Washington Post

Justice Restored

New rules on attorneys’ fees offer hope for Virginia defendants.

Monday, March 5, 2007; A14

IT ATTRACTED little notice, but Virginia’s legislature took a big step last month toward reforming the antediluvian rules that make adequate legal representation a pipe dream for many poor defendants in serious criminal cases.

Alone among states, Virginia until now has set ironclad caps on the fees paid to court-appointed defense attorneys, caps that cannot be waived under any circumstances, even by judges. The capped fees are so low that often the effect is to force defense lawyers to work for peanuts or discourage them from working enough, in all but the most open-and-shut cases.

For instance, a court-appointed lawyer representing an indigent client facing life in prison would be paid a maximum of just $1,235, even if the case went to trial and dragged on for weeks, requiring scores or hundreds of hours of legal work. In less serious felony cases, capped compensation is even more ludicrous: $445 for attorneys representing poor defendants facing prison terms of up to 20 years. (The exception is death penalty cases, which are not subject to a cap.)

This sorry state of affairs is shockingly common because a large majority of criminal defendants cannot afford legal representation and about half live in jurisdictions without public defender offices and must rely on court-appointed lawyers.

After years of shrugging off the problem, the General Assembly finally addressed it last month, thanks to the bipartisan efforts of Gov. Timothy M. Kaine, a Democrat, and Attorney General Robert F. McDonnell, a Republican. With scarcely a murmur of opposition, lawmakers approved a measure to raise the caps for court-appointed lawyers handling adult felony cases – and, far more significantly, to allow the caps to be waived with judicial approval.

The legislation is not perfect and would benefit from amendments that Mr. Kaine ought to offer. Under the bill as written, the no-waiver rule would remain for cases involving defendants under the age of 18 if they are tried in juvenile court, as well as for misdemeanor cases in district courts. In both instances it is possible to imagine scenarios under which the fee caps now in place would discourage court-appointed lawyers from mounting vigorous defenses.

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What’s more, real reform is still at least a year off as a matter of practice. Since the courts could not determine the probable cost of the higher caps and waivers, lawmakers appropriated an extra $8 million, a token amount; the understanding is that fee data collected under the new rules in the coming year will allow for a more precise estimate of actual costs and a more realistic appropriation.

As Mr. McDonnell pointed out, any justice system will not work unless both sides of a criminal case are represented by competent, fairly compensated attorneys. Until now too many defendants in Virginia were denied that basic right. Now, at least, there is the real prospect of a fix.