Virginia Lawyer's Weekly

March 19, 2007, Volume 21, Number 41

Court developing rules for fee-cap waiver pay

Officials to keep eye on $8.2M from Assembly for appointed lawyers

Court officials will develop guidelines in the next few months for judges to use in deciding whether to waive the cap on court-appointed attorneys’ fees in particular cases.

“We have to make sure that we don’t run out of money,” Virginia Chief Justice Leroy Rountree Hassell Sr. told the Virginia Judicial Council last week. “It’s very, very important that we monitor closely these limited waivers.”

He said the court system does not want to be in a position where it has to stop paying the waivers early in the 2008 fiscal year because it has already spent the $8.2 million the General Assembly allocated for the program.

“The guidelines will be designed to have some equitable system of who gets the waiver and who does not get the waiver,” Hassel said. A committee composed of judges from all levels of the court system, criminal defense attorneys and staff from the Office of the Executive Secretary will draft them.

The General Assembly appropriated the money earlier this year for what proponents of higher court-appointed pay hope is the start of a better way of providing representation for indigent defendants.

Virginia pays a relatively generous $90 an hour for such representation, but the rate is seldom mentioned because it quickly bumps up against unwaivable caps: $120 for a misdemeanor, $445 for felonies punishable by less than 20 years in prison, and a maximum of $1,235 for felonies with a possible punishment of 20 years or more.

The legislation allows a waiver of the cap on misdemeanors by an additional $120. It provides an additional $155 for lesser felonies and $800 more for the most serious ones.

It also provides for a “super waiver” over and above those caps in extraordinary cases.

Hassell noted that the Office of the Executive Secretary estimated that removing the caps altogether would have cost about $40 million.

But court officials concluded that such a request was impractical because of the amount and because “we quickly learned that the numbers were problematic.”

He said the legislation includes provisions to set up a system that will accurately reflect the amount of time defense attorneys are spending on cases. That will require a change in culture because defense attorneys typically charge a flat rate for their private clients and have not kept close track of their time in court-appointed cases because they reached the fee caps so quickly.

A description by Executive Secretary Karl R. Hade of some of the thinking of an indigent defense study group last fall provided some hints of the elements of indigent defense reform in addition to a complete waiver of caps.

The hourly rate might actually go down to $72 an hour, which would be closer to the rates paid in most states, and attorneys would be paid by the case rather then by the charge as they are now, Hade suggested. Virginia is the only state that pays by charge rather than by case, but changing the system of payment could complicate reform efforts, he said.