published Saturday, July 30th, 2011

Courts propose contracting indigent defense in some cases

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Tennessee Indigent Defense Fund

2004-05 $19.5 million

2005-06 $20.6 million

2006-07 $24.3 million

2008-09 $30.5 million

2009-10 $34.6 million

Source: Tennessee Administrative Office of the Courts

A small but growing group of criminal defense attorneys thinks it's a bad idea to change how court-appointed defense lawyers are paid.

On July 1, the Tennessee Administrative Office of the Court filed the proposed change to Rule 13, which would allow contracting services in some cases rather than the hourly fee usually charged by attorneys.

Supreme Court Order
Supreme Court Order

AOC spokeswoman Laura Click said there has been misunderstanding about the proposal and "alarmist" reactions. Its intent is to contract legal representation for indigent cases. The goal is to streamline the system and save money from the growing Tennessee Indigent Defense Fund, she said.

The system would be used first in judicial hospitalizations, and then might move in child support contempt cases, she said. Those two types of cases together make up about 10 percent of all indigent defense cases.

But attorney Robert Foster told a group of Chattanooga attorneys Wednesday the proposal is too vague, doesn't specify types of cases and creates an indigent defense "czar" that would have authority to expand or alter the program.

"I don't care what the intent is. I care what the language states," Foster said. "If that's what they want, then spell that out in the rule."

Foster is a former defense attorney who now runs Billable Hours Inc., an attorney service that handles accounting and fee collection for about 400 lawyers in Tennessee.

The number of claims for court-appointed attorneys has nearly doubled since 2004, and the cost has increased from $19 million to $34 million, Click said.

The public can comment on the proposed rule at the AOC website or by mail. The public comment period lasts until Sept. 1.

Tennessee Supreme Court justices vote on proposed rule changes to the court.

If the proposal passes, the only recourse for those against it would be a push to have the Legislature take authority over the indigent defense system from the AOC.

Criminal indigent defense rates are $40 per hour for out-of-court work and $50 per hour for in-court work on noncapital cases. Those rates have been in place since 1994.

There is a separate proposal under consideration that would raise the pay for criminal indigent defense services.

Critics say that contracting attorney services likely would work on a lowest-bidder basis to save money in covering cases by volume.

Foster argued that this would further lower fees paid to attorneys. That contradicts recommendations from an AOC legislative report released in January that called for higher hourly rates for these services.

The Chattanooga Area Criminal Defense Lawyers met Wednesday at Joe Friday's Alaskan Coffee House, a restaurant owned by local attorney Rich Heinsman, to hear from Foster.

As Foster spoke, many nodded their heads, asked questions and commented. Some lawyers, including Kevin Loper, worried that contracted services also would limit local judges' power to remove attorneys from cases.

In his recent Tennessee travels, Foster has gained the support of Lt. Gov. Ron Ramsey. Foster played video footage of Ramsey's take on the proposal to the group.

"Legal services isn't really like road building," Ramsey said to the camera. "It's hard to put a fixed cost on how to represent somebody."

Calling private lawyers essentially small businessmen, Ramsey noted the strained economic climate and said, "The last thing the state needs to be doing is punishing them."

Another speculated that contracting might mean an attorney couldn't collect fees for a case if he was appointed by the judge but not on the approved contract list.

Hank Hill noted that due process and effective counsel would be endangered when representation is taken over by firms specifically set up to gather up these contracts. Such situations could create more expensive and lengthy appeals, he said.

Attorneys Donna Miller and Amanda Rogers cited problems in other states, most notably Georgia, which was sued multiple times in 2009 over alleged ineffective legal counsel in criminal cases.

about Todd South...

Todd South covers courts, poverty, technology, military and veterans for the Times Free Press. He has worked at the paper since 2008 and previously covered crime and safety in Southeast Tennessee and North Georgia. Todd’s hometown is Dodge City, Kan. He served five years in the U.S. Marine Corps and deployed to Iraq before returning to school for his journalism degree from the University of Georgia. Todd previously worked at the Anniston (Ala.) Star. Contact ...

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rlfesq said...

Todd, thank you for covering the event related to stopping the pending Amendment to Supreme Court Rule 13. It is worth noting that the 40 and 50 dollar an hour rate of pay is somewhat misleading. Actually, attorneys are paid 40 and 50 per hour subject to set caps on total billing per case, subject to judicial review and AOC review. In order to determine the actual hourly rates, one must take the entire number of hours worked and divide that into the amount paid for the number of hours worked. Alarmingly, you will find that the hourly rates are substantially less than 40 and 50 per hour. After that you must take away the expenses not reimbursed and overhead costs to find that the hourly rate these attorneys actually earn is much much less than 40 and 50. If the bottom line number was 40 and 50 then I believe you would not hear as many complaints.

Lets face it, the indigent defense bar is simply not properly compensated for the heightened responsibility it has, protecting the constitutional rights of the entire citizenry of Tennessee.

It is also worth noting that these attorneys working in the indigent defense bar do not just represent criminal defendants, they represent parents facing losing their children to state's custody and children who are facing going into state's custody.

The indigent defense bar should be given a standing ovation for the honorable work they do protecting the constitutional rights of all Tennesseans and they should be properly compensated for the work they do. Lets not auction off justice. Thanking you for your attention to this matter, I remain, Forever grateful, Robert L. Foster, Esq. 423-620-3290

July 30, 2011 at 12:38 p.m.
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