The pay for court-appointed criminal lawyers in Virginia has risen by $12 a case in the past 32 years. And Virginia is one of only two states with a mandatory cap on fees paid to defense attorneys -- and those fees are the lowest in the nation.And you know what this report will accomplish? Absolutely nothing. As the article recognizes, reports like this have been published periodically for 30 years in Virginia and we've seen one raise in the fees paid defense counsel The Legislature even refuses to fully fund that - the statute states I get $120 for misdemeanors but the Legislature only funds $112 (same situation exists for felonies). The only chance that this changes is if the courts step in. Even then I think it will have to be some sort of intervention by the federal courts. I still remember sitting at a CLE as our former Chief Justice said in a lecture that the pay may be low but it doesn't seem to have any effect on the representation he sees before his Court (I hope nobody needs an explanation as to the fact that the problem occurs at a much lower level).
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The report cites the "crushing caseloads" of public defenders, who often have little or no training before being assigned hundreds of criminal cases. And it attacks the state's Public Defender Commission for not fighting more vigorously for funds, equipment and training for its offices across the state, calling its efforts "timid."
"Indeed, it seems the Commission has taken pride in the repeated battle cry that it can provide representation to indigent defendants cheaper than court-appointed counsel," the report states. And with Virginia's court-appointed lawyers already the most poorly paid, "how effectively can either public defenders or court-appointed attorneys represent their clients?" the report asks.
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Better pay for court-appointed lawyers would allow them to spend more time preparing for cases, defense advocates say, and discourage them from urging their clients to plead guilty. Lawyers handling felonies with a potential prison sentence of 20 years or more, including most murders, are paid a maximum of $1,096. Those representing defendants charged with crimes that carry sentences of fewer than 20 years have a cap of $395. Misdemeanors and juvenile cases are capped at $112. The average pay to a court-appointed Virginia lawyer is $245.
Most of my income comes from court appointed work; theoretically, this is paid at $90 a hour but the caps listed above usually make the pay rate irrelevant. The fees definitely need to be fixed because the caps are at the very least half of what they should be. Because of the pay scale I do have to take a certain amount of cases to make ends meet. However, I have never urged someone to plead guilty just so I can move on to the next case - that insinuation is just plain insulting. In fact, I have gone to trial several times when I knew the trial would lead to a significant loss of money. Anytime someone wants a jury and he's charged with less that three felonies I know that a large portion of my time will be gratis. If the trial is complex I know that a lot of time will be gratis even if there are 5 or 6 felonies. Other attorneys do the same thing. Yesterday I was speaking to a fellow attorney who has put already put 20 hours into a non-capital murder trial (capped at $1096) and she hasn't even had the preliminary hearing yet.
What are the effects of these low pay scales? In my case it means I don't have a secretary or an accountant. I spend a lot of time doing by rote paperwork (typical discovery motions, etc.) and trying to keep on top of the business. I also spend large amounts of time in court or at jails. This means that my clients don't get any kind of handholding. I contact them when there is some significant occurrence in their case. They can come by and see me on any Friday during my open office hours (2-5pm). Other than that there isn't a whole lot of contact. I'm doing the necessary legal work in their case; I just don't tell them over and over that I am.