It has been almost 60 years since the U.S. Supreme Court unanimously held in Gideon v. Wainwright that every criminal defendant in a felony trial has the right to a lawyer even if they’re too poor to hire one. The right to counsel is so ingrained in today’s society that it’s almost universally accepted as a good thing by people across the political spectrum. Of course, the right to “zealous” advocacy only works if competent attorneys actually step up to the plate to provide it. I’m proud to be one of those people. I’ve represented indigent defendants for 16 years as both a public defender and private attorney, and it has been one of the defining aspects of my professional life. So it’s with a heavy heart that I removed my name from the court appointed list this week. Why do you ask? Because the pay structure is no bueno.
Most people have no clue how attorneys are paid from court appointed work. Here’s my best effort to quickly break it down without making your eyes bleed. In circuit court, attorney fees are capped at $158 per misdemeanor charge (it’s $120 in General District Court). Fees are capped at $445 per felony charge unless the charge carries more than 20 years in prison in which case it’s $1,235 per charge. So for example, if I represent a client on one count of manslaughter, the fee cap is $445. If I represent a client on one count of 1st or 2nd degree murder, the fee cap is $1,235. Court appointed work in the Court of Appeals and Supreme Court pays even less. An attorney usually makes $400 for an appeal in the Court of Appeals (and a whopping bonus $100 to drive out for the oral argument); and then between $400 and $1200 in the Supreme Court depending on the complexity of the issue (I’ve typically been given between $400 and $850 no matter how complex the appeal).
In order to try to pull back the curtain on how this works in real life, I’ll give you the full monty transparency. In 2021, I represented 6 court appointed clients in various stages of appeals in the Court of Appeals and Supreme Court of Virginia. I was paid a total of $2,700 for that work. I represented 6 court appointed clients in misdemeanor cases and made a total of $1,358. I did a little bit better on felony charges where I represented 22 people and made around $21,000. Just for point of reference, “When the Virginia attorney general’s office hired outside lawyers a year ago to defend the state’s election laws, it paid those lawyers up to $450 an hour, apiece” to the tune of total fees of $523,000. “Meantime, private lawyers doing work for the Virginia Retirement System were paid up to $725 an hour. Outside counsel working on ‘privatization matters’ for the Virginia Department of Transportation were paid up to $690 an hour.” Taxpayers footed at least $784,900 in legal fees to defend former governor Bob McDonnell against public corruption charges. Nobody is asking for court appointed attorneys to get disgusting piles of Scrooge McDuck money like this, but it’d sure be nice to make enough money to afford dinner at Applebee’s once in awhile.
A 2005 report by the American Bar Association found that Virginia’s court appointed fees were among the lowest in the nation. There has been no signficant change since then. The 2021 annual report published by the Virginia Indigent Defense Commission again found that Virginia’s rates remain among the lowest in the nation. While all the court appointed fees are ridiculously low, the court appointed fees in the appellate courts are the biggest kick in the nuts. An appeal to the Court of Appeals can easily constitute a full week’s worth of work if not more. I have to order all the proper transcripts, ensure they’re timely filed, read all the transcripts (sometimes multi-day jury trials), determine all possible appellate issues, go back and highlight the relevant portions in the transcript, research and write what is essentially a legal term paper, go back and provide citations to the transcript, ensure that all filing deadlines are met, write a second response brief to the Commonwealth’s brief in certain circumstances, and drive out to a courthouse in another jurisdiction at some point to wait around for hours before making oral arguments.
The conclusion I’ve reached is that by continuing to be on the court appointed list, I’m part of the problem. By accepting $400 to do 40+ hours worth of complex legal work, I’m sending the message that paying attorneys less than minimum wage is a-okay. I’m here to say that it’s not, it’s not cool at all, bro. I’m a public defender at heart, and very much a businessman second. But I still need to be able to provide for my family, and the simple fact is that I’m losing money by being on the court appointed list. It’s taking money and resources away from all of the things that are necessary to sustain and grow my firm. My goal has never been to build a mega-practice or to be able to drive the fanciest car. I truly don’t give a shit about any of that, but I do care about being treated with a modicum of respect and being able to make a living. There is an expression that “budgets are values.” In this case, the state’s budget for court appointed defense expresses that they value our work at approximately the same level of a turd swirling the bowl.
This has been a large bitch and moan fest, but I’m hoping that if enough court appointed attorneys stand up and say “to hell with this,” it’ll eventually move the needle. I’m encouraged that when Bassel and I left the Public Defender’s Office, and we explained to local politicians that the pay gap between PDs and prosecutors was a major reason why, they actually listened to us. We’re far from the only reason, but we’re part of the reason that the Virginia Beach Public Defender’s Office now receives $500,000 annually in salary supplements. The moral of the story for me was that refusing to go along with a broken system is sometimes necessary in order to change it. So today, I bid adieu to the court appointed life, and I encourage others in a similar boat to follow suit.
Taite