Comments on: What’s A Fair Rate for Court Appointed Counsel?

By: Deborah Sirotkin Butler

Deborah Sirotkin Butler — Thu, 18 Aug 2005 19:11:56 +0000

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.

By: Deborah Sirotkin Butler

Deborah Sirotkin Butler — Thu, 18 Aug 2005 19:07:20 +0000

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.

By: Aaron

Aaron — Wed, 01 Dec 2004 13:34:57 +0000

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.

By: Crime

Crime — Wed, 01 Dec 2004 09:42:02 +0000

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.

By: Carolyn Elefant

Carolyn Elefant — Tue, 30 Nov 2004 17:29:04 +0000

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.

By: Mike

Mike — Tue, 30 Nov 2004 12:16:28 +0000

$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?

By: f/k/a

f/k/a — Tue, 30 Nov 2004 11:06:26 +0000

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.

By: David Giacalone

David Giacalone — Tue, 30 Nov 2004 07:53:48 +0000

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).

By: David Giacalone

David Giacalone — Tue, 30 Nov 2004 07:38:29 +0000

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).