law does not allow unacceptably low, "token" compensation for these attorneys. And this is true when the attorneys have voluntarily undertaken the caseload, much less where they have been appointed via an Involuntary Appointment List. Makemson v. Bd. of Cty. Commissioners, 491 So. 2d 1109 (Fla. 1986); White v. Bd. of Cty. Commissioners, 537 So. 2d 1376 (Fla. 1989). It seems obvious that adequate compensation must be legally provided to attorneys who have been drafted into duty by frustrated judges.

Why? Aren't all lawyers rich? Easy answer is NO. And, even those who are successful won't stay successful long if they are involuntarily assigned to represent a defendant in a complex, time-consuming case essentially for free. There are so many hours in a day, and days in a week. If you're working on the appointment, you cannot be working on the case that generates revenue to pay the office salaries, the overhead, etc.

Kansas Supreme Court Gives the Answer the Legislature Doesn't Want to Hear: Pay the Lawyer or Dismiss the Defendant

Just as the Sixth Amendment protects the rights of the accused to legal representation, there are federal and state laws that protect the rights of the lawyer not to be forced out of business by involuntary servitude via judicial appointment. The truth is that these big appointments are the death's knell for many a criminal practice. And, according to the Kansas Supreme Court (which has already dealt with a lot of these same issues), the Fifth Amendment is violated when an attorney necessarily spending an "unreasonable" amount of time on indigent appointments in order to be effective is then caused a "genuine and substantial interference with his or her private practice[.]" State ex rel Stephen v. Smith, 747 P.2d 816, 835-36, 842 (Kansas 1987).

The Kansas Court succinctly identifies that elephant in the room: "[t]he obligation to provide counsel for indigent defendants is that of the State, not of the individual attorney". Id. at 850-51.

What if the money isn't there? Kansas answers: charges against indigent defendants must be dismissed if the government cannot provide adequate compensation to their attorneys.

What about those pro bono requirements?

Phooey. That dog won't hunt. The Florida Bar "suggests" 20 hours/year as charitable service for each attorney licensed in the state (Fla. Bar R. Prof. Cond. 4-6.1(b)). It's almost insulting to suggest that pro bono considerations should apply to the months of solid work that is required to effectively represent criminal defendants in major cases.

For over half a century now, there has been debate about whether or not attorneys are working as a profession or as a business. Clearly (look at the precedent dealing with lawyer advertising for details on this), it has been clearly established that law firms are run for profit, they are businesses, and there's nothing sinister or to be ashamed of because of this truth and fact. Pro bono work is a worthwhile activity. It is not meant to supplant the daily operations of the law firm.

Next week: The Ethical Duties of the Criminal Defense Attorney in Representing the Indigent

In Depth Look at the Law: Florida's System of Insuring Legal Representation for the Indigent Must Be Changed

In our new series, we'll be looking at Florida's indigent defense system, particularly as it applies to cases where capital punishment is being sought. How are attorneys chosen and compensated for representing the criminal defendant who is without funds to pay for his own defense, especially those facing the death penalty? How is Florida's current indigent defense system critically flawed?

The Florida Legislature Provides for Compensation of Attorneys Who Represent Poor (Indigent) Criminal Defendants in State Matters

First, let's review the action of the Florida Legislature in the past few years. Before the current system was put in place, Florida provided for indigent criminal defense through Chapter 27 of the Florida Statutes. There, a collection of private criminal defense attorneys offered themselves for appointment by the courts in the defense of impoverished defendants in criminal cases under Judicial Administrative Commission (JAC) contracts. The attorneys worked on behalf of their clients, who were entitled to representation by an attorney under the law. In return, these attorneys were compensated by the government.

The 2007 Changes by the Florida Legislature Made Appointments Financially Not Viable for Most Criminal Defense Attorneys

The Chapter 27 system was changed, however. Under the new statutes, Chapter 2007-62, Florida indigent criminal defense effectively discouraged attorneys from placing their names on the list for court appointments and JAC contracts. This occurred in several ways:

1. It set up a lower flat fee system, cutting the rates that had been established under the prior statute and ignoring how costly in time and money some of the criminal defense cases - even routine ones - can become for the defense lawyer.

2. In complex cases, it continued to allow an avenue for attorneys to apply for the right to bill real time at an hourly rate, but it did so in such a way that was complicated, time-intensive, and quite frankly, frustrating in its bureaucracy. (The attorney had to go through many more procedural hoops to get a case approved as "extraordinary and unusual," under what has become known as the "Makemson standard." Makemson v. Martin County, 491 So.2 1109 (Fla. 1986). )

3. It ended periodic billing. Under the old system, appointed attorneys could present invoices for payment by the government periodically (every six months) in those "extraordinary and unusual" cases, as the case went along (and sometimes, criminal cases can go on for years). The new system under 27.5304(3), Florida Statutes (2007), makes the appointed attorney wait until the end of the case before being paid anything - and before he can be sure that the case will indeed be approved as "extraordinary and unusual." Easy to see how an attorney might be wary at undertaking a complicated criminal defense matter when she could expect to invest time and money for years, only to end up being paid a low, flat rate and having to write off a significant amount of money from the books.

With this one alteration by the Florida Legislature (27.5304(3)), many excellent criminal defense attorneys were forced to take their names out of consideration for criminal appointments because they simply could not afford to essentially work for nothing on huge, time-consuming cases for months, and years, at a time. To do so would put them out of business.

As a result, judges had indigent criminal defendants in their courtrooms, and no criminal defense attorneys available to take the judicial appointment to represent the defendant. The defendant has a constitution right to counsel, and the judge had been placed in an untenable position by 27.5304(3), just as the criminal defense bar had been. What to do?

Next week, in part two of the series:
Involuntary appointments begin after criminal defense attorneys are forced to stop voluntarily taking on indigent defense cases, without consideration of the lawyer's budgetary needs (to pay salaries, expenses, etc.).

 
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