Virginia Lawyer's Weekly

April 02, 2007, Volume 21, Number 43

Kaine proposes amendments to court-appointed pay bill

Attorneys appointed to represent indigent juvenile defendants would get substantially more money under amendments to legislations proposed by Gov. Timothy M. Kaine.

Now, those attorneys get $120 per charge, regardless of its seriousness.

Under Kaine's amendments, they would get the same amount that a court-appointed attorney receives for representing a defendant in circuit court. The General Assembly will consider the amendments in there veto session April 4.

The legislature had appropriated $8.2 million for waivers to the caps state law places on the amount of money a court-appointed attorney can receive for each charge. Those amounts now are $120 for misdemeanors, $445 for felonies that carry less than 20 years as punishment and $1,235 for felonies with a minimum punishment of 20 years.

The legislature proposed allowing attorneys to get waivers in circuit court so they could be paid an additional $120, $155 and $850, respectively, if the case requires substantially more effort.

The bill also permits an attorney to request an unlimited amount of money for a case that requires an extraordinary amount of effort.

State law now allows court-appointed attorneys $90 per hour, but that's less than two hours of work for a misdemeanor and less than 14 hours for a murder charge, so that the cap becomes the amount the attorney gets in a case of any complexity.

The original bills sponsored by Sen. Kenneth W. Stolle, R-Virginia Beach, and Del. Lacey E. Putney, D-Bedford, provided for higher caps for representation of juveniles in addition to waivers of the caps.

The House Appropriations Committee balked at the increase, which is estimated to cost $2.8 million a year statewide.

Betsy Edwards of the Virginia Fair Trial Project, which helped coordinate the effort of bar groups to support the legislation, praised Kaine for the amendments affecting juvenile court representation. "It's going to take money out of the $8.2 million, but that's a good thing because it's such a gross inequity," said Betsy Edwards of the Virginia Fair Trial Project, which coordinated the legislative effort of bar groups.

The concern now is developing guidelines that will allow judges to grant waivers equitably across the state.

"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 earlier this month in announcing the formation of a committee that will draft the guidelines.

Hassell said he hopes to have the guidelines ready to present to judges at their mandatory conference in May.

Another key component is developing an electronic voucher system that will allow the court to closely monitor the amount of time court-appointed attorneys spend on their cases.

Kaine added language to the bill that would require the court to provide quarterly reports on the amounts paid by waiver to him and to the House Appropriations and Senate Finance Committees.

Timekeeping by criminal defense attorneys will require a substantial change in culture. Most defense attorneys charge their private clients a flat fee and have not kept close track of their time in court-appointed cases they reached the fee caps so quickly.

The legislation authorizes two additional positions in the Office of the Executive Secretary to administer the program.

Edwards said proponents of better court-appointed pay view this year's legislation as a first step toward elimination of the fee caps in all cases.

That might involve lowering the hourly rate to $72, which would be more in line with states that do not have a cap, and paying attorneys on a per case rather than a per charge basis.

The key is providing the legislature with a realistic estimate of the cost of eliminating the caps.

Hassell said advocates of removing the caps altogether trimmed their sails because preliminary estimates put the cost at $40 million, and information on which the projections were made was sketchy at best.

Legislators "don't like our guesstimates," nor should they, Edwards said. Information developed by analyzing time sheets and waiver requests should provide a basis for a more rational policy, she added.