The focus of news stories and comments on the strike of the lawyers representing indigent defendants at the D.C. Superior Court has been on fairness to the attorneys involved. It is certainly true that the hourly fees, which the government has not raised in 13 years, are absurdly low in comparison with the income of lawyers in other fields; men and women fresh out of law school are being paid in the neighborhood of $40,000 by large law firms which specialize in representing wealthy corporate clients.
But something more than fairness to lawyers is at stake, and that is fairness to the indigent defendants and to the integrity of the criminal justice system itself. As one who was involved in the process, I well remember the conditions that led to the application of the federal Criminal Justice Act to the local criminal courts. That act, passed by Congress in 1964, authorized payment out of the federal budget for court-appointed lawyers in the federal courts. However, initially no money was included for the courts of the District of Columbia.
A series of articles in The Post, and a report prepared for the Department of Justice, both published in 1966, described in detail how the lack of compensation for criminal defense attorneys was affecting the administration of justice in this city. Lawyers routinely tailored the quality of their representation to the amount of money they were able to squeeze out of the generally indigent relatives of their indigent clients. Cases were postponed again and again to allow more time for these collection efforts. When ultimately it became obvious that the defendant's relatives had neither cash nor property they could mortgage, the attorneys simply entered guilty pleas regardless of the availability of a valid defense. Objectively, one could hardly blame them: trials involving non-paying clients would occupy considerable time and would deprive the lawyers--who were existing on the margin economically--of the opportunity to receive and dispose of the cases of paying clients.
Such was the state of criminal representation for the poor in the District when, in 1966, I held in United States v. Walker that the Constitution required extension of the Criminal Justice Act to the city's local courts. Absent a cadre of paid attorneys, I concluded, it would be impossible for the District's courts to give effect and meaning to the requirement, first set out by the Supreme Court in Gideon v. Wainwright, that all indigent criminal defendants are entitled to the effective assistance of counsel.
Notwithstanding some opposition, the Comptroller General agreed with this analysis and directed the U.S. Treasury to honor Criminal Justice Act vouchers presented for representation in the local courts. In 1974 legislation was enacted permanently establishing this program as a part of District of Columbia law.
The current situation jeopardizes the progress that has been made since 1966. No one would argue that all the lawyers who regularly accept appointments under the Criminal Justice Act are the most competent members of the District of Columbia Bar--although in my own experience I have found many of them to be far more able and conscientious than they are given credit for. But what are the alternatives?
The Public Defender Service, with a budget almost comparable to that allocated to the Criminal Justice Act, takes only 15 percent of the District's indigent criminal cases. To expand the service so as to enable it to replace the Criminal Justice Act lawyers for the remaining 85 percent of the cases would cost the city many millions of dollars. It is doubtful that the mayor, the city council and Congress would be willing to incur such expenditures.
What, when, about unpaid volunteers from the private bar? To be sure, more than 39,000 lawyers are registered with the D.C. Bar. During the 12 years that I served as chief judge of the Superior Court, innumerable programs were proposed, announced, and commenced to involve the so-called "uptown bar" in criminal defense work in the local trial court, always without success.
The action of the bar at the time of the last "lawyers' strike" in 1973, when no Criminal Justice Act money was appropriated for local purposes, is instructive. In order to keep the criminal justice system going, the Superior Court authorized the chief judge to "draft" lawyers from among the bar at large, and thousands of orders appointing lawyers to newly arrested defendants were issued. The response was disheartening. Fewer than half of the attorneys bothered to show up at all, even though they had been summoned by a court order. Many of those who did appear were unfamiliar with criminal law as well as with the procedures and even the physical layout of the Superior court.
Additionally, the D.C. Bar filed a lawsuit in U.S. District Court to enjoin the lawyer draft, arguing, not without some plausibility 1) that if all members of the bar were required to serve, many of them, unfamiliar with criminal law, might be in violation of their ethical obligation to represent a party only if they could do so competently, and 2) that if only those lawyers with criminal law experience were required to serve, each would have to take so many cases that his paying practice would suffer or might even have to be shut down. Ultimately, Congress made the necessary funds available, and these hypotheses were never tested.
Reports are that, for the time being, operations of the criminal division of the Superior Court are continuing with the assistance of volunteers from the "uptown" law firms, but it would be surprising if that should prove to be a permanent solution. Approximately 70 lawyers must be appointed every day, six days a week, for newly arrested individuals. The lawyers who take the cases must appear in court not only for arraignments but they must also be there for motions hearings and for trials which, as many judges and lawyers know, must often be postponed for various reasons, including the unavailability of defendants, necessary witnesses, or counsel. One may wonder, but not for long, what will be given priority by these attorneys --a critical out-of-town deposition involving a paying client or an appearance in Superior Court on a volunteer basis?
It may be that the Superior Court, with the assistance of Public Defender Service and volunteer attorneys, will be able to keep the system going long enough to break the strike. Then what? Anyone who believes that criminal defendants in the District of Columbia will, on a continuing basis, receive adequate representation from lawyers who make so little money that they will be able to survive only by engaging in desperate maneuvers is living in a fool's paradise.
As time goes by, attorneys who have any ability at all will be lured into other endeavors. The remainder will be forced, even more than they are today, to take on far more work than they can handle, with the result that they will be needed, but will not be present, in several courtrooms at the same time, further taxing the already strained resources of the Superior Court. In their effort to survive, these lawyers will increasingly not waste their time with motions or trials, no matter how justified, but will instead enter guilty pleas for their clients. We will then be back more or less where we were in 1966.
Taxpayers should not be expected to pay criminal defense lawyers at the same rates that General Motors, AT&T and Mobil Oil pay for their own representation. But it does little good to fight crime by providing funds for police, prosecution and corrections if the court processes are snarled or if many convictions are ultimately reversed on appeal for lack of effective assistance of counsel.
The issue is not whether the District's Criminal Justice Act lawyers are justified in refusing to accept need witw appointments; the issue is whether fairness to the system of justice demands that they be paid adequate fees. These lawyers should receive the modest increase they have requested.