Va. Court-Appointed Lawyers Shun Fund, Jeopardizing Future

By Tom Jackman
Washington Post Staff Writer
Saturday, March 22, 2008

Criminal defense lawyers have used only a tiny fraction of the $8.2 million fund created last year to supplement Virginia's lowest-in-the-nation pay for the court-appointed bar, jeopardizing the continuation of the fund.

The General Assembly established the fund so Virginia could shed its label as the country's lowest-paying state for criminal defense lawyers. In the eight months since the fund was established, defense lawyers statewide have claimed about $640,000, or 8 percent, of the money.

The lack of interest is baffling defense advocates, who argued for decades that the money was needed to ensure that poor defendants get the same quality defense as those who can afford a lawyer. Finally, faced with the prospect of a class-action lawsuit, the legislature, Attorney General Robert F. McDonnell (R) and Gov. Timothy M. Kaine (D) devised a way to pay court-appointed lawyers more.

Now, in tough budget times, the General Assembly has reduced the fund by $5 million. And although defense advocates and judges feared that the legislature might stop funding the program entirely, the General Assembly did allocate $4.2 million for the next fiscal year, and $6.2 million for the year after that.

Beyond that, funding for the future is uncertain, particularly with millions of dollars for defense lawyers sitting untouched in the state treasury.

"That is a horrible embarrassment for the profession," said Steven D. Benjamin, a Richmond defense lawyer and director of the National Association of Criminal Defense Lawyers, who spent years fighting for the additional funding. He has heard from lawyers who can't be bothered to fill out the paperwork necessary to get more money, and "if they're unwilling to do that, they're as much of a problem as the attorney who shows up to court without interviewing his client or his witnesses."

Betsy Wells Edwards of the Virginia Fair Trial Project, which lobbied the legislature to preserve the funds, agreed. "It's just very confounding," she said. "Some people find it annoying to do the forms. Some people don't want to keep track of their hours. And some judges have been, at least originally, dissuading them from doing them" to save money.

In Fairfax County, at least, the judges are openly pleading with lawyers to file for the money. In a meeting last month, General District Court judges Mitchell I. Mutnick and Thomas E. Gallahue explained how to fill out the forms, when to use them and when to turn them in.

"We want you to have this money," Mutnick implored a couple dozen members of Fairfax's court-appointed bar. "Please, file for it."

The money was made available because Virginia law strictly limits what a court-appointed lawyer can be paid. For cases in district and juvenile court, the maximum is $120 per charge. For felonies punishable by 20 years or less in prison, the cap is $445. For felonies with a penalty of more than 20 years -- murder, rape, aggravated malicious wounding -- the maximum payment is $1,235.

Courts appoint lawyers when a defendant can't afford one, and when there is no public defender. In about 40 percent of Virginia, including Prince William and Stafford counties in Northern Virginia, there are no public defenders, and courts must use private attorneys.

Study after study hammered the commonwealth for its low pay, under the theory that attorneys were not spending enough time on their court-appointed cases because they were not paid enough, and thereby harming their clients. So defense advocates came up with an alternative: a waiver of the fee limits in some cases.

The law went into effect July 1 and provided for more money, depending on the severity of the case. It also allowed for additional money if the attorney submitted "a detailed accounting of the time spent and the justification for the additional amount." The state pays $90 per hour, far below what most private criminal lawyers would charge.

But the requests have not been flowing in. Between October and Feb. 29, lawyers were appointed to about 98,000 cases, Supreme Court spokeswoman Katya Herndon said. Only 2,127 requests came in for additional money, about 2 percent of all the appointments. Of all the requests for extra funds made since July, Herndon said, almost 96 percent have been granted.

Lawyers in Northern Virginia had a variety of explanations for the feeble interest in the money. The paperwork and process is onerous for not much of a reward, said Thomas F. Koerner. "None of these guys are getting rich doing this," he said. "To put an extra hurdle in to get an extra $90, it's almost insulting."

Many cases, particularly at the District Court level, don't require a lot of time, said Jenna Sands. "Do you want the time spent filling out forms," she said, "or do you want me to spend that time defending the client?"

Defense lawyer Michael Lindner said many lawyers take appointments "because they feel it makes a positive contribution to the community, not to make an extra $120 a case." He said that simply raising the fee caps "would have produced a more equitable result."

Benjamin and Edwards said lawyers need to fill out the forms so that the legislature can judge the need for funding. Without data, Benjamin said, Virginia may convert to a statewide public defender system, cutting out private lawyers almost completely in some areas.

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