When the State Drops The Ball

6 May

I just received an update from my Young Lawyers Division – Iowa’s House has (apparently without much warning) approved a bill that drops the salary of lawyers doing criminal defense work for the state – from $60/hr to $25/hr. (See  SF 497).

For those unfamiliar with the legal system of America, the 6th Amendment states that criminal defendants (people accused of a crime) have the right to an attorney. 

You’ve heard the Miranda Rights given on TV – “You have the right to an attorney. If you cannot afford one, one will be provided for you.”  Good old Law & Order, coming through once again!

So, if you have the right to an attorney but a serious lack of money, who does this “providing of lawyers”? — In short, the state courts do.  

There are a whole series of lawyers who take on work from the state defending the accused criminals who cannot afford a lawyer on their own.  These lawyers are often young, self-employed, looking for experience, and desperate for money to pay the bills until they get a job with an official firm. 

It is with this understanding that the problem with the salary decrease become apparent.  These lawyers already have a hard time affording the legal costs at $60/hr.  

Last year, I worked with a Solo Practitioner doing this type of work for the state.  The costs (gas, printing, filing fees, travel costs, lost profits, etc.) for the lawyers are ridiculously high in comparison with the salary.  Even at $60/hr, it is a struggle to make more than they spend doing the job.

Of course, the courts also have a maximum on the number of hours you can claim in the end, and that standard was consistently far lower than the time actually spent preparing and defending the case.  So, that same $60 (or $25 at the new rate) actually spreads out over more than an hour. It all adds up to a pretty penny.

Lawyers were already vastly unhappy with the 60$ an hour salary, and there has been significant clamoring for a raise for some time.  Instead, the House has gone the opposite direction. 

As someone with experience in this type of law, let me say, $25/hr isn’t going to come even close to cutting it. There is no way that will pay for all the losses the lawyers experience in doing the work. 

Naturally, the first response for the lawyers would be to refuse this type of work in the future.

Ah, but here we have a more significant problem – at what point is the State interfering with the 6th Amendment rights and Due Process?  By decreasing the salary so much that no one can afford to take on the work, they have taken away the lawyers for the criminal defendants.

The future in this situation is easily predictable – this would go one of three ways.  Naturally, as lawyers stop taking on the work, there will eventually come a time where there are not enough lawyers to handle the work-load.  Now, 1) the state will have to raise the salary to entice lawyers back, making the new bill pointless;  2) the state will have to set aside the defendant’s right to an attorney and begin holding trials without lawyers present (setting a frightening precedent); or 3) the state will have to  drag things out until the 1-2 lawyers who do this out of their own kind hearts have time to show up.  

Why do we even have this right to due process and a lawyer in the first place? As I told my Business Law students recently, there is a significant risk inherent in the criminal law system. A state-based judge handling a case brought by a state-attorney in the name of the state/local police = a criminal trial.  And the only person in this system that doesn’t know what the rules are or how to adequately handle the process is the defendant who’s life, liberty, and money are on the line.  

How is that fair in any way, shape, or form? Even my ESL students knew this answer – It’s not.  It’s a breeding ground for bad trials and problem of bias and corruption.  Thus, the law gives the defendant the right to an attorney. The right to a trained legal expert who knows what’s going on and what is the best defense to give. The right to someone there on your side, making sure the system is as fair as it can be.

By risking the possibility that lawyers won’t take on this kind of work, the State is risking the fact that the system isn’t going to work anymore. No lawyers means no right to an attorney. No right to an attorney means that an unprepared defendant is facing down highly trained legal experts from the state in a state-based trial system. It’s a situation just asking for inefficiency and unfair decisions to abound.  

Lawyers aren’t asking the state to pay out a fortune for this type of work, but neither can they afford to do the work when it costs more than they make.  Especially, the young solo practitioners who traditionally take on this type of work. It simply isn’t feasible.  $400/hr is not necessary, but enough to cover costs is.  And $25/hr simply isn’t it.



One Response to “When the State Drops The Ball”

  1. Harold Delk May 6, 2015 at 3:17 pm #

    Or the state will simply order an attorney to represent at the $25/fee or be held in contempt if he or she refuses. Not at this paltry sum, but I have witnessed a Judge order a lawyer to continue representing a welfare client in a criminal case when she asked to be dismissed from the case. He left her no “wiggle room” either.

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