By Gary Blankenship
Four different ways of measuring fees paid to private criminal conflict counsel suggest those attorneys are massively underpaid when they take on state cases.
A study completed by the Office of the State Courts Administrator at the behest of the Legislature shows that those conflict counsel are typically paid a fraction of what most attorneys would charge private clients for similar work. It also found that in certain types of complex cases, attorneys routinely petition the courts to exceed the flat fees specified in state law.
At least one prominent lawmaker, Sen. Joe Negron, R-Palm City, chair of the Senate Appropriations Committee, agrees with those conclusions and says it’s time for the Legislature to increase those fees, which have not been raised for more than 30 years.
The study was done as part of the Legislature’s attempt to control rising expenditures for conflict counsel. As part of that effort, lawmakers last year established a new registry for private conflict attorneys. Unlike the older private last year established a new registry for private conflict attorneys. Unlike the older private registry, attorneys signing up for the new one must agree they will not petition the court for payment beyond the flat fee, regardless of how much time and effort the case takes.
(In practice, the Justice Administrative Commission, which oversees the payments to private attorneys, has not included the no-petition stricture in its contracts because of contradictory case law.)
Another part of the Legislature’s approved budget specified that it would not pay more than $3 million in the 2012-13 budget for private conflict counsel and after that amount, any additional payments would be taken from the operating budget of the state’s trial courts. According to the OSCA report, the $3 million mark was hit on January 7, with almost another six months to go in the fiscal year.
“The rates under the current schedule are clearly inadequate. It’s one of my priorities this session to address that issue and increase the amounts for those cases,” Negron said.
He’s already had discussions with Sen. Rob Bradley, R-Orange Park, who chairs the Senate Criminal and Civil Justice Appropriations Subcommittee, about increasing the conflict fees.
“We’re crunching the numbers and determining the best way to move forward. I think you’ll see a significant increase in that area,” Negron said. “It’s an important constitutional requirement in that a citizen of Florida charged with a crime has a zealous defense.”
Negron’s counterpart in the House, Rep. Seth McKeel, R-Lakeland, said the payment rates would be looked at.
“This is an important issue, but a complex one,” McKeel said. “I intend to evaluate it further as we progress in our budget development process.”
Last year’s changes to the conflict fees have prompted a spate of lawsuits (see story in the December 15 Bar News), claiming that judges have a conflict in handling excess fee petitions because the money could come out of their budgets and that the restrictions impair the effective assistance of counsel.
One fact noted in the study is that, except for fees in death penalty cases, the state has not raised the statutory minimum fees in criminal conflict cases since 1981. And since 2007, those fees — again, except in death penalty cases — have actually been set below those statutory minimums.
“I knew it was bad; I didn’t know the depths of how bad it was until I read that entire study,” said Derek Byrd, president of the Florida Association of Criminal Defense Lawyers.
“They haven’t raised the rates except in the capital case since 1981, and they believe the rates in 1981 were set relatively low.”
Byrd said the low fees raise constitutional questions about effective assistance of counsel, because lawyers may not be able to afford to give clients the attention they deserve for the payment by the state.
“It’s not any fault of the defendant that he gets conflicted out of the public defender’s office and gets conflicted out of the regional conflict counsel and winds up with an appointed counsel,” he said. “There’s no way that lawyer has any incentive to do any work. What they’re doing is they’re not, in my opinion, giving someone their constitutional right to counsel.”
Byrd isn’t alone in that sentiment. OSCA surveyed criminal defense attorneys on what they normally charge, as part of its study on the state’s fees.
According to one survey participant: “I won’t work for those fees. It is less than my overhead costs, and I have a low overhead practice. I have been a member of The Florida Bar for close to 40 years…. I would sooner represent the client pro bono or go fishing.”
Another observed: “The capped fees create a situation where the attorney would need such a great volume [of] cases, that he/she could not provide effective assistance to his/her client. Alternately, if he/she were to maintain a small volume of cases, in order to provide effective assistance, the attorney would net far less than minimum wage, after dividing the capped fee by the number of hours necessary to provide a real or even a minimal level of effective representation as required by the Constitution.”
The OSCA study noted that private attorneys are hired when public defenders and regional conflict counsels have a conflict of interest — typically in multi-defendant cases with three or more defendants. Fees for those attorneys were set in 1981 in F.S. §27.5304(5) (originally §925.036), and are $1,000 for misdemeanors and for representing juveniles at trial; $2,500 for noncapital, nonlife felonies; $3,000 for life felonies; and $2,000 for appeals. Capital cases were initially set at $3,500, but that amount was raised to $15,000 in 2007. The law also specified that the Legislature could set lower fees in annual budgets, which it has done since 2007.
In the current budget, the maximum fee is $400 for a misdemeanor, $2,500 for a life felony, $1,500 for a felony appeal, $1,500 for first degree felonies, $1,000 for second degree felonies, and $750 for third degree felonies. Fees for representing juveniles range between $300 and $700.
Those fees have not changed since set in 2007. That’s the year the Legislature created the Offices of Criminal Conflict and Civil Regional Counsel to handle initial conflicts from public defenders and which limited private counsel to cases in which both the public defender and regional counsel have a conflict.
As part of the report, OSCA surveyed private attorneys and found almost none charge private clients as little as provided under the state statutes. Surveys were sent to almost 3,000 lawyers and more than 350 responded.
One example: The state pays private criminal conflict attorneys a flat $2,000 for a felony that is punishable by life in prison, and $2,500 if the felony carries an automatic life sentence. A survey of private lawyers didn’t find any who charge that little for their private clients — or even twice that much.
Indeed, the survey found only 3 percent of those surveyed would handle that case for a flat fee of $5,001 to $7,500. Fully 84 percent would charge more than $10,000 for such cases.
It was almost the same for misdemeanor, second and third degree felony cases, appeals, juvenile, and death penalty cases, according to the survey.
On misdemeanors, none indicated they charge less than $500 (the state pays $400), and only 2.4 percent said they would charge less than $1,000 while almost 40 percent said they would charge $2,000 to $3,000. In juvenile cases (where the state pays $300 to $700), only 3.7 percent said they would charge between $500 and $1,000 and 70 percent said they would charge more than $2,000. For felony appeals, where the state pays $1,500, a few respondents said they would charge $1,500 to $3,000, while 70 percent said they would charge more than $6,000, and around 20 percent said they would charge $4,501 to $6,000.
The report noted that the Florida Supreme Court has held that the fees can be exceeded when justified. In Makemson v. Martin County, ), the court found “that the statutory maximum fees, as inflexibly imposed in cases involving unusual or extraordinary circumstances, interfere with the defendant’s Sixth Amendment right ‘to have the assistance of counsel for his defense.’ The statute, as applied to many of today’s cases, provides for only token compensation. The availability of effective counsel is therefore called into question in those cases when it is needed most.”
The report also included findings from the Florida Innocence Commission, which examined the causes of wrongful convictions and concluded, “that the current funding process for private court-appointed counsel . . . invites ineffective assistance of counsel and wrongful convictions.”
One attorney testified to the commission he spent 272 hours on a case and his state-paid fee amounted to $14 per hour.
In assessing the adequacy of the flat fees, OSCA’s study looked at three other factors besides its survey of private attorneys: the rate of inflation since 1981; the rise in median attorney income since 1981; and the number and types of cases when conflict attorneys apply to the courts for higher fees.
Using inflation, fees would have risen about two and a half times since 1981, the study noted, while median attorney pay has more than tripled during the same period. On claims for higher fees, OSCA noted it had studied that issue in 2010-11 and found “that excess fees were awarded primarily in cases involving capital cases; first and second degree murder, life felony, RICO cases, multiple defendants and charges, and complex legal and factual issues.” OSCA found that there were few requests for higher fees in juvenile delinquency cases.
In the first five months of the 2012-13 budget, the study found excess fees in capital cases totaled nearly $1.3 million: $478,097 for RICO cases and $819,099 for all other cases.
Susan Dawson, a senior attorney with OSCA who worked on the report, said now that the $3 million legislative appropriation has been exhausted, the Trial Court Budget Commission is working on a plan where further excess fees will come from the circuits in which those fees are generated.
The report concluded with a chart of how fees “could” be increased for cases that now experience the most claims for higher fees. That was based on the median of amounts that were awarded over the flat fee, with the highest 25 percent of those awards removed and the resulting fee cut by another 25 percent.
Under that calculation, fees for capital murder cases would go from $15,000 to $25,000, and cases for first degree murder without a death penalty would go from $2,500 to $9,000. Fees for life felonies would double from $2,500 to $5,000, and in RICO life felony cases, they would go from $2,500 to $9,000. Capital appeals would go from $2,000 to $4,000, capital sexual battery from $2,000 to $4,000, and first degree felony RICO cases from $1,500 to $5,000.
“This methodology produces very conservative proposed fees based on the actual data and recognizes that judges will continue to determine the appropriateness of attorney payments in excess of these fees,” the report said.
Dawson said those examples are not intended as a hard-and-fast recommendation.
“It’s more of a suggestion to the Legislature as sort of a starting point to work with,” she said.
“The report seems to illustrate there is justification for much higher fees, but given the budgetary circumstances, this is for illustrative purposes, and the Legislature could go from there.”