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There for the asking…

More appointed lawyers seeking waivers, question remains if efforts will be enough

The money is there for the asking, and more court-appointed criminal defense attorneys are asking.

But are they asking soon enough to maintain credibility with the General Assembly?

After complaining for decades about the fee caps for court-appointed lawyers, proponents of eliminating them won what they thought was a significant victory in the 2007 legislative session.

The fee caps remained at the same low level – $120 for a misdemeanor, $445 for crimes punishable by up to 20 years in prison and $1,235 for crimes that carry a penalty of 20 years to life in prison – with compensation at the rate of $90 an hour.

But the legislation authorized attorneys to ask a judge for a limited waiver of the caps – up to $120 more for a misdemeanor, an extra $155 for a Class 3 through 6 felony and an additional $850 for a Class 2 offense.

The General Assembly appropriated $8.2 million for the waivers, which the Supreme Court of Virginia estimated would be enough for waivers in about a quarter of the cases.

To get that additional money, the attorneys have to fill out a slightly more complicated form and be more particular about tracking and reporting the time they put into a case.

Proponents of the proposal, such as Betsy Wells Edwards of the Virginia Fair Trial Project, emphasized that it is important for lawyers to report the hours accurately, even if they don’t get paid for all of them. That’s the only way that the legislature can get a good idea of what it will take to eliminate the caps altogether, she has said.

As would be expected, few attorneys sought waivers in the first quarter of the fiscal year because the legislation applied only to crimes committed after July 1.

But the Office of the Executive Secretary certainly expected more requests in the second quarter, and less than 1,000 waivers were sought during a quarter when court-appointed attorneys were paid for representation on more than 56,000 charges.

Twice as many requests for waivers, almost 2,000, were filed in the first quarter of this year, but the total payout for the first three quarters was less than $900,000. Even if the number of requests for waivers doubles again in this quarter, the court system probably will pay little more than a quarter of the amount that the legislature allocated for the fiscal year.

The system has rejected only 117 of the 3,071 requests for waivers processed in the first nine months.

“It’s a little slow, but it seems to be getting some momentum,” said David J. Johnson, executive director of the Indigent Defense Commission, which regulates court-appointed attorneys.

“The good news is that the pace has picked up, and more good news is that the money wasn’t eliminated,” he said. “The General Assembly recognizes the need even though the budget is getting tight.”

The legislature appropriated $4.2 million for the next fiscal year and $6.2 million for the following year.

Esther Windmueller, a criminal defense attorney and substitute judge in Richmond who frequently does court-appointed work, said the lack of response from her colleagues is “the confluence of a lot of different things.”

Some attorneys have taken the attitude that the extra paperwork isn’t worth it because of the early publicity that the money would be enough to pay for only a quarter of the hours that defense attorneys were expected to work beyond the cap, Windmueller said.

They miss the point, she said. “It’s not just about getting paid. It’s about collecting information” that can be used to get the caps eliminated.

Also, she said, lawyers take their cues from the judges, some of whom have been more reluctant than others to grant waivers. In Henrico County, for example, judges are “begging you to fill out the vouchers.”

On the other hand, general district judges in neighboring Chesterfield County denied her initial request for a waiver. When she complained, a judge told her, erroneously, that the waivers were to be granted only for exceptional circumstances.

And then there’s the culture of criminal defense work. Most private representation in criminal cases is on a flat-fee basis, and court-appointed attorneys have reached the fee cap so quickly that accurate timekeeping seldom has been an issue.

Windmueller said she’s aware of that thinking but considers it wrongheaded. She started as a public defender where “we always kept time.”

Moreover, she said, “documenting your work is always good practice.”

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