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Court-appointed lawyers finally filing fee waivers

Virginia’s court-appointed criminal defense attorneys appear to be finally getting with the program.

They are filing their fee forms asking for a waiver of Virginia’s caps on court-appointed fees.

That’s a great relief to Betsy Wells Edwards of the Virginia Fair Trial Project, who helped coordinate the efforts of bar organizations to win limited relief last year from the cap state law places on the amount attorneys can be paid to represent indigent defendants.

The initial response was “disappointing” and “just terrible,” Edwards said. The General Assembly appropriated $8.2 million for the 2008 fiscal year for waivers to the caps, which remained at the same low level – $120 for a misdemeanor, $45 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 set at $90 an hour.

The legislation authorized attorneys to ask a judge for 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. It also allows an attorney to request an unlimited payment in cases that require an extraordinary amount of time and effort.

The Supreme Court of Virginia estimated that the $8.2 million would be enough for waivers in about a quarter of the cases.

To get the additional money, attorneys have to fill out a form that some of them found daunting and to be more particular about tracking and reporting the time they put in the case.

Proponents of the program expected few requests in the first quarter of the fiscal year because it applied only to charges filed after July 1, and the cases take at least weeks and often months to be concluded.

But in the second quarter, attorneys requested only 1,000 waivers covering a period in which attorneys were paid for representation on more than 56,000 charges. And in the first three quarters, the total payout for waivers was less than $900,000.
The General Assembly took note but did not give up completely on the program. It reduced the fiscal 2008 appropriation to $3.2 million and appropriated $4.2 million for fiscal 2009 and $6.2 million for fiscal 2010.

The most recent quarterly numbers show a substantial increase. The court received about as many vouchers and paid more, $965,888, in the fourth quarter than it did in the rest of the fiscal year.

Katya Herndon, a spokeswoman for the Supreme Court, said that upward trend appears to be carrying over to the first couple of months in the new fiscal year.

Kristie L. Kane, the Fredericksburg attorney who is president of the Virginia Association of Criminal Defense Lawyers, said, “People are understanding the process more so they’re willing to fill out the forms. … I know that people are just really excited about being able to be rewarded for their work.”

David J. Johnson, executive director of the Virginia Indigent Defense Commission, which regulates court-appointed attorneys in addition to supervising public defender offices, said the improved response is “a combination of an educational piece and a cultural change, but there have been a lot of educational efforts.… There appears to be a good understanding now.”
D. Gregory Carr, a criminal defense attorney based in Chesterfield County, said “I think the word is out effectively now. I don’t think the entire defense bar was onto it” when the program took effect.

Resentment over the extra paperwork, some initial inconsistency among judges in handling the waiver requests and early suggestions that there wouldn’t be nearly enough money to go around were deterrents as well.

Another major factor was the culture shift that Johnson alluded to. Few defense attorneys were accustomed to accounting for their time because most of them charge a flat fee for their retained clients and, with the caps representing barely an hour’s work for a misdemeanor and five hours work for most felonies, timekeeping was hardly an issue in court-appointed work.

That culture works against the eventual goal of eliminating the fee caps entirely, however, Edwards said.

Elimination of the caps by the General Assembly will come only when the legislature has some confidence in how much their removal will cost and can budget accordingly, she said. Documentation of the amount of time attorneys spend on their cases is essential for that to happen, she added.

Now that attorneys have “built up this confidence that the money is there and they’ll get paid,” it’s much more likely that the database can be developed, she said. “I don’t think there’s any going back now.”

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