Understanding Court Appointed Attorneys’ Compensation

Court Appointed Attorneys Overview

Court appointed lawyers are attorneys assigned by a court to represent a defendant in criminal cases where the defendant cannot afford private legal representation. The appointment of a court lawyer ensures that an indigent defendant has the legal counsel to which he or she is entitled by law. Court appointed lawyers represent those who cannot afford the legal fees associated with hiring a defense attorney. The Sixth Amendment to the United States Constitution guarantees that defendants in criminal prosecutions are provided with legal counsel.
Across the country, the method for appointing defense attorneys varies from state to state. One common method for appointing a defense attorney is through what is called a public defender system. Under the public defender system, the court appoints an employee who works as a full-time or part-time public defender. In some jurisdictions, the jurisdiction may appoint the local public defender office to provide legal counsel, or assign the defendant to a private practice attorney who has been approved to join the panel of attorneys who take appointed cases. An indigent defense system is one in which an employed or contracted office of a state’s or county’s public defender is available to provide defense representation to indigents. Some states even have public defender providers that serve a particular geographic region of the state , county, or city. In counties or large cities, there may be multiple public defender offices providing representation to indigents. Judges also appoint private attorneys to represent indigent clients. In some cases, private attorneys can be appointed through the individual courts, and other times appointed may be handled through the public defender’s office. The amount that appointed attorneys receive for their work varies by state, and may depend on the type of case involved and the amount of work required. The typical hourly rate in most jurisdictions is in line with or slightly less than non-appointed private attorneys. Attorneys who accept appointed cases are typically provided a set fee for their work on a given case, which is based on set guidelines. Attorneys completing an appointed case within a set amount of time usually receive the flat fee. If the attorney needs more time to complete the case, the appointed fee may be adjusted. This flat fee concept may change depending on the particulars of a case.

Sources of Funding for Court Appointed Attorneys

Court appointed lawyers (also known as "contract lawyers") are lawyers who are paid by the state or federal government to represent criminal defendants who are accused of violating a criminal law or who have been found to be mentally incompetent to stand trial. They perform the same kinds of legal services that other, private lawyers provide, but they get paid from a different source.
Exactly where the money comes from and how much there is varies from jurisdiction to jurisdiction. In New York, the money for Public Defender Services comes from the Office of Court Administration (OCA). OCA gets its money from the state’s budget; however, once the funds are transferred to OCA, they are subject to reduction because they are contained in an [undetermined] statutory trust fund" and "could be used for other judicial purposes." New York County Court Appointed Counsel Plan, Brief 3.
In Georgia, funds for court appointed lawyers are provided by the Georgia Public Defender Standards Council, which is funded through a combination of state tax revenues and federal funds. Funding from the state tax revenues is "subject to annual appropriation by the General Assembly." Georgia’s system of representation for minority parents whose parental rights are being terminated is run by the Georgia Office of Child Advocate. Their funding comes from "state general funds, federal funds, private donations and grants." Georgia Court Appointed Youth Defender Program, Brief 6.
Federal funds for indigent defense are provided through the Criminal Justice Act, which applies primarily to federal criminal prosecutions. The funds were created in 1964 and are managed by the federal judiciary and only include compensation for lawyers who have been determined to be "excessive or unnecessary for providing adequate representation." Any money used for "extraordinary expenses" in capital cases is automatically done as long as the money has been duly authorized by a judge. The amount of excess compensation available under the act is annually set at $9 million (which is often not enough) but in recent years, Congress has allocated additional funding above the $9 million limit to meet the needs of these lawyers. Federal Court Appointed Attorneys, Briefs 6-7.
Regardless of where the money comes from, the amount that contract lawyers get paid is not typically based on an hourly rate, but rather on a flat fee for what is anticipated to be a reasonable amount of attorney time and work. In Franklin County, for example, it’s $80 per hour and $40 for time spent traveling-$80 an hour being the regular fee that private lawyers get paid for their work. Franklin County Court Appointed Counsel Plan, Brief 6.

How Court Appointed Attorneys are paid

In the vast majority of cases, the court appointed lawyer submits their fee request to the Court in the form of a motion. The motion details the compensation requested and the services performed. Parties receive notice of the motion and have an opportunity to object. In most family law cases, the Court will rule on the motion in conjunction with a further hearing on the matter. This is the more common method of compensating court appointed lawyers. In private (non-foster care) family law cases wherein one party was appointed for contempt proceedings – this process generally does not occur. Instead, requests for compensation are made verbally to the Court during a status conference or by a written request.
In typical adult criminal and juvenile delinquency proceedings, compensation orders generally are entered on a monthly basis. These orders reflect the amount of time the attorney expended on the case and the reasonable hourly rate of compensation. If, however, the court does not enter an order awarding compensation, the attorney must file a motion seeking compensation on a periodic basis. This is most clearly seen in juvenile delinquency matters, where there are no payment restrictions. Payments are generally made promptly when the payment request is approved.
For court appointed appellate counsel in non-capital criminal cases, that lawyer gets paid when and if the appeal is successful. That, however, is a complicated payment system that will be detailed in the Appellate Law Blog.

Rates and Fees Charged by Court Appointed Attorneys

The amount of money paid to court appointed lawyers varies widely by the type of case and the state where the case is pending. In some states, the courts appoint high volume private attorneys to criminal cases and pay them a low per case fee (for example, $500 per case). Some states pay appointed lawyers by the hour, and the hourly rate can be very low. For example, Louisiana currently pays CAV clients at the same rate as it pays private offenders. The current rate of pay is $30 per hour. Some jurisdictions in Illinois pay appointed attorneys $40 per hour for 200 hours per case, $30 per hour for 401 to 600 hours per case, and $10 per hour for 601 or more hours per case. This has created a situation in which some Wi-Fi corrections facilities charge lawyers the same rates, or even higher rates, than some municipalities do. In most cases, states have analogous compensation schemes in place for civil and criminal cases. If the state pays $30 to $40 per hour, the pay for a CAV may be the same, although that can vary from state to state, and from case to case.

Payment Issues for Court Appointed Attorneys

Getting paid in a timely manner can be an issue faced by many court appointed attorneys. The problem most likely stems from trying to discern when the case will actually close. Some clients will ask you to give them a call when you submit for an order to get paid. This proves extremely difficult when you rely on the court to approve the order and then release the money. Much like your client, the court is a busy place. You don’t always get a chance to speak to the judge who signed your order. If you try to wait for the next available hearing, this usually takes months. Many judges will not sign the order immediately. You may have to return to court to obtain your signature. Since you are so busy, it is difficult to take time off, particularly when your fees are more than $300 per hour.
Some other significant issues arise when court appointed lawyers are paid, including that the checks tend to be underpaid. This occurs because of two reasons. The first reason is that it can take a month if not longer for the court to issue payment. The second reason is that the court does not always take in to account the amount of time you spent on your case. It is fairly common for the court to focus on the amount of hours listed and ignore the amount charged. The county and state governments are in charge of writing checks. So they are not going to check your bills against the time. They are just going to focus on the bottom line, the amount you are going to get paid. This often seems to be a large number. However, when you look at the case and the number of hours it took, this should not be a surprise.
If you refuse to do the work, the court will most likely accept your fee request. However, you must make it clear to the court that you need the money or you will not be able to continue your representation . To make this process easier, you should apply for you fees and costs separately. That way you will be able to know right away if the court has approved your fees. Then you will know right away when you should stop working.
Another problem that courts face is that cases often lack the ability to pay a lawyer. Courts are sometimes limited in the funds they can expend on behalf of litigants. This can frequently be the result of the prosecutor’s office being extremely busy. It may take them 5 months or longer to get you paid. Sometimes simply getting a payment request submitted can take months, particularly for lawyers who practice criminal defense.
Just as lawyers have cash flow problems, so do courts. If the cash in the coffer is low, you may have to wait to be paid. This occurs in dependency and neglect cases all the time. The court has to have someone available to do the work in that particular court room. If the money is not there, staff can be reduced. Depending on the number of requests for funding, you may have to wait until the following month to be paid.
It sounds very simple, but you have to make sure that your bill goes to the correct person. Based on your work assignment, your bill can go to 2 different places. For cases where the state is responsible, you will send your bills to the OSPD office in your district. When it is a county responsible case, you have to apply to the court. The problem arises when there is no particular person within the OSPD office. You don’t want to have to send your bill to 200 different people. Try to manage who gets the bill and where it goes. However, you must make a copy of your bill. The additional copies should be filed with the court and/or with the OSPD office.

Attempts at Making Improvements: Reforms

Further reforms are needed to ensure that court appointed lawyers can be paid in a way that allows them to focus on their client and case. Possible improvements to the existing payment system include:
• Allowing lawyers to submit vouchers at the end of each month rather than the end of the case. This would allow lawyers to receive payments sooner, preventing a backlog of unpaid cases from building up like it does now. In addition, by bringing outstanding records of payments, lawyers and the courts could benefit from the increased efficiency of being able to see which cases have been billed and how much has been received.
• Measures to prevent the "clawback" of payments that exceed the hourly rate states should pay. The current system allows states to seek the return of some payments made if the payment exceeded the state’s hourly minimum. This currently happens in Georgia and will happen in New York. The practical effect is that state systems are paying less than the statutory rate, which will lead to lower quality representation – just as Congress anticipated.
• Allowing for a de minimis exception to limit the paperwork required by lawyers and to prevent lawyers from having to choose to get paid or represent the indigent client.
• Allowing for attorneys to be compensated for travel time and mileage so that the same lawyer can represent clients in multiple cities without being limited to parties in their immediate area.
It is critical to give court appointed lawyers the ability to ensure they can focus on the legal needs of their client, ad not their payment situation.

Conclusions and Future Implications

An attorney’s financial relationship with the state is something that most lawyers do not have to think about, if they give it any thought at all. Too often they fail to understand the strenuous efforts made by a small group of selfless advocates who are far too often overworked, under-paid, and unappreciated. We should be proud of the fact that dedicated members of our profession devote themselves to representing indigent defendants in our courts across the state. They are due a great debt of gratitude by all of us and are deserving of our respect, encouragement, and appreciation. We have seen remarkable improvements in the proper compensation for those who take on this heavy burden, in part due to the continued efforts of the commission . The members have plans and ideas now being implemented to ensure that the work of court-appointed attorneys continues to improve into the future. This includes recommendations to the legislature to devote more attention to the funding of indigent defense, to expand the utilization of private bar attorneys through the appointment of special counsel, and to consider alternative billing systems. Those goals are shared and supported by the Florida Bar which will continue to facilitate the work of the commission and assist in its objectives. These guardians of due process will keep fighting to improve our system and maintain our standards until we are assured that our indigent clients are provided the quality of representation they require, and we will be right there, shoulder to shoulder, as witnesses, advocates, and supporters of this worthy cause.