Lawyers being forced to take criminal cases
Lawyers being forced to take criminal cases
One attorney pressed into service fears financial ruin
To 12th Circuit Chief Judge Lee Haworth, it’s a “perfect storm.”
The legal gale led to Haworth appointing a Manatee County attorney, against his will, to represent a defendant in a gang-related RICO case. The attorney, Gregory Hagopian, said taking the case is unfair to his other clients, could bankrupt him, and close his law practice.
Judge Haworth, in his order, declared the state law setting compensation for private conflict counsel unconstitutional and ordered the Justice Administrative Commission to pay Hagopian $110 an hour for his involuntary work, instead of the $75 set by state law.
But Hagopian, a sole practitioner who splits his practice between criminal defense and personal injury and is a former president of the Manatee County Bar Association, said that still might not save his practice. With amicus support from the Florida Association of Criminal Defense Lawyers, the Florida Association for Women Lawyers, and the Bar’s Criminal Law Section, he has appealed Judge Haworth’s order to the Second District Court of Appeal. The American Civil Liberties Union has filed its own amicus brief.
Although the JAC has not filed a brief in Hagopian’s case, it has filed a writ in another case where Haworth ordered attorney Joseph Campoli to represent another defendant and be paid $110 an hour. The JAC has contested the rate and also Haworth’s order that Campoli could collect interim payments before the case is finished.
That, too, is pending at the Second DCA.
“I’m not on the court appointment list. I haven’t signed a contract [with the state to do indigent conflict representation]. I haven’t asked to be a conflict counsel. I was shocked,” Hagopian said of his appointment last July. “I hope that this brings the issue to light so that the Legislature will reconsider and properly fund conflict attorneys and fund indigent representation.”
It’s also more personal than debating legal niceties for Hagopian.
“In order to effectively represent this person. . . I’d basically have to do nothing for the next year but represent this person against my will, and I choose not to,” he said. “To effectively represent him, I would have to basically shut down my practice.”
The case is attracting attention beyond and 12th Circuit and Second DCA, and some are saying it could be a harbinger for other parts of the state where PDs and criminal conflict and regional civil counsels may be overwhelmed with clients. (See sidebar story.)
At the Bar Criminal Law Section October 23 court funding budget summit, section Chair Donnie Murrell said of the cases, “It’s a perfect description of the financial disasters that are facing the criminal justice system if we don’t get some adequate financing.”
According to people involved in the Hagopian and Campoli cases and court documents, here’s what happened: The backdrop was set in 2007, when the Legislature passed SB 1088, which among other things cut the compensation for private attorneys who take criminal cases when public defenders have conflicts. Fees for first degree felonies were set at a flat $2,500, although if a judge found exceptional circumstances, the lawyer could be paid $75 an hour. Private attorneys were required to sign up for registries and sign contracts with the Justice Administrative Commission agreeing to abide by the fee limits. Interim billing was also banned; attorneys would not be paid until a case was complete, which was also when it would be determined whether the case was extraordinary and would qualify for the $75-per-hour rate.
The Legislature also created the five Criminal Conflict and Civil Regional Counsel offices to handle, among other things, conflict cases from public defenders. Those were expected to reduce by 80 percent the number of conflict cases going to private attorneys.
The net result is private attorneys left the conflict registries in droves. According to documents filed in the case, the number of conflict attorneys in the 10th Circuit dropped from 115 to 46, of which 35 are qualified to handle felonies. In Manatee County, the number went from 16 to five. Other jurisdictions experienced similar declines.
Then earlier this year, the Attorney General’s Office filed two gang-related RICO cases in Manatee County, the first involving 14 defendants and the second 12. That meant after the public defender took one defendant and the local CCCRC office took one, 12 private attorneys were needed in the first case and 10 in the second — and only five were available on the registry.
Or as Judge Haworth put it in an order in Hagopian’s case, “[T]here were more defendants than there were government or registry attorneys available to represent them.. . . What has developed in Manatee County is a perfect storm: Too few lawyers to provide services to clusters of defendants charged in gang-related cases. After appointment of the public defender, regional counsel, and the five remaining registry attorneys, the system breaks down when the number of attorneys needed to represent indigent co-defendants in Manatee County exceeds seven.”
What Judge Haworth did was first declare the fee limitations passed in 2007 unconstitutional, including the ban on interim payments and the $75 hour cap. Then he went looking for additional defense attorneys.
When he couldn’t find enough, Haworth created “an Involuntary Appointment List.”
“Attorneys placed on the Involuntary Appointment List by the Chief Judge were not vetted for experience, expertise, or with regard to whether the appointment would create a financial hardship. In fact, their particular competence or fitness to represent defendants charged with first degree felonies was not a consideration for eligibility,” the judge wrote in his order in Hagopian’s case. “Attorneys who limit their practice to traffic and misdemeanor matters and never tried a case to a jury were lumped together with lawyers experienced in the most complex criminal matters.”
As part of those appointments, Campoli was involuntarily appointed to represent a defendant in March; Hagopian was named to represent defendant Terry Green in July. He was actually the third lawyer appointed to Green; the first cited a lack of experience in withdrawing and the second no longer practiced criminal law.
Campoli represented his client, reaching a plea agreement, which will require more work by the attorney, in a little over 100 hours. But the JAC has refused Judge Haworth’s order to pay him and contested the $110 per hour fee. That has been appealed to the Second DCA.
Hagopian, on the other hand, has only done minimal work for Green and has tried to get out of his appointment. Judge Haworth denied his initial motion to withdraw and that has been appealed to the Second DCA, amid a flurry of amicus briefs and other filings.
“Judge Haworth’s actions have an absolutely chilling effect on the criminal defense community because he has the ability to arbitrarily shut down a person’s practice by being appointed to one of these cases, because you get nothing for it,” Hagopian said. “You have an inevitable conflict of interest with your client. That’s where the ACLU [in its amicus] is coming from, and I can absolutely understand that.”
But he added he does not blame the judge for the order, saying Haworth had to find counsel for the unrepresented defendants. Rather, the blame falls on the Legislature for not providing enough resources.
“The Legislature. . . isn’t [fully] funding representation of the indigent,” Hagopian said. “Nowhere in the Constitution does it say a local lawyer has to shut down their practice to make sure a person is represented properly. What it says is the government will provide you with an attorney free of charge, and that is not being done right now.”
The case, he said, will not require an inconsiderate amount of work. The indictment lists 382 witnesses, 167 police reports, and nine predicate acts leading up to the two RICO counts, Hagopian said. Some estimates are it will take around 500 hours to prepare for the case, and with other preparations and a multi-week trial, the total time could easily exceed 1,000 hours.
Campoli said he’s had double frustration. Even though he’s done most of the work needed to represent his client, the fee was much lower than he normally would be charged — and he hasn’t been paid.
In finding the compensation law unconstitutional, Haworth ordered that the involuntarily appointed attorneys could get interim payments for each 40 hours of work performed. That way, they wouldn’t have to wait months or even more than a year to get paid for being impressed on a case that could consume a considerable part of their professional lives.
“Whatever money I get paid in this case, it’s going to fall thousands and thousands short of what I should have,” Campoli said. “It’s a $300-an-hour case.. . . It’s a $50,000 to $60,000 case at the low end, and I know a number of attorneys who wouldn’t want to deal with it for less that $80,000 to $100,000.”
(In his order denying Hagopian’s attempt to withdraw, Judge Haworth noted that Hagopian testified he would have charged $100,000 for the case because of its major impact on his practice.)
Nonetheless, the JAC has denied Campoli’s interim request for almost $10,000 for his work. He noted that it’s likely to be next spring before all the work on the case is finished.
He does not blame either the judge or the JAC for his problems, saying they are limited by conditions or, in the JAC’s case, by the laws and budgets it operates under.
“Judge Haworth is in a very bad position. He’s got to get somebody on board [to represent the RICO defendants]. People deserve to have an attorney. It’s constitutional that people receive proper representation. The problem is when you force someone to take a case you don’t want, then pay me right, compensate me for taking a case that I don’t want to take,” Campoli said. “The problem is back it up with money. That’s my opinion.”
Judge Haworth, in his order keeping Hagopian as defendant Green’s attorney, summed up the difficulties. He noted that Hagopian’s overhead is $79.12 an hour, or $4.12 an hour less than the JAC allows for extraordinary cases — one of the reasons the judge cited for ordering $110-an-hour compensation and allowing interim payments.
“From Mr. Hagopian’s perspective, not only is he being forced to accept a blockbuster case that may cause him to lose new and existing paying clients, thereby raising the specter of insolvency, but from what he has heard about the operations of the JAC, beleaguered by budget cuts, staff reductions, and short funding of due process costs by the Legislature, he has little confidence that his invoices for services and costs will be promptly reviewed and approved. If he has to fight the state bureaucracy and suffer routine delays for payment, he fears he will not be able to maintain the $12,000 monthly income stream required just to keep his office doors open,” Judge Haworth wrote.
“These are legitimate and practical concerns. Yet the stark fact remains: Terry Green needs a lawyer and constitutional imperatives compel the judiciary to devise the means to acquire one for him.”
With both Hagopian’s and Campoli’s cases now on appeal, the paperwork is flowing into the Second DCA.
In Campoli’s case, the JAC Assistant General Counsel Christian Lake filed a certiorari petition saying the agency must follow state law, despite Haworth’s ruling on paying the attorney for his work. And that means no interim payments and no determination that the work was extraordinary until it is completed — and then payments must be no more than $75 per hour. That rate is more than conflict attorneys in the 12th Circuit got before the 2007 law was passed, he noted. The agency also argued that it may owe Campoli nothing, because he declined to sign a JAC contract.
That writ also noted that the agency, because of staff cutbacks, is not set up to handle billings at 40-hour intervals. The JAC asked that the compensation be limited to $75 per hour, that billing be no more than once every six months, and that Campoli not be paid until he signs a contract with the JAC.
Lake City attorney D. Todd Doss, who is representing Hagopian in his appeal, noted Hagopian has already lost business from the appointment because he has been out of the office working on the case when prospective clients called. Doss labeled the appointment as forced servitude and punitive, since not all lawyers are subject to the appointment.
He also said it created a conflict.
“Because competently representing Mr. Green is directly adverse to Hagopian’s economic well-being, every day he faces the Hobson’s choice of providing ineffective assistance of counsel or suffering financial ruin.. . , ” Doss wrote. “Forcing Hagopian to represent Mr. Green pursuant to the order creates an irreconcilable conflict of interest between attorney and client and will almost certainly give rise to claims by Mr. Green that he was denied his Sixth Amendment right to conflict-free counsel.”
He added: “This case is an abject example of the way in which the statutory fee structure has led to a crisis in indigent defense in Florida. The flat fees for court-appointed work have been lowered to such an extent, and the interim payments have been removed so as to make it virtually impossible for sole practitioners to take on court-appointed work where cases are likely to involve extensive representation. The result is the need for involuntary appointments in this case and others, which allow the state to escape its duty to fund the indigent defense system while coercing attorneys into resolving cases quickly so as to avoid financial ruin. The result is an inescapable conflict of interest.
“Mr. Green should not have to sacrifice his Sixth Amendment right to conflict-free counsel, and Hagopian should not have to face financial ruin to fulfill his ethical duties under The Florida Bar rules and the Constitution to offset budgetary deficiencies. If the government chooses to avail itself of complex RICO legal tools to prosecute crime, it must, quite simply, pick up the tab. If budgetary constraints prevent it from doing so, it should adjust its prosecutions accordingly.”
Gainesville attorney Sonya Rudenstine, who represents the Criminal Law Section, FACDL, and FAWL in their amicus brief, also cited the lack of government funding and the resulting problems. (Judicial members of the section’s executive council abstained from voting on the amicus issue, since it is a matter pending in the court system.)
“The broader problem, however, is that the government, by underfunding the indigent defendant system, effectively has required the courts to invoke their inherent authority to provide counsel for the accused in criminal cases by appointing a specific class of attorneys involuntarily. By design, the court’s solution to the impending crisis does not contemplate that the burden of indigent criminal defense will be borne, even in part, by civil attorneys in Florida,” Rudenstine wrote. “Although this focus on self-identified criminal defense attorneys is crafted to protect defendants’ right to effective assistance of counsel in criminal proceedings, Florida case law and the equal protection clause of the Fifth Amendment prohibit it.”
She also argued that, “By massively slashing funding for indigent defense, the government has abdicated its responsibilities under the Sixth Amendment. The courts should not be in the position of ‘enabling’ this failure by massing the burden to attorneys who may often be incapable of bearing it.. . . [T]he solution settled upon here is unjust. Not only does it unduly burden Mr. Hagopian with a responsibility that could place him at odds with his ethical and professional responsibilities, it stands as precedent for spreading that burden to others equally ill-equipped to bear it in the criminal defense bar, thereby sacrificing the constitutional rights of the defendants in the process.”
The ACLU of Florida, represented by Maria Kayanan, filed its brief without aligning itself with any party, but argued that Hagopian should be relieved of the representation because the most important concern is protecting defendant Green’s Sixth Amendment rights.
Kayanan noted the difficulties created for Hagopian by his involuntary appointment, including the conflict between his practice and exiting clients, and his duty to competently represent Green.
“This is undeniably an intolerable position for Mr. Hagopian. It is even more intolerable for Mr. Green; as this conflict swirls around him, he is denied his Sixth Amendment right to counsel,” Kayanan wrote. “.. . . Defendant is entitled to an attorney whose loyalties are undivided, who agrees to represent him, and who can provide effective representation at every crucial state in the proceedings. Instead, five months after Terry Green was indicted in this sprawling RICO prosecution, the third attorney considered for appointment is trying to free himself of being shackled to Defendant.”
She concluded: “This case represents the failure of what was once a functioning system for ensuring that indigent defendants did not surrender their Sixth Amendment rights to budget shortfalls. The ACLU urges this court to grant certiorari and provide clear guidance to the bench and bar regarding their respective obligations under the United States and Florida Constitutions. Should no willing counsel be found, then the charges against Defendant should be dismissed without prejudice.”