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Alabama Court Appointed Attorneys May Strike

by Carolyn Elefant on February 22, 2005 · 8 comments

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

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We’ve already had a lengthy discussion over the reasonableness of $30-$40/hour court appointed rates back here. Now, there’s an interesting development relating to court appointed rates out of Alabama as reported in  Lawyers for Poor Threaten Walkout, David Holden,  Huntsville Times (2/22/05).  According to the article, the state currently pays attorneys for indigent criminal clients $40/hour for work out of court and $60/hour for in court work.  But on February 1, 2005 an opinion by Attorney General Troy King said that payment or the lawyers’ overhead expenses is illegal.  Lawyers will not receive overhead expenses on requests made after the opinion issued.  Now, according the article, Alabama defense attorneys are deciding whether to strike (in which case, they will have David Giacalone to contend with!).

I’ve already said that fees of $40-$60 an hour aren’t inherently unreasonable – and that lawyers should try to develop a diverse portfolio of work to wean themselves from reliance on lower fees.  But I especially don’t agree with the idea of a separate overhead charge, if only because few attorneys track overhead closely enough to allow it to be allocated.  I see nothing wrong with repaying expenses incurred for investigation fees or even legal research like LEXIS – but it should be done on a cost basis and not as an added hourly charge.

  • Sterling DeRamus

    A comment from an Alabama lawyer. For the past several years Alabama judges have allowed attorneys to claim overhead as a legitimate expense. This has unfortunately caused some problems, a handful of attorneys have abused the system to rake in overhead that they did not justifiably need. The result was predictable – the state has now struck back. Most courts required an attorney to submit an affidavit that his expenses were $X; and thus his overhead rate was $X/2000. Anthing over $20/hour was looked at suspiciously. However, some courts simply allowed a blanket overhead charge of up to $35/hour. This resulted in lawyers abusing that system by simply setting up shop in those courts and not having any real overhead (well maybe a PO box). Then they attempted to claim all of their hours as “in court” and get effectively $95/hour. That was abuse, and I do not understand why the judges in that court allowed it to continue (they shall remain nameless).
    However, the problem is that the Attorney General’s opinion is wrong. The legislature in no way intended to eliminate the overhead payment – and most attorneys did not abuse the system. Most attorneys properly included their overhead and got a little extra on top of their regular pay. In my experience most attorneys claimed less than $15/hour in overhead. This made practicing criminal law attractive to many qualified attorneys and has generally upgraded the professionalism of the Alabama Criminal Defense Bar. The AG’s wrongheadedness will only cost the state more in appeals due to ineffective counsel. The overhead needs to come back in. There are moves in the legislature right now to do just that. The $40/60 split, while certainly not the worst in the nation, is simply insufficient to attract quality legal representation for indigents. We can and should do better.
    Sterling L. DeRamus

  • Sterling DeRamus

    A comment from an Alabama lawyer. For the past several years Alabama judges have allowed attorneys to claim overhead as a legitimate expense. This has unfortunately caused some problems, a handful of attorneys have abused the system to rake in overhead that they did not justifiably need. The result was predictable – the state has now struck back. Most courts required an attorney to submit an affidavit that his expenses were $X; and thus his overhead rate was $X/2000. Anthing over $20/hour was looked at suspiciously. However, some courts simply allowed a blanket overhead charge of up to $35/hour. This resulted in lawyers abusing that system by simply setting up shop in those courts and not having any real overhead (well maybe a PO box). Then they attempted to claim all of their hours as “in court” and get effectively $95/hour. That was abuse, and I do not understand why the judges in that court allowed it to continue (they shall remain nameless).
    However, the problem is that the Attorney General’s opinion is wrong. The legislature in no way intended to eliminate the overhead payment – and most attorneys did not abuse the system. Most attorneys properly included their overhead and got a little extra on top of their regular pay. In my experience most attorneys claimed less than $15/hour in overhead. This made practicing criminal law attractive to many qualified attorneys and has generally upgraded the professionalism of the Alabama Criminal Defense Bar. The AG’s wrongheadedness will only cost the state more in appeals due to ineffective counsel. The overhead needs to come back in. There are moves in the legislature right now to do just that. The $40/60 split, while certainly not the worst in the nation, is simply insufficient to attract quality legal representation for indigents. We can and should do better.
    Sterling L. DeRamus

  • Donna Thompson-Schneider

    We’re currently dealing with this issue in Wisconsin. Every other year at the end of the budget cycle, the pool of money allocated for assigned defense counsel dries up before the new appropriation kicks in July 1, which means that from about mid-March to July assigned counsel don’t get paid at all.
    I suspect Wisconsin is in the middle of the range for fees for appointed counsel (40 per hour in or out of court, 25 for travel time), but it clearly isn’t in step with market rates. Every budget cycle the SPD seeks an increase (this cycle they asked for $70/hour) but they never even get enough funding to cover the existing pool of money at the existing rate. There are also flat fee contracts available for misdemeanor cases, but the rate is simply ridiculous (215-255 per case).
    The situation in guardianship/protective placement and mental health committment cases is even more dire. Budget restraints in Milwaukee County lead to some payments of 50 bucks per case for annual placement reviews.
    As an attorney focusing my practice in these two areas it’s frustrating. SPD appointments still make up a good part of my practice, though I do have a number of private pay clients, and it’s disheartening to be in the trenches trying to give good representation to people for not a lot of money and to then be kicked while you’re down by not being paid the little money you are due for the work you do perform.

  • Donna Thompson-Schneider

    We’re currently dealing with this issue in Wisconsin. Every other year at the end of the budget cycle, the pool of money allocated for assigned defense counsel dries up before the new appropriation kicks in July 1, which means that from about mid-March to July assigned counsel don’t get paid at all.
    I suspect Wisconsin is in the middle of the range for fees for appointed counsel (40 per hour in or out of court, 25 for travel time), but it clearly isn’t in step with market rates. Every budget cycle the SPD seeks an increase (this cycle they asked for $70/hour) but they never even get enough funding to cover the existing pool of money at the existing rate. There are also flat fee contracts available for misdemeanor cases, but the rate is simply ridiculous (215-255 per case).
    The situation in guardianship/protective placement and mental health committment cases is even more dire. Budget restraints in Milwaukee County lead to some payments of 50 bucks per case for annual placement reviews.
    As an attorney focusing my practice in these two areas it’s frustrating. SPD appointments still make up a good part of my practice, though I do have a number of private pay clients, and it’s disheartening to be in the trenches trying to give good representation to people for not a lot of money and to then be kicked while you’re down by not being paid the little money you are due for the work you do perform.

  • Deborah Sirotkin Butler

    I have a friend who is a physician. He asked me if attorneys develop
    specialties, like doctors. I told him yes.
    He asked me if some lawyers represent children with mental illnesses.
    I told him yes.
    He said some doctors specialize in this practice also.
    (Reprint of relevant post from another list)
    Then he told me that any physician who specializes in mentally ill
    children must work full time for the government, as there are few
    mentally ill children who have either parents with financial means,
    credit cards to pay a doctor’s fee, nor do they have a checkbook and
    the authority to write checks. He told me that parents rarely have
    the resources to pay the enormous expenses required to care for a
    mentally ill child, perhaps one in a million parent can do that. He
    mused that once a parent has had their financial resources tapped
    out, how could they even contemplate hiring an attorney to fight for
    their child’s rights???
    Then he asked a question I could not answer:
    Does the state of Massachusetts really want a system where attorneys
    cannot specialize like doctors, where everyone is supposed to dabble
    in different areas of the law. Would you have open heart surgery
    from a doctor who is a podiatrist, and every once in a while does an
    open heart surgical procedure?
    Then he asked the question that will keep me awake at night:
    Is it possible that some members of the legislature hate mentally ill
    children? or do they just not have a clue how mean-spirited their
    policy is? Don’t they understand the effect it will have?
    As I thought about all the congratulatory back slapping and exchange
    of “This was never intended to be a full time job”, I wondered who
    could explain that to the parents of a mentally ill child, when the
    child was being forced to take medication that has the risk of
    permanently disabling the child, and turning the child into a
    vegetable, after years of expensive care that consumed all of the
    resources that the parents could muster, including selling their
    house to pay for medical treatment.
    I know that my state rep and senator care immensely for those who are
    poor and disadvantaged. I copied them on this email, so that they
    would see what some people are asking, when comments about “never
    intended to be a full time job” are made in the press. I know that
    they will be horrified to see the implications of policies that
    forbid true specialization which is customary in the other
    professions. Those who will suffer will be those who are unable to
    fend for themselves, the weakest members of our society. That just
    seems to be the real tragedy.

  • Deborah Sirotkin Butler

    I have a friend who is a physician. He asked me if attorneys develop
    specialties, like doctors. I told him yes.
    He asked me if some lawyers represent children with mental illnesses.
    I told him yes.
    He said some doctors specialize in this practice also.
    (Reprint of relevant post from another list)
    Then he told me that any physician who specializes in mentally ill
    children must work full time for the government, as there are few
    mentally ill children who have either parents with financial means,
    credit cards to pay a doctor’s fee, nor do they have a checkbook and
    the authority to write checks. He told me that parents rarely have
    the resources to pay the enormous expenses required to care for a
    mentally ill child, perhaps one in a million parent can do that. He
    mused that once a parent has had their financial resources tapped
    out, how could they even contemplate hiring an attorney to fight for
    their child’s rights???
    Then he asked a question I could not answer:
    Does the state of Massachusetts really want a system where attorneys
    cannot specialize like doctors, where everyone is supposed to dabble
    in different areas of the law. Would you have open heart surgery
    from a doctor who is a podiatrist, and every once in a while does an
    open heart surgical procedure?
    Then he asked the question that will keep me awake at night:
    Is it possible that some members of the legislature hate mentally ill
    children? or do they just not have a clue how mean-spirited their
    policy is? Don’t they understand the effect it will have?
    As I thought about all the congratulatory back slapping and exchange
    of “This was never intended to be a full time job”, I wondered who
    could explain that to the parents of a mentally ill child, when the
    child was being forced to take medication that has the risk of
    permanently disabling the child, and turning the child into a
    vegetable, after years of expensive care that consumed all of the
    resources that the parents could muster, including selling their
    house to pay for medical treatment.
    I know that my state rep and senator care immensely for those who are
    poor and disadvantaged. I copied them on this email, so that they
    would see what some people are asking, when comments about “never
    intended to be a full time job” are made in the press. I know that
    they will be horrified to see the implications of policies that
    forbid true specialization which is customary in the other
    professions. Those who will suffer will be those who are unable to
    fend for themselves, the weakest members of our society. That just
    seems to be the real tragedy.

  • Steven

    My wife was brought up on charges in Chambers county Alabama, which was 3 felonies for signing and cashing her husband at the times (still living together)payroll check and writing 2 personal checks from his account totaling $35 pay in mind they have a 3 year old son together and while he was working she needed the money so the three year old could eat, there was nothing at home to eat! And she had cashed his checks many times with his permission and with no problems, Until the day she decides to leave him B/C of him being abusive thats when he brings up these charges about a month later out of anger just to hurt her, But the thing we have a problem with is this, she was appointed a lawyer by the court b/c theres no way we could afford a lawyer otherwise. Her lawyer was able to get the charges dropped down to misdemeanors, which meant around $500+ in court fines and fees and 12 months probation well that was fine better than expected, But we knew there was going to be a lawyers fee add so we paid on the fine and payed on the fine until there was only $100 left to pay and 4 months probation left, Then it happened (court appointed lawyer fees) was added to her probation fine which was expected but not the amount charged by her lawyer which was a $1000.00 I know what your probably thinking (thats not to bad) but it really is considering our lawyer did nothing to earn that kind of money we provided all the evidence we even had to find out when our court date was our selves because she wouldn’t contact us or return any messages we left for her, all she had to do was show up for court and present our evidence we provided, also we only had to appear in court twice and in my opinion this is highway robbery and now we only have 4 months to pay this ridicules amount before its a violation of probation. I just don’t see how she can charge that much money for a job not so well done. I would really like to hear what you or anybody else thinks about this and if its really a fair price for an appointed lawyer b/c I really don’t.Also is there a way to counter sue her ex for these rediculess charges he brought up on her that has cost us out the yin yang for something she had his permission to do in the first place. Thank You

  • Steven

    My wife was brought up on charges in Chambers county Alabama, which was 3 felonies for signing and cashing her husband at the times (still living together)payroll check and writing 2 personal checks from his account totaling $35 pay in mind they have a 3 year old son together and while he was working she needed the money so the three year old could eat, there was nothing at home to eat! And she had cashed his checks many times with his permission and with no problems, Until the day she decides to leave him B/C of him being abusive thats when he brings up these charges about a month later out of anger just to hurt her, But the thing we have a problem with is this, she was appointed a lawyer by the court b/c theres no way we could afford a lawyer otherwise. Her lawyer was able to get the charges dropped down to misdemeanors, which meant around $500+ in court fines and fees and 12 months probation well that was fine better than expected, But we knew there was going to be a lawyers fee add so we paid on the fine and payed on the fine until there was only $100 left to pay and 4 months probation left, Then it happened (court appointed lawyer fees) was added to her probation fine which was expected but not the amount charged by her lawyer which was a $1000.00 I know what your probably thinking (thats not to bad) but it really is considering our lawyer did nothing to earn that kind of money we provided all the evidence we even had to find out when our court date was our selves because she wouldn’t contact us or return any messages we left for her, all she had to do was show up for court and present our evidence we provided, also we only had to appear in court twice and in my opinion this is highway robbery and now we only have 4 months to pay this ridicules amount before its a violation of probation. I just don’t see how she can charge that much money for a job not so well done. I would really like to hear what you or anybody else thinks about this and if its really a fair price for an appointed lawyer b/c I really don’t.Also is there a way to counter sue her ex for these rediculess charges he brought up on her that has cost us out the yin yang for something she had his permission to do in the first place. Thank You

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