By Tom Jackman
Washington Post Staff Writer
Sunday, March 4, 2007; C06
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.
The General Assembly reduced Kaine's proposal to $8.2 million. The legislature also agreed to a 9 percent increase for public defenders, on top of a 4 percent raise for all state employees, lifting the starting salaries of public defenders to nearly $48,000, Johnson said.
Both houses approved the bill, which the governor will sign, Kaine spokesman Kevin Hall said. "This is an area the governor has had an interest in for years," he said.
The bill increased caps on all General District Court pay for attorneys from $120 to $240 per case. The caps for felonies punishable by up to 20 years rises to $600 in circuit court and to $2,085 for felonies punishable by life. There was no change in payments for juvenile court cases. There are no caps on capital murder cases.
The decision to actually pay court-appointed lawyers more money will rest with the chief judges of each court. Asked if judges will be inclined to lift the caps, Herndon said "the court has consistently supported better compensation for court-appointed lawyers."
Kimberly J. Phillips, a former public defender now in private practice, said she was excited that the caps could be lifted. But she said she was concerned because "there's no process associated with the waivers or any standard" for deciding when a case qualifies for a cap waiver.
Lawyers at the Fairfax County courthouse said they mostly took court appointments as a public service, knowing that they would lose time and money. A case that resolves itself in district court pays $120, regardless of how much time a lawyer devotes. Some said they did not even keep track of whether they got paid for a case.
Steven D. Benjamin, a former head of the Virginia Association of Criminal Defense Lawyers in Richmond, said the change has the potential to change a system where "the longer a lawyer worked on a case, the more it hurt him financially.
"When lawyers can't afford to work more than several hours on a case, innocent people get convicted," Benjamin said. "I don't know of any other hourly wage earner who would keep working if they weren't getting paid. But the point of this reform has never been about better pay for lawyers. It has always been about ensuring better representation of the clients who rely on them to protect their innocence."
