For a lawyer, having a case at the Supreme Court is nice work if you can get it.
But the pay isn't always so hot.
Consider the experience of Vivian Berger, a Columbia Law School professor appointed to represent a defendant in a death penalty case last year. Berger spent 283.5 hours on the Supreme Court stage of the case of Robyn Leroy Parks, who murdered a gas station attendant.
She lost the case, Saffle v. Parks, and then submitted a bill for $28,756.05. Berger argued that changes in a 1988 drug law had lifted the court's previous limit of $2,500 for death penalty cases. She noted that guidelines developed by the U.S. Judicial Conference to implement that law recommended payment in death penalty cases at a rate "reasonably necessary to obtain qualified counsel" and suggested between $75 and $125 an hour.
Berger said she asked for $100 an hour, "just to be moderate," except for two hours of in-court time at a $125 hourly rate. To put it in perspective, that is less than the hourly rate some major Washington law firms charge for first-year associates. In an affidavit submitted in support of her request, John H. Hall, a partner at the New York law firm of Debevoise & Plimpton, said he charges paying clients $395 an hour.
The court dealt with her request in an unsigned order last week. The good news was, it agreed to change the $2,500 limit. The bad news was, it lifted it to $5,000.
"Given the rising costs of practicing law today, we believe that appointed counsel in capital cases should be able to receive compensation in an amount not to exceed $5,000, twice the limit permitted under our past practice," the court said.
For Berger, that worked out to about $17 an hour, a sum she considers "outrageous." She said her Columbia colleague, James Liebman, appointed in another case last year, would make out even worse, averaging $12 an hour.
In explaining its action, the court said in deciding what was "reasonably necessary to ensure that capital defendants receive competent representation in proceedings before this court," it was taking into account that even at $2,500, "the level of representation by appointed counsel in capital cases has almost invariably been of high quality."
Although "it could be reasonably argued" there was no need for a higher amount, the court said, "this argument is outweighed by the possibility that the cap of $2,500 may, at the margins, deter otherwise willing and qualified attorneys from offering their services to represent indigent capital defendants."
It said considering fee requests on a case-by-case basis "would not be a wise expenditure of this court's limited time and resources."
Berger said the court's flattery about the quality of death penalty lawyers appearing before it was nice. But she said the cap was "grossly unfair" -- particularly when applied against private lawyers who didn't want the court to take their case anyway and who may not have the luxury of operating from Columbia Law School, the NAACP Legal Defense Fund or the American Civil Liberties Union.
For a lawyer struggling to keep a private practice going while he represents a death penalty defendant through state and federal courts, she said, the limit is unjust. "Not everybody thinks, 'Oh, I'm a professor and isn't it great to go to the court . . . . It's unfair to kidnap them into that situation."
Berger said the court's position was particularly ironic in light of efforts in states to increase compensation for death penalty lawyers to make sure they will be adequately represented. In Mississippi, for example, the state supreme court recently lifted a $1,000 cap in death penalty cases and said lawyers were entitled to at least $25 an hour.
"They should be embarrassed by Mississippi," Berger said. "They are in a position to send messages and this is a bad message. It's a message of unfairness if you've got a lawyer who needs the money and as a general message to places like future Mississippis who might be inclined to look at what the Supreme Court is doing.
"I am not complaining that I took this case planning to get rich," she added. "I'm talking about the systemic results."
On the other hand, it could be worse. Lawyers "invited" -- the court's term of choice -- to represent indigent parties in civil cases get nothing. And those appointed in non-capital criminal cases are still stuck at $2,500.