In San Diego, lawyers who ordinarily represent indigent criminal defendants are refusing en masse to handle any further cases because they believe the pay is unfair. They are on strike.
In Florida and Alabama, lawyers are suing the state because they say the fees they get for representing poor defendants are so low as to amount to involuntary servitude.
In Missouri, lawyers have been cited for contempt of court for refusing to accept court-appointed defense work. The lawyers complain that some of the cases take up so much time for so little money that their own legal practices and financial well-being are threatened.
Rick Wilson, of the National Legal Aid and Defender Assocition, contends that these events are "symptomatic" of what he believes is beginning to be a national crisis in legal representation for poor people charged with crimes. No one, as of yet, is going unrepresented. No one charged with a crime can go unrepresented under the Supreme Court's landmark ruling in the 1963 case of Gideon v. Wainwright .
But the quality of the representation is in part determined by how much time and effort a lawyer can spend on a case. That, in turn, many lawyers say, is determined by how much governments are willing to spend on the lawyers.
Already functioning under tight budgets and budget-cutting fever, many governments aren't willing to spend much.
And while "pro bono" -- free or nearly free -- representation can be had, few of those familiar with the modern legal profession consider it a practical method of handling the tens of thousands of criminal cases each year in which an indigent is charged with a crime.
The problem is less severe where there are adequate government-financed public defender programs with full-time defense lawyers. But there are few such areas and even where there are,the defenders are overloaded with work. The Sixth U.S. Circuit Court of Appeals, for example, recently reversed a man's robery and murder conviction because his public defender was too overworked to handle appeals properly.
The most vociferous complaints of the court-appointed lawyers are about the complicated cases, particularly those with a potential penalty of death. Consider, for example, the situation of Clifford L. Davis, a Tallahassee lawyer appointed in 1979 to represent a defendant in a kidnapping, rape and murder case in rural Wakulla County, Florida.
Davis, like roughly half of the lawyers outside of large cities, runs oneman law firm. He is an experienced criminal lawyer with full docket of cases most of the time.
The murder case was highly publicized, in part because the defendant was black and the victim, a 19-year-old woman, was white. That alone meant that the hours he would put in would be long. First, there was a motion for a change of venue (denied), then a motion to exclude from evidence confessions made by the defendant (denied), and then the trial itself and, of course, weeks of preparation for each stage.
One of the arguments on a motion alone consumed 11 hours, Davis said in an interview. The trial consumed a full week. Once it was all done, appeals and everything, and the defendant was convicted, Davis said he had spent over 400 hours on the case. That meant 400 hours not spent on paying clients.
Davis said his normal fee for such an effort would be about $25,000. But under Florida law, the maximum fee he could receive for the entire process was $2,000. That worked out to a fee of $5 an hour. A standard fee for civil work, in which no one faces a jail term let alone the death penalty, ranges from $50 to $75 an hour at an ordinary law firm.
Davis and another lawyer involved in the case sued the state of Florida, charging that the fee limitation amounted to a denial of due process for the client and involuntary servitude for the lawyer and won a partial victory last month when the Florida Supreme Court allowed him to "stack" the fees so he could receive the maximum amount for each of three courts, giving him $6,000, he said. But the court did not rule on the constitutional issues.
Even lower fees are paid in Alabama, where the Southern Poverty Law Center is preparing a major class action against the state on the matter. lThere, the state puts a ceiling of $1,000 on attorneys' fees for court-appointed lawyers. There are no public defenders in most of Alabama.
A lawyer "spends more than that just on expenses for a case," said Dennis Balske, a center attorney. "You can't even pay an expert witness, a psychiatrist for example, if there's an insanity plea involved."
A similar suit has been filed in Sonoma County, California. There, lawyers are paid $35 an hour for pre-trial work and $250 per day for trial work. The same county, said state Public Defender Quin Denvir in a friend of the court brief in that case, pays $60 to 90 an hour for private lawyers representing the county in civil matters.
Both California and Missouri have recently confronted crises in indigent criminal defense. When the Missouri Public Defender program ran out of money on Jan. 12, a county judge had to send a sheriff hunting for lawyers to represent those who could not afford it.
He wound up drafting attorneys employed by the state.
In the San Diego area, South Bay Bar Association members began a boycott of court-appointed work on May 1. They are disputing a plan by judges in the county that would lower the fees for such representation, a plan that includes a proposal to pay them nothing for the first day of trial in misdemeanor cases.
Enough lawyers have been found to continue processing cases, according to William B. Saunders, one of the boycott leaders, and he said he expects a settlement of the dispute soon.
But like lawyers in Missouri, San Diego attorneys hope to make a point. Most say that they often represent defendants for nothing. But that can only go so far, they say. If a lawyer receives one complicated case, a capital case, it can be devastating.
"We cannot afford to give the time to represent capital murder defendants in cases that may take months and years," said Keith Birkes, director of administration for the Missouri Bar Association. "We'd be bankrupted by it."
The problem, he said, is simply that states and counties will not or cannot appropriate enough money. "Three quarters of the way through a fiscal year, the money dries up and the courts can't pay court-appointed counsel. This has happened for the last four or five years.
"The courts continue to appoint lawyers and say you must do this and if we later get some money, we'll pay you back," Birkes said.
"Asking lawyers to undertake these cases without compensation or with little compensation is literally taking bread off their table," said Wilson, of the National Legal Aid and Defender Association, a Washington lobby group. "It impacts the most in smaller towns and rural areas, where there's still a tremendous shortage of lawyers" and no public defender system, he said.
Davis, who filed the suit in Florida, said the system there has lawyers "subsidizing the county treasury with their time. I don't know of any other occupation that has to subsidize a county to that degree."