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March 15, 2013
Legislature takes up conflict counsel fees

By Jan Pudlow
Senior Editor

A slide flashed on the screen, showing senators that the statutory maximum fees paid to conflict attorneys, with the exception of capital cases, have not gone up since 1981.

Thirty-two years ago, by statute, a maximum of $3,000 was paid to a private lawyer who accepted a life felony case represented at trial, when the public defender had a conflict.

Ditto for right now — when private attorneys are appointed to represent indigent clients when both the Office of the Public Defender and Office of Criminal Conflict and Civil Regional Counsel have conflicts.

“It makes no sense,” said one senator.

“I’m embarrassed,” said another.

Susan Dawson, a senior attorney with the Office of the State Courts Administrator who recently completed a report asked for by the Legislature, put up another slide: The flat fee for life felonies currently pays $2,500 ­— even less than the statutory limits set out in F.S. §27.5304(5).

And OSCA’s report recommends that $2,500 be doubled to $5,000.

“Let me interject right here,” said Sen. Rob Bradley, R-Orange Park, who chairs the Senate Criminal and Civil Justice Appropriations Committee.

“Members, I think she just hit on why this is on the agenda. I used to be a criminal prosecutor. My firm has an attorney who practices criminal defense law. There are attorneys on this committee. And it makes no sense that we would have a system set up whereby someone would be paid $2,500 to represent somebody who is facing a life felony.

“And that needs to be rectified. That’s why I put this on the agenda, and it’s a priority of mine to address that this year, and I hope it’s a priority of the committee.”

“Absolutely,” chimed in Vice Chair Arthenia Joyner, a Democratic senator and lawyer from Tampa.

Later in the February 20 meeting, Joyner said: “I am happy to see, Mr. Chair, that you are concerned about this. I have been concerned for 13 years when I first brought it up, but it didn’t get anywhere. . . .

“The lawyers in the community do come and say, ‘This is ridiculous.’ And I agree with them.

“It ends up being maybe $5 an hour, depending on the length of the case. . . . Everyone knows this is less than the $9 an hour that’s been proposed we increase the minimum wage to, and people worked hard and long to get this degree,” Joyner said.

“I know we have a lot of priorities, but you kind of pay for what you get. And we want people to have good lawyers representing them.”

Todd Doss, a Winter Springs criminal defense attorney representing the Florida Association of Criminal Defense Lawyers, testified that standing in the courtroom and watching some conflict attorneys willing to take the low fees without adequate experience “is like watching a train wreck.”

“I can tell you, as someone who has been an active practitioner and involved in state and federal court, I’ve watched the appointed client basically suffer from a deteriorating quality of representation over the years,” Doss said.

“When I first started over 20 years ago, there were some really good lawyers taking these cases. Now, some lawyers are still good that are taking the cases. But many are just desperate and they are taking anything that will come in.”

Doss said he took himself off the conflict list in 2005, “because frankly it was a drain. It’s the equivalent of taking it pro bono, and I decided if I was going to take a case pro bono, then I would choose to take it pro bono up front.”

Sen. Alan Hays, R-Umatilla, a dentist, said: “These current flat fees, candidly, I’m embarrassed by them. You mention the poor representation that some of the defendants have gotten. As a steward of the tax dollars, I don’t feel comfortable paying for poor representation . . . . I’m truly concerned about us paying just any person who says, ‘Yeah, I’ll take the case.’ And they are not going to be good advocates for that particular case. Is there some way we can tie the payment to performance?”

Doss answered that should be addressed on the front end. Currently employed as an assistant federal defender, Doss said it “takes a lot to get on the list for federal appointments. There’s a vetting process that you have to have proper qualifications to be able to handle a certain level of cases.”

Similarly, Doss said, each circuit in state court should have a vetting process to make sure registry attorneys are qualified, and update the list every year, because “maybe someone who was a good lawyer at one time is not providing service now.”

Joyner said a vetting process in place in Hillsborough County for who gets on the registry list is working well, and she wants to make sure the fees are raised for juvenile and misdemeanor cases, too.

Bradley told Joyner her concerns were “well-taken,” but this year the focus is on boosting the fees for the serious felonies. The OSCA study surveyed private criminal defense attorneys, and 85 percent said they charge more than $10,000 for a life felony.

State Courts Administrator Lisa Goodner identified the top priority as adjusting upward the fees for capital, first-degree murder, life felony, capital sexual battery, and RICO cases, which tend to involve more complex legal and factual issues. They were the cases that most often are paid over the flat fee, and are driving the excess fee payments, she said.

“There is a question of whether people are trading volume for quality, but we really couldn’t get a handle on that,” Goodner said.

“That’s a very subjective judgment. So we just went with what we saw the market was bearing and tried to formulate what our priorities for legislative consideration would be. It’s a policy call on the Legislature’s part. And if you wanted us to work additionally on that with you [the less serious case types], we certainly would be happy to.”

To adopt the proposed upwardly adjusted flat fee schedule (see chart), Goodner said, would increase the amount needed at $3.1 million, for a total of nearly $16 million in FY 2013-14. However, it would decrease the amount paid over the flat fee by $1.1 million.

“So it would cost us $2 million?” Bradley asked.

“It would cost you $2 million more, but the other issue is the underfunding for the cases paid over the flat fee,” Goodner said, referring to cases that judges have determined deserve to be paid over the flat fee.

“In other words, if you have a ‘trial of the century,’ where you have 50 witnesses, and the case goes three weeks long, and a judge may say, even if we raise the flat fee, that isn’t fair to pay that attorney. Is that right?” Bradley asked.

“That’s correct,” Goodner responded. “The fees, as they were recommended, were conservative. We weren’t trying to get to every case paid over the flat fee, and our presumption was there still needs to be active judicial involvement in awarding some of the fees that were over the flat fee amount.”

As Goodner explained, the way the law currently works, cases exceeding the flat fee would be paid from the Judicial Administrative Commission, from that $3 million, until that fund is exhausted. Then, the fees would be paid from $3.3 million in the courts’ budget.

“The way the current law is written, if that amount is exhausted, the courts would have to come up with additional funding from another source, like we’re doing this year,” Goodner said.

“Right now, we are paying from our due process funds to pay the excess fees, since the $3 million has been exhausted.”

When the Florida Innocence Commission, appointed by the Supreme Court, met in May 2012, many members were shocked to hear details of how poorly Florida funds conflict attorneys. (See June 15, 2012, Bar News: “The role money plays in wrongful convictions.”)

One court-appointed registry attorney testified before the commission that he spent $26 an hour out of his own pocket to represent a client charged with murder.

Sen. Joe Negron, R-Palm City, chair of the Senate Appropriations Committee, said it’s one of his priorities to increase conflict attorney fees this session. (See February 15, 2013, Bar News: “Study suggests conflict attorneys are underpaid.”)

[Revised: 11-04-2014]