Charlottesville Daily Progress

Dead Last
Virginia's ranking among all 50 states for its compensation of court-appointed lawyers
By Liesel Nowak
Daily Progress staff writer
Sunday, May 28, 2006

When called on to help represent a man charged with first-degree murder, Adam Rhea made out better than many court-appointed attorneys in Virginia: He earned $14.83 an hour.

Charles L. Weber raked in a whopping $6.80 an hour on a recent murder case.

And before he became Albemarle County's commonwealth's attorney, Jim Camblos lost money nearly every time he had a jury trial as a court-appointed attorney.

Because Virginia has the dubious distinction of paying its appointed counsel the lowest fees in the nation, local lawyers often find themselves making less than minimum wage, paying overhead costs out of their own pockets and choosing to represent poor clients only because they love the law and they enjoy fighting for the underdog.

The state pays public defenders a maximum flat fee depending on the kind of case, no matter how many hours are needed to handle the work.

"I tend to think that there are a lot of attorneys in this who love the law," Rhea said of court-appointed work.

"Any time a case goes to trial, they're just going to take you to the cleaners," said Weber, a former naval aviator who became a lawyer in retirement. "I'm not out here to get rich. My kids are grown; I don't have college bills anymore. … I'd rather be in a courtroom."

Proponents of indigent defense say Virginia should not have to rely on the volunteer spirit of some attorneys in its justice system. And while the budget tug-of-war continues in Richmond and legislators remain preoccupied with looming issues such as transportation and education, court-appointed lawyers watch the drafting of another biennial budget that makes no real effort to fix what many consider a broken system.

Jim Hingeley is the public defender for the Albemarle-Charlottesville Public Defender Office and the chairman of the Virginia Indigent Defense Coalition, a grassroots organization attempting to educate regular people about the problems with the state's indigent defense system.

Hingeley agrees that the Charlottesville area is blessed with a hardworking and dedicated panel of attorneys willing to take on court-appointed work.

"But when we look at the whole system, it's not fair that people who can't afford a lawyer should have to depend on public-spirited lawyers to meet a constitutional obligation," Hingeley said. "We should have a system that meets that constitutional mandate without having to rely on volunteers."

In September, Rhea and Hingeley worked together to represent Joel Salinas, a Mexican immigrant accused of stabbing to death a rival during a fight. After the case went to trial in Charlottesville Circuit Court with a vigorous self-defense claim, a jury found Salinas - who was facing a first-degree murder charge and life in prison - guilty of second-degree murder and gave the man seven years behind bars.

In the end, Rhea was paid $1,186 for the 80 hours he spent on the case. In what is widely seen as a generous gesture, a judge granted Rhea another $800 for serving as an interpreter for his client.

Just because court-appointed attorneys are underfunded does not mean that they do not do good work, Rhea said.

"There are good court-appointed attorneys and there are bad ones," Rhea said, adding that most of the time in local courts, it's impossible to differentiate between a lawyer representing a fee-paying client or one who is indigent.

"If McDonald's all of a sudden stopped paying minimum wage, it wouldn't make all the hamburgers poisonous," he said.

Lowest limits in the U.S.

Virginia's court-appointed attorneys have been flipping burgers on the cheap for decades, but the state's longstanding reputation for insufficiently funding indigent defense was amplified in 2004 with a report from the American Bar Association declaring the commonwealth dead last in its compensation of court-appointed attorneys.

The state's limits on attorney's fees are the lowest in all 50 states, the report says, and Virginia joins Mississippi in being the only states with unwaiveable fee caps. Mississippi, however, entitles lawyers to an hourly rate for overhead expenses, according to the ABA.

In Virginia, court-appointed attorneys receive $112 for representing clients in misdemeanor and juvenile cases, $148 for misdemeanor appeals, $428 for lower-level felonies and $1,186 for felonies that can result in punishments of 20 years in prison or more.The ABA report found that Virginia's indigent defense system "puts lawyers at risk of violating professional rules of conduct when representing indigent defendants" and "substandard practice has become the accepted norm."

Though lawyers in Charlottesville insist the local bar maintains a high standard, the ABA report lists instances in which lawyers anonymously admit to giving inadequate representation to poor clients.

The system is flawed, Hingeley said, because it depends on lawyers doing equal work for unequal pay and the massive discrepancy between what lawyers receive to do court-appointed work and what they collect from paying clients creates an inherent conflict.

"It's the system that says we'll hold them together by depending on what is essentially a fiction," Hingeley said.

A lawyer from Newport News reported that he spent substantially more time looking for an issue that will benefit a retained client, and spent as little time as possible doing the same on a court-appointed case.

"If we want to make a living we have to get rid of the case as soon as possible," the lawyer told the ABA.

The report indicates that in many instances, court-appointed lawyers simply do not have the time to invest in the cases that aren't paying for their time and overhead, including rent, a secretary, legal insurance and continuing legal education costs, not to mention law school loans.

Often, court-appointed lawyers have little time to meet with their clients, and many cases result in plea bargains.

"Every time I had a jury [trial] I lost money," said Albemarle Commonwealth's Attorney Camblos, who worked as a defense lawyer for 15 years before becoming a prosecutor. "You only have so many hours in a day. It didn't pay when you got to be more seasoned."

Now on the other side of the courtroom, Camblos still recognizes the importance of fairly compensating defense work.

"We want the defendants to have the best representation possible," Camblos said. "We know that we have motivated attorneys and we know they'll do a good job. They should be fairly compensated for their time."

A moral obligation?

The Sixth Amendment of the U.S. Constitution provides all criminal defendants the right to counsel at trial, and the 1963 Supreme Court case Gideon vs. Wainwright establishes that having a lawyer is an essential requirement for a fair trial.

Providing adequate defense for the poor is a moral and constitutional obligation, indigent defense proponents say.

"It's a poverty issue. It's a justice issue. It goes back to our democratic system, in my opinion," said Betsy Wells Edwards, one of the state's leading advocates of indigent defense reform and director of the Virginia Indigent Defense Coalition. "It's, 'There but for the grace of God go I.'"

According to the Virginia Trial Lawyers Association, in most areas of the state, more than 75 percent of those charged with a crime are indigent.

Though most people never face criminal prosecution, the justice system can touch lives in unexpected ways, Hingeley said.

"They may never come into contact with the court system," he said, "but they may have a niece or a nephew who are in juvenile court or a neighbor … who is charged with a misdemeanor. These things happen to people. And it's not always as far away as you might think."

Earlier this year, a group of attorneys in Richmond announced that if the General Assembly did not act to improve the situation, it would sue the state, claiming that the unwaiveable fee caps are unconstitutional because judges have no discretion in removing them.

Some say that it is particularly disappointing that the home of so many prestigious law schools and Founding Fathers is also the home of a broken indigent defense system.

Camblos said the General Assembly should be embarrassed by the paltry funds set aside for indigent defense, asking, "How can we be proud of 50th out of 50?"

Politicians on both sides of the political spectrum agree that Virginia's financial support of court-appointed attorneys is embarrassing.

Legislative priorities

"It is, to a large extent, a money issue," Hingeley said.

The General Assembly, currently mired in a budget stalemate, considered a bill this year that would allow judges to waive the caps in the most serious felony cases.

With a vote of 98 to 0, House Bill 176, sponsored by Del. Lacey E. Putney I-Bedford, passed in the House of Delegates, but the Senate has passed the bill over to the 2007 session.

Del. Rob Bell, an Albemarle County Republican and a lawyer, abstained from voting on the issue, he said, in order to avoid an appearance of impropriety because he practices in court. Bell also serves on the Courts for Justice Committee and the Virginia State Crime Commission.

A former prosecutor, Bell said he, like most of his colleagues in Richmond, supports the idea of better reimbursement of court-appointed attorneys, but sees the issue as one the legislature has chosen "not to prioritize."

"It's not whether people think it's a good idea," Bell said. "The same is true when it comes to providing teaching assistance, paying deputies better, making Medicaid payments. … That's the nature of the budget process. It would be something good for Virginia to have."

The tabling of HB 176 is another setback for indigent defense proponents.

Before he left office, Gov. Mark R. Warner chose not to include in his budget proposal $25 million requested by the chief justice of the Supreme Court of Virginia and a $38 million request by the VIDC, the Virginia State Bar, the Virginia Bar Association and the Virginia Trial Lawyers Association in his proposed budget.

Indigent defense proponents hope they'll have better luck persuading Gov. Timothy M. Kaine, a former defense attorney who has done work for the American Civil Liberties Union, is married to a former juvenile court judge and is deeply religious.

The lack of political pressure so far, some say, is because there is no political constituency among indigent clients. Hingeley said this misses the point.

"The point is; it's the system. We all need to have a fair trial," he said. "We've known for years, we're always in the cellar. When is it going to end?"

About 50 percent of David Eustis' cases are court-appointed. The Charlottesville lawyer with 12 years' experience said he stays on the list because he views it as a public service.

He points to a future in which fewer attorneys will be willing to take on court-appointed work.

"I think things will change when the courts find that there are just not enough people, or there is no one to take the criminal court-appointed cases," Eustis said. "And when the circuit judges get under pressure and cannot find people for those reasons, that's when the legislature will act, because the fact is, the cost of legal services in the United States is going up and the Virginia legislature is not keeping pace."

Contact Liesel Nowak at (434) 978-7274 or lnowak@dailyprogress.com.