Court Appointed Defense Lawyers Take Big Pay Cut

June 29, 2012

Anyone charged with a felony is entitled to be represented by a defense lawyer. Public Defender's Offices were created for that reason. However, when conflicts of interest arise in cases where multiple defendants are charged with criminal offenses, attorneys from the public defender's office can only represent one client. The question arises, who is going to represent the other clients who are indigent and cannot afford to retain private counsel? The State of Florida approximately five years ago created the Office of Regional Counsel. The creation of this office effectively did away with what used to be called "the wheel". "The wheel" consisted of a list of private Miami criminal defense lawyers that would be appointed cases that the public defender's office could not handle due to conflicts of interest. Budgetary constraints caused the Florida legislature to abandon the wheel and form the Offices of Regional Counsel.

"The wheel" in its past form no longer exists, but the courts still appoints cases in which both the public defender's offices and regional counsel both have conflicts of interest. The State of Florida has cut the rates for which the private lawyers can now bill the state to the extent that defendants are not receiving adequate representation. The fees are so paltry that defense lawyers who accept court appointed cases cannot effectively represent indigent defendants. A recent rule change has capped the fees to an even greater extent. It is understandable that the State of Florida needed to curb the growing expenses of legal fees, but not to the extent that the lawyers are not effectively representing their clients. For the fees being paid, the lawyers representing indigent clients cannot complete effective discovery in the cases prior to their resolution.

Attorneys around the community are making a stink that indigent clients cannot receive effective representation with the fees being they are being paid. One of the cornerstones of the Constitution provides that every defendant is entitled to effective legal representation. Effective representation means quality representation by qualified lawyers. Quality lawyers cannot afford to handles these cases for amount of time and effort to effectively defend them. If a lawyer decides to participate in the court-appointment process, economics dictates that the requisite amount of time required to provide a solid defense cannot be put into a case, thereby leading to ineffective assistance of counsel. Dozens and dozens of hours of work are put into a case before it is resolved. The discovery process, especially depositions, take hours of preparation and planning along with the time it takes to properly question witnesses.

The new rule change calls the pool of lawyers the "Limited Registry". The Florida Association of Criminal Defense Lawyers (FACDL) is challenging the new procedure for appointing lawyers to represent indigent clients. Many of the attorneys who used to represent clients on "the wheel" are no longer taking these cases because they can simply no longer afford to do so. Prior to the recent change, defense attorneys could bill a case for a flat fee, or by the hour if the cases were more complex and took significant time. All the cases are now paid by way of flat fee which cannot properly compensate those defending the cases. The flat fees vary depending on the severity of the offense. For example, an armed robbery case will pay more than a drug sale or drug possession case. Anyway you slice it, more and more attorneys will choose not to participate in the new program leaving a void in the number of lawyers ready, willing and able to defend indigent clients.

New Fee Rules Rile South Florida Defense Lawyers, Miami Herald.com, June 23, 2012.