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What’s A Fair Rate for Court Appointed Counsel?

by Carolyn Elefant on November 30, 2004 · 9 comments

in Criminal Law, Practice & Policy, Setting and Collecting Fees

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Over at  David Giacalone’s web log, there’s more coverage of the situation with Massachusetts court appointed attorneys.  In case you missed David’s prior coverage (which he links back to extensively in his post), a group of Massachusetts court appointed criminal attorneys first initiated a boycott to protest $30/hr fees (now raised to $37.50) and now challenge a court ruling where judges are forcing the attorneys to take court appointed cases in light of shortages caused by low pay.  There’s also a rousing debate in the comment section where David asks what the appropriate market rate for court appointed service should be – and what kinds of overhead costs the rate should cover?

I wish that I could access my archives now, because I have always counselled against solo and small firm attorneys who try to make a living exclusively on low paying court appointed work.   One of David’s commentors calculates that $40/hour at 2000 hours a year comes to $80,000 total with two weeks of vacaation.  But there are also 10 federal holidays when the courts close, so you’re down to about $76,000 if you deduct 80 hours of time for that.   I think most others who do court appointed work have that calculation in mind as well.  But what they don’t realize is that of that amount, there are also expenses – a bare-bones minimum would encompass $2000/year for malpractice, $600-$1200/year for mail drop/virtual office (since criminal attorneys won’t want to use a home address even if working from home); $600/year for LEXIS or some kind of computerized research service, another $1000/year for Internet and phone service.  So now you’re down $4800 or to $71,000.  And that’s assuming there’s a spouse to cover health insurance; tack that on and you’re down another $3500/year or to $68,500.  And don’t forget bar dues, CLE and other licensing fees – another $1000 or down to $67,500.  Again, this assumes that you’re not repaying the costs of computer equipment or any other capital investment.  It assumes that you’re working from home and not renting office space.  It assumes that you don’t buy any office supplies, e.g., paper, postage, ink cartridges.  (I won’t even calculate the tax differences between a self-employed person who pays all withholdings and self-employment tax but will call it even w/business deductions).

So $66,500 pre-tax.  That doesn’t sound bad either for 40 hour work weeks.  Except, they’re not 40 hours.  There’s admin time to keep and send in vouchers and handle other tasks attendent to solo practice which can consume another 2 hours per day.  And that’s assuming that the court pays for every single hour you’ve worked – and doesn’t cap waiting time in court or other work that it considers excessive.   That could amount to a 5 percent deduction.

Which is still not an awful paycheck (until you add in what could be $10,000/year in student loan obligations – but those are not unique to court appointed attorneys). And indeed, it’s comparable to what many contract attorneys make, until you add in their overtime.   But it’s also a very difficult way to earn that kind of money – and it’s uncertain as well.  In D.C., the court would not pay court appointed counsel until a case was concluded, so you might be waiting 4 months for the case to cycle through and 8 weeks after for pay.   It’s those types of exingencies that lead court appointed attorneys to overbook, I think – which diminishes the quality of their work.

Frankly, I certainly can’t understand why solo and small firm attorneys would choose court appointed work as a business model when it would make more sense for attorneys to voluntarily cap their court appointed work (I’d say to 1/4 of their practice but even 1/2 could work) and spend the rest of the time looking for cases that could pay 5 times more.  And once you lock yourself into 40 hours a week at $40/hour, there’s very little time left to market and few resources to “play” with that might, for example, enable an attorney to take on a riskier contingency case with higher reward.

When I handled court appointed work in D.C., the rate was $50/hour
which I found to be quite reasonable.  It allowed me to be paid to
enter a different practice area and the money I generated, albeit not
more than $10,000 year was welcome.  But because my energy regulatory
practice paid three times what I made for criminal work, I never had to
rely on it as a sole source of income – and that made all the
difference in how I viewed the rate.

In any event, all of which is a very round-about way of concluding that $40/hr for court appointed counsel may not be as chintzy as it initially appears.  But, that figure only works for a shoe-string practice and on the assumption that every hour billed is collectable which it’s often not.  And of course, there are also regional variances – some costs, like malpractice insurance or virtual office space may differ depending upon where you’re located.  On the other hand, an hourly rate of $40/hour without any cap is far preferable to, say, capping cases at  $1500 or $2000.  Caps give attorneys too much incentive to scrimp to salvage a decent billing rate.

I’d love to hear what others have to say about this.

  • http://blogs.law.harvard.edu/ethicalesq David Giacalone

    Hello, Carolyn. I want to make clear for people who have not followed my weblog that my complaint is not that assigned counsel are being paid too much; in fact, I supported in print increases in such fees since my first week as a weblog editor. My compliant is that lawyers in private practice are competitors and they have no right to engage in coercive group boycotts to achieve higher pay, thereby violating the antitrust law and the Code of Ethics (obstructing judicial processes, injuring their clients’ interests, etc.). If the pay is not enough, they can individually decide not to participate.
    Here, they have brought courts to their knees through concerted refusals to take new cases. They created the current crisis, which has forced some courts to “draft” lawyers in order to assure representation for criminal defendants. Rather than wait for the Commission that is sitting now to make recommendations on the pay levels, the bar advocates are attempting to stifle the court’s emergency powers, which will again make the crisis even worse.
    With only a few months of serious lobbying, the Mass. bar advocates were able to achieve a 25% fee hike, but they deemed it to be insufficient and continued to jointly refuse to take new cases. This avarice and adolescent impatience is very likely to make their job of further educating the public and legislators and getting their support even harder.
    Like you, I do not think it is wise for a lawyer who wants to live a solid middle class existence to have an extremely large assigned counsel workload. As you know, I purposely limited my own solo practice for a number of years to assigned work for children as a Law Guardian –$25 out of court, $40 in court.
    As I suggest at my website, I do not believe the “market rate” for criminal defense services is the private attorney rate — as 80% of criminal defense is done at the assigned counsel or public defender pay scales. [If the defendants are truly indigent, there would be no market at all for indigent defense work if the State were not buying these services.] Furthermore, the relevant question for a lawyer who has “excess capacity” (spare time) — and purports to be taking the cases out of altruistic motives to serve the needy — should be whether the fee offered will cover marginal expenses, not total overhead.
    But, back to my core point: The state may be paying too little to assure quality service and sufficient lawyers over time, but it is still unethical and unseemly for officers of the court to respond with coercive joint boycotts. See FTC v. SUPERIOR COURT TRIAL LAWYERS ASSN., 493 U.S. 411 (1990).

  • http://blogs.law.harvard.edu/ethicalesq David Giacalone

    p.s. You suggest in this post that assigned counsel can’t or don’t work on their cases on court holidays. I sure hope you don’t believe all those studies that show assigned counsel doing inadequate amounts of out-of-court preparation. You’re going to give assigned counsel a bad name (even the solo ones).

  • http://blogs.law.harvard.edu/ethicalesq/2004/11/30#a2826 f/k/a

    in the ripples

    Carolyn Elefant asks “What’s a Fair Rate for Court-Appointed Counsel,” and “Would Biglaw Pay More to Help A Legal Aid or Solo Attorney?” We’ve left comments at MyShingle today in response.

  • Mike

    $2000/year for malpractice, $600-$1200/year for mail drop/virtual office [etc.]
    I am no expert in taxation, but I am studying for my corporation taxation final. Wouldn’t all those expenses you mention be business deductions?

  • http://67.225.230.212/~sh1ngl3 Carolyn Elefant

    David – I meant that since the courts are closed on federal holidays, court appointed attnys won’t be billing hours in court and might choose to take those days off. More likely, I’d guess that they’d be catching up on admin on those days rather than billable work.
    I’ve seen the recent reports about court appointed attnys in Virginia missing a large percentage of appellate deadlines, etc…But my experience with court appointed work in DC was that the majority of attnys whom I worked with did a good job in terms of prep and competence. I was very surprised by the quality of many of my colleagues, having heard the stories about lack of preparation, etc…Which I am sure does happen and I do believe the what I read; I’ve just been fortunate enough not to have seen it up close.

  • http://federalism.typepad.com/crime_federalism/2004/12/in_response_to_.html Crime

    The other side of the Massachusetts story

    [Editor’s note: In response to this post, where I was critical of the Massachusetts bar counsel boycott, Ms. Deborah Sirotkin Butler sent me this thoughtful response, which, with her permission, I post in full.

  • http://www.thestoppedclock.blogspot.com/ Aaron

    Mike, yes, they would be business deductions. So you would deduct them from your gross pay (based on the raw hourly rate) to determine your net pay (income after expenses). And then you would pay income taxes (and self-employment taxes) on your net pay.
    I guess there’s another way to look at the situation, which is that after an extraordinary period without a pay increase, and a concerted effort to obtain what the majority of appointed lawyers deemed to be reasonable wages, the state came back with an offer far below what the defense bar deemed reasonable, and many lawyers were sufficiently disgusted to resign from taking appointments. Granted, Mr. Giacalone’s blog suggests that there is some evidence of a boycott, but it isn’t as if all of this has occurred in a vacuum.

  • Deborah Sirotkin Butler

    I find the use of name calling like “avarice” and “adolescent impatience” to be beneath an attorney of your stated caliber and experience. This is the more egregious because you are tarring each and every attorney who lobbied, wrote to a legislator, donated time, or in any way was involved in seeking to support changes in indigent defense in Massachusetts. That is not discussion. That is not intelligent, that is name calling and it does not become you. Further, not every member of the Sixth Amendment Bar is a “bar advocate” – not all of those active ceased taking cases, nor is each attorney that does (or does not) take cases doing so for the same reasons. Two of those initially inolved in MACAA are now full professors, and have left the ranks of the Sixth Amendment Bar. As I take the time to listen to the many life stories of the folk involved, and the many different types of practices, the more I hear, the less “concerted effort” I can see. How many Massachusetts attorneys have you taken the time to speak with, Attorney Giacalone? Even one? Some are happy with what the legislature has done; quite a few, in fact. This is true, in part, because different areas of practice have been treated very differently. Those who do murder appeals are delighted with $100.00 an hour. Those who do parental termination cases are not equally pleased at $50.00 and the administrative caps you are not aware of in that area of practice. Even outside this, some are resigned. Some are hoping to change various other aspects, and the problem has not gone away. By “the problem”, I mean the fact that in American culture we are wiling to spend endless sums to lock up more citizens, per capita, then any other industrial nation but hate to pay for a fully functioning court sytem, or indigent defense (at least our various legislatures seem to hate to do so) – I gather that Alabama now has a crisis brewing as a result, or so I am told.

  • Deborah Sirotkin Butler

    Also, it was two and a half years – not “just a few months” and thousands of hours of volunteer effort.
    I find the use of name calling like “avarice” and “adolescent impatience” to be beneath an attorney of your stated caliber and experience. This is the more egregious because you are tarring each and every attorney who lobbied, wrote to a legislator, donated time, or in any way was involved in seeking to support changes in indigent defense in Massachusetts. That is not discussion. That is not intelligent, that is name calling and it does not become you. Further, not every member of the Sixth Amendment Bar is a “bar advocate” – not all of those active ceased taking cases, nor is each attorney that does (or does not) take cases doing so for the same reasons. Two of those initially inolved in MACAA are now full professors, and have left the ranks of the Sixth Amendment Bar. As I take the time to listen to the many life stories of the folk involved, and the many different types of practices, the more I hear, the less “concerted effort” I can see. How many Massachusetts attorneys have you taken the time to speak with, Attorney Giacalone? Even one? Some are happy with what the legislature has done; quite a few, in fact. This is true, in part, because different areas of practice have been treated very differently. Those who do murder appeals are delighted with $100.00 an hour. Those who do parental termination cases are not equally pleased at $50.00 and the administrative caps you are not aware of in that area of practice. Even outside this, some are resigned. Some are hoping to change various other aspects, and the problem has not gone away. By “the problem”, I mean the fact that in American culture we are wiling to spend endless sums to lock up more citizens, per capita, then any other industrial nation but hate to pay for a fully functioning court sytem, or indigent defense (at least our various legislatures seem to hate to do so) – I gather that Alabama now has a crisis brewing as a result, or so I am told.

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