The Virginian-Pilot

Overdue relief on attorney fees...?

After years of closed eyes and closed ears, state lawmakers finally heeded their consciences - and the threat of a class-action lawsuit - to upgrade legal services for the poor.

Despite the advance, no one would willingly choose to entrust his fate in court to a system like this.

The General Assembly lifted lowest-in-the-nation lawyer compensation caps by at least $8.2 million to $58 million.

In a weird twist that deserves a gubernatorial fix, the new law sets a double cap on lawyer fees for the indigent. If a judge agrees, the current, grossly inadequate payment caps can be set aside in favor of a new set that are merely inadequate. With permission of a circuit court chief judge, the caps can be waived altogether in the toughest cases.

That's far from perfect, but it's progress.

Far preferable would be for Gov. Tim Kaine to ask the legislature to revert to the original bill, written by a working group that included representatives of Attorney General Bob McDonnell, Kaine, state bar leaders, prosecutors and others. That group recommended abolishing the caps and letting judges pay defense attorneys for the indigent appropriately, based on the case.

Hopefully, that's where the legislation will wind up. For as long as anyone can remember, legal services for the poor have been an embarrassment in Virginia. National and state studies have documented, over and over, their inadequacy.

Everyone gets a lawyer, as dictated by the U.S. Constitution. But, they are not paid enough to transform that constitutional protection into anything more than a hollow promise.

Lawyers at the Washington law firm of Covington and Burling, and their Virginia allies, think the gap between guarantee and reality is the basis for a solid court challenge. They've been preparing one for several years.

Guided by that threat, lawmakers approved adjusted caps and allowed $8.2 million, less than a quarter of what's needed, to pay for them.

The legislation allows a judge to lift the cap from $1,235 to $2,085 for felonies carrying a prison sentence of 20 years to life and from $445 to $600 for lesser felonies. For misdemeanors and juvenile felonies, the caps can go from $120 to $240. Only in adult felonies, however, can caps be waived altogether.

The illusion of expecting a 16-year-old charged with a serious crime to get proper representation for $240 is self-evident. So is the inadequacy of most of the other fees, even in their improved state.

Even so, the new caps will be honored only so long as the $8.2 million holds out. Once the money's gone, the state will revert to previous payments. However, the new law will allow the state to guide future policy by collecting data on actual costs.

Lawmakers, who approved annual raids on the general fund for highways, might prefer to use excess state dollars on a new freeway in Northern Virginia or a tunnel in Hampton Roads. But they'd best remember: Roads aren't protected by the Constitution. A meaningful defense, even for the poor, is.