Lawyers for Indigent Up for Pay Increase

Legislation Allows Judges to Waive Limits That May Have Discouraged Signing On to Case

Virginia's system of providing lawyers for poor criminal defendants, long ranked as the lowest-paying in the nation, is finally seeing a transformation and an infusion of cash from the General Assembly, a step many believe will produce a fairer state justice system.

Both houses voted unanimously last month to allow circuit court judges to waive limits on fees paid to court-appointed lawyers and to provide a 13 percent pay raise to public defenders. Virginia is the only state in the country with caps that cannot be waived.

The fees "weren't fair to the defendant, and they weren't fair to the lawyers," said Virginia Attorney General Robert F. McDonnell (R).

At present, a court-appointed lawyer representing someone charged with a felony punishable by up to 20 years in prison could earn a maximum of $445. For cases with penalties up to life in prison -- murder, rape, aggravated malicious wounding -- the maximum is $1,235.

The low wage is suspected of discouraging some attorneys from volunteering to take the cases, and others from working hard on the cases they are assigned. At the state's rate of $90 an hour, it does not take long to reach the cap. And public defenders, paid an entry level salary of about $41,000, have been quitting at a rate of 27 percent annually, said David J. Johnson, head of the state's Indigent Defense Commission.

"Fundamentally, [the waiver] makes Virginia's defense system better," said Malia Brink, indigent defense counsel for the National Association of Criminal Defense Lawyers. "The truth is there is no doubt the hard [fee] cap dissuades lawyers from doing everything they can in someone's defense. It was bogging down the whole justice system."

Reports have castigated Virginia for its low pay. "It's an embarrassment to Virginia," said state Sen. Kenneth W. Stolle (R-Va. Beach). "It's an embarrassment to our justice system. We needed to fix it for a number of years."

Indigent criminal defendants do not wield heavy political clout, so annually, defense advocates lobbied but lost.

A prominent Washington law firm, Covington and Burling LLP, prepared a federal class-action lawsuit alleging that Virginia's system violated the Constitution, but the firm did not file it on the assurance that change was imminent. A lawsuit could have forced the issue into the courts, and legislators nearly took action in 2006.

But they did not. After the reform effort failed, McDonnell, Gov. Timothy M. Kaine (D), the state Supreme Court and various legal groups gathered to devise a plan for the next session.

Bills were introduced to raise the caps slightly, a move that drew yawns from defense lawyers. But the key proposal was a move to allow circuit court judges to waive the caps in cases where they felt attorneys were entitled to more than $445 or $1,235.

Kaine's move to include $9 million in his budget for court-appointed lawyers bolstered the plan, said Betsy Wells Edwards, director of the Virginia Fair Trial Project. The funding meant that money would be available when judges waived the fee caps. The state already pays about $50 million annually to private court-appointed lawyers, said Supreme Court spokeswoman Katya Herndon, and about $30 million for its public defender system.