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.