When "discussing" the issue of court appointed compensation with my judge when in private practice 15 years ago, I would opine that there is a constitutional requirement for legal counsel and the court must have a mechanism to supply it. Forcing lawyers to do it is an option if there are not enough volunteers at the compensation rate provided.

However, deny a prisoner medical care, dental care, safe housing, etc. and you will find that you have violated a constitutional right. These services are provided by licensed professionals with a monopoly granted by the state. Do they not a similar duty to indigent prisoners to give back to the State as they have this State granted monopoly? Why are lawyers different?

The cost of incarcerating prisoners could certainly be dramatically reduced if doctors and hospitals were ordered by Courts to provide medical service at whatever rate the Court felt could be supported by the money available. Similarly with dentist who fix teeth, optomitrist who provide glasses, architects who design jails, engineers who build them ...

Hey we could even exploit the plumbers, electricians, etc. who have licenses by appointing them at whatever rate the Court feels fair when constructing jails and prisons.

I feel the cost of such painful projects and operating costs going down, down, down, ....

We just need one County Judge needing to build a jail and not having enough money to do what is constitutionally mandated by the prisoner's rights to step up to the plate; or, a County Judge where the prisoners' medical bills are eating the county's lunch to take a swing ...

How did lawyers ever get singled out for this abuse?

Stephen, while this reasoning always has lacked logic to me, here's how the courts respond to your question:
"Attorneys are officers of the court, and are bound to render service when required by such an appointment." Powell, 53 S.Ct. at 65.

"An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus, the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a "taking of his services." Dillon, 346 F.2d at 635.

"(T)he Fifth Amendment does not require that the Government pay for the performance of a public duty it is already owed." Hurtado, 93 S.Ct. at 1163.

"[C]ourts reason that compulsion of service is not a taking because there is a preexisting duty to provide such service. The source of this duty is a lawyer's status as an officer of the court."
Williamson, 674 F.2d 1211

"When a lawyer takes his license he takes it burdened with certain honorary obligations. He is a sworn minister of justice, and when commanded by the court he cannot withhold his services." Becker, 174 S.W.2d at 184

And my personal favorite from Williamson: "Attorneys may constitutionally be compelled to represent indigent defendants without compensation. The thirteenth amendment has never been applied to forbid compulsion of traditional modes of public service even when only a limited segment of the population is so compelled." (citing in support cases upholding the military draft, work on public roads, and special draft of medical personnel)

Its really not that hard to understand, I guess. If you are parent, you provide child support; if you are a lawyer, you provide indigent defense.

But note, this public duty appears to apply to all lawyers, thus my conclusion earlier that logically all lawyers have the obligation to be competent to meet the court's call.

Is compensation the question? Would you feel better as a tax attorney, who probably bills 150.hr or more, if you received "adequate" compensation for your appointment?

I agree with Mr. Hughes, that the "rock" bottom line will be a determining factor in whether you take appointments, the issue is one of voluntary serving. No one should be forced to take criminal appointments, ever. There should never be a time that we, as attorneys and judges, put the liberty of another American at stake by appointing the least qualified person we can find. The criminal law, like any other branch, is filled with case law that defines positions of law, take for instance due dilligence in MTRs. If you are not familiar with case law, and only read statute on a motion to revoke, you may miss the dilligence argument that makes the difference as to whether your client goes to the pokey for eight years (yes, eight years, two thousand, nine hundred and eighty days spend in the company of men we wouldn't want washing our car, that come to the court house in chains because they can't be trusted) for failing to complete his community service hours and anger management classes.

To be quite sure that I know what I am talking about, lets ask John - he started this thread. If John were arrested for DWI in San Antonio, which is highly unlikely because I hear he is a very upstanding citizen, but we'll use this for the sake of argument, and evading arrest with a motor vehicle because he drove for 3 blocks, to get to a place where a witness would be present for the interview, before pulling over. Lets add that John follows all the traffic laws, and knew that he did nothing wrong to support the pc for the initial stop. John performed as well as could be expected on the FSTs, but the breathalizer says .12. John has had NOTHING to drink that night and is dumbfounded. Does John take that 'gotta do your duty as an American Lawyer, never really got the hang of criminal law, no jury trial experience in criminal law, forced on the appointment list' attorney, or does John call out the San Antonio DWI big guns like Jimmy Parks, or George Scharmen.

Because if that appointed lawyer is not good enough for John Bradley, he is not good enough for any American facing a loss of their liberty in a complex legal system.

As I mention earlier in this thread, I am no fan of mandatory pro bono work. And, for the very good reasons that many of you present, I would rather not force professionals to serve in an area they do not choose on their own. But, the fact is that the Supreme Court has interpreted the US Constitution to give an indigent defendant a free lawyer. OK, so how are we going to make that happen?

I think we can all agree we will never see a system that pays a defense attorney market rates for that work. Frankly, the public can't afford it. So, that leaves a system that requires lawyers to donate some of their time and be paid at less than market rates.

Given that scenario, my choice would be to make sure that the best lawyers are doing the work. I want Dick Deguerin defending me on my DWI. And I aint got the money to pay him market rates. So, why can't a judge include him on a list of lawyers available for appointment, whether he likes it or not?

Sure, he will have to do it at some financial sacrifice. But, we are only talking about making 10 million a year rather than 15 million, right?

The reason Dick Deguerin will never be on the appointment list is because he will not continue to be the infamous Dick Deguerin, who charges great rates to devote his time to 'smarmy' defenses that win juror sentiment (and I say 'smarmy' with all due affection). After all, even the Judges know that they have to have someone good to call should the 'Honorables' ever get in trouble.

In NY, low rates for court appointment led to a lawsuit. How long before it gets to Texas?

I swear that I am not a cheesy, touchy-feely broad, but:


Hard work and compassion for indigent clients has served me well.

The cases on which I earn the least money always turn out to reward me the most. And there are many lawyers in my county who feel the same way.

Besides, I see clients get thrown to the wolves by "big money" lawyers all the time.

I can look at myself in the mirror at the end of the day.

Have a good day!

[This message was edited by Shelby on 06-22-06 at .]

While I wholeheartedly agree with Frank L's earlier post, let me move the discussion sideways. Shouldn't a lawyer found to have given ineffective assistance face both removal from the appointment list, removal of specialization, mandatory referral for attorney discipline, as well as an action to recover fees paid by the state?

I think we coddle bad attorneys way too much and give far too great an incentive to "fall on the sword" for the "criminal accused".

We also need to support fair (if not lucrative) compensation and unlike Shane am not as adverse to involuntary appointment. Unlike pro bono the criminal defendant has a right to counsel. Doesn't every lawyer vow to support the constitution. I know it has been a while for me, but I seem to remember that being in the oath I took back in 86.

As an ADA in El Paso, this is what I see:

Apparently the attorneys here either take a certain number of appointments or pay some $ each year to buy their way out of having to take appointments. However, almost all criminal cases seem to be handled by the same group of defense attorneys, some of whom work for the public defender's office here, but most of whom are in private practice. (And a fair number of those used to be ADA's themselves, once upon a time in the past.)

One characteristic of prosecuting here is that the citizenry take the presumption of innocence very seriously, to say the least. I once suffered an acquittal on a case in which the defendant fell over sideways on his first step on the walk and turn (the FSTs having been captured on video in all their glory). When I asked the jurors afterward what had factored into their decision, they told me that they had timed how long the defendant had been able to stand with one foot in front of the other while the officer told him the W&T instructions -- he'd in fact been able to stand that way for more than a minute. And so when he fell on his face as soon as he started trying to walk, they just had a doubt about whether he'd lost normal use.

And so it goes.

Clay, I agree that if you have been found to be ineffective as a defense attorney, you should be found to have violated one of the rule of ethics. However, I have had that happen, even to the point of an attorney filing an affidavit in a motion for new trial stating he was ineffective (although he never admitted it was because the defendant's check bounced during trial). Still, the grievance committee wouldn't even ask him if the allegations were true and dismissed the case. Note that this was even after the court of appeals found him ineffective and granted a new punishment hearing.

My only solace in all this is that I still do my job and the majority of the crooks get the justice deserved. I just regret that I have to endure the bad attorneys who make my job that much more difficult. I spend too much time making sure they don't commit reversible error and then having to listen to their closing arguments about how good a job they have done.

Having said all that, it has also been my experience that with mandates requiring an unbiased system of appointments from a designated list, once you are on that list, no matter what, you will likely still get appointments. Sigh.

Have court appoints gotten better or worse since this thread was started?

The pay for court appointments in many jurisdictions is dismally low. I don't know about your judges but in many of the courts I have worked in the judges regularly cut the hours on the bills submitted by the defense attorneys. I sure wouldn't be thrilled by court appointments. Maybe the recent changes in the law will help. I prefer an experinced defense attorney. The work is usually resolved quicker and in a predicatable manner. I have not noticed any change in the last three years.

For an update on the Dallas public defender office, click
here.

Sounds like the natural work of a beaurocracy with no leader accountable to the public.

Pros and cons of public defenders
By LISA FALKENBERG
Copyright 2008 Houston Chronicle


Dallas County's public defender office, the oldest and largest in Texas, has been held up as a model by some of the folks trying to establish a similar indigent defense system here in Harris County.

But lately, the grass isn't looking so green on the other side.


Rest of commentary.

I was in Midland for 23+ years on both sides of the aisle. They have what they call the Bar Plan for appointments and it creates 3 tiers of lawyers, i.e.:

1) - You can volunteer to take appointments. Theoretically, this is done on a pure rotation basis to evenly distribute the number of appointments, but I think there is some variations by the courts to avoid the most serious cases from going to the kind of guys that aren't very diligent.

2) - You can pay a fee (several hundred dollars per annum) to not get appointments. This money is managed by the local bar and is used to supplement the county payments to those in group 1 above. Every quarter or so, you get a check based on the number of cases you've taken in that period (actually, I think it's based on the amount of fees set by the judges for the work you've done). The deep-carpet snobs can still thumb their noses at us, but first they have to write us a check (too bad none of it went to the DA's office).

3) - you can do neither of the above and get an appointment every time your name comes up. The name of every lawyer is on a master list. If Joe Smith is next and he paid his fee, that case goes to a guy in group 1. If Joe didn't pay, he gets that case.

There were a couple of guys in group 3 that resisted appointments to the point of litigation and contempt of court. The Bar Plan passed judicial scrutiny in those cases, including appellate review.

Generally the plan worked pretty good and helped make appointments economically feasible for the competent guys in group 1. There were still a few nimrods that need to go into another line of work, but the courts tried to limit their appointments to the easier cases (my impression only). Simpler cases means lower fees set by the court, which in turn means a lower supplement check from the Plan. I don't know if it was intended that way or not, but it would seem to have the effect of dissuading the incompetents from staying in group 1 unless they really like Spam.