What is a Court Appointed Attorney?
A court-appointed attorney is a lawyer hired by the court to either represent a client when he or she cannot afford the legal services, or to represent the client in non-adversarial matters. In criminal cases, for example, there may be instances, such as the lack of a viable defense, in which a defendant does not require an attorney. Courts have discretion in appointing attorneys for criminal defendants in these circumstances .
In state cases, defendants are entitled to court-appointed representation when they, through affidavits, show that they are unable to pay for private counsel. This usually involves a combination of factors, such as income and expenses, number of dependent children and spouses, type of employment, and other debts. Once a defendant is determined to require representation, courts typically use a sliding scale to determine if the defendant must repay the cost of representation (where allowed).
How Pay is Determined for Court-Appointed Attorneys
Generally, the state appoints attorneys to represent indigent defendants and it pays those attorneys a flat fee per case. However the actual amount paid per case varies based on a number of factors, including whether the case is a misdemeanor or felony, whether the defendant is in jail, the attorney’s level of experience, whether the defendant is competent to stand trial, whether other issues such as mental health or competency are raised, and whether the attorney has to be court appointed multiple times.
Depending on the type of case, the jurisdiction, and whether the defendant has assets that can be used to pay for counsel, the session rate for court-appointed attorney work can vary. For some cases, such as early disposition, the attorney may be paid a session rate of $75 but if the case proceeds to trial the attorney may be compensated $150-$250 per hour.
In most cases, the appointed attorney receives their pay at the end of the case, once the case is closed. However this is not guaranteed.
For example, in Cambria County, Pennsylvania, appointed counsel receive compensation at the following rates [CUSTODY CASES] (effective 1/1/2015): (a) $350.00 for court appearances; (b) $100.00 per hour for research, office conferences, and interviews related to that case; and (c) $20.00 per 15 minutes for travel to and from the case and/or an interview.
For non-custody cases, the payment rate is as follows: (a) $40.00 for appearances in court or at a P.O.T.(Postponement) date, (b) $25.00 per hour for research, conferences, and interviews related to that case, and (c) $20.00 per 15 minutes for travel to and from the case and/or an interview.
Court-Appointed Attorney Pay Factors
A variety of jurisdictions use their own formulas to actually determine just how much money they’ll pay court-appointed attorneys. These calculations usually take into account a few critical factors: The resulting figure determines just how much compensation the particular court-appointed attorney will receive. Here’s a brief look at how these types of calculations work in a few states. For example, the state of Virginia provides some guidelines for its attorneys who take on court-appointed cases (they only pay $30 an hour). In a case that takes less than eight hours (including all hours in court), that attorney can receive a maximum payment of $225 (assuming the trial demands 7.5 total hours of service). If the case takes longer than eight hours, the attorney gets $125 per hour. There are caps on hourly limitations and how much a court-appointed attorney can expect to receive per year. Utah courts also have a system in place for determining how much money court-appointed attorneys might earn per case. For example, Davis County pays $500 per court appearance (versus $50 per hour), with appearances exceeding one hour not earning an attorney any additional money. (The Utah court site notes that Davis County specifically has "struggled for years with the need to provide effective representation for indigent defendants while not placing an excessive financial burden on the Davis County taxpayers.") California sees things a bit differently, with county courts actually determining the level of compensation for court-appointed attorneys who take on felony cases. In addition, many of California’s counties have taken it upon themselves to establish their own compensation rates. Los Angeles, Long Beach, Sacramento, San Diego, San Francisco, and Santa Clara counties all have specific amounts for hourly salary and/or fixed fees that differ from the California state rate. New York designates criminal cases (felony, misdemeanor, and appellate) to attorneys based on a yearly pay schedule, with each attorney likely receiving a flat fee at the start of a year. These amounts cover all criminal defense services performed, regardless of complexity. For instance: Each tier also has a different "total annual compensation" amount that goes up for attorneys whose certifications exceed a certain number. For example, certified attorneys receive $95,000 in 2010, increasing in increments of $30,000 through 2015 (when the cap was set at $290,000). Attorneys must also meet a monthly maximum of 130 hours, as the state caps that figure at 10 hours in a day and 3.75 hours in an evening. These are only a few states, with others using both completely different methods and drastically different amounts to compensate court-appointed attorneys.
Comparative State Attorney Fees
The national averages are just that – averages, and they can be skewed significantly by a few states with extremely high or extremely low compensation. For example, Nebraska and Alabama are two states whose rates are so far below the average that they drop the rate down significantly. The following table provides a state-by-state comparison of many of the rates for court-appointed attorneys: Alabama . . . . . . . . . . . . $40/hr. (Compensation for all court-appointed attorneys is currently capped at $1,200 a year.) Alaska . . . . . . . . . . . . . $125/hr. (Criminal cases only. Mandatory $1,000 per month cap on compensation.) Arizona . . . . . . . . . . . . . $35/hr. for 75 cases or $19/hr. for 20 cases. Arkansas . . . . . . . . . . . . $50/hr. in capital cases and $60/hr. in trial level cases. California . . . . . . . . . . . . $30/hr. in criminal cases and $125/hr. in CJA cases. Colorado . . . . . . . . . . . . . $78/hr. in capital cases and $50/hr. in non-capital cases. Delaware . . . . . . . . . . . . $75/hr. in criminal cases. Florida . . . . . . . . . . . . . $10 per county per day, plus $0.35 per mile (limited to $1,000 per year) Georgia . . . . . . . . . . . . $40/hr. for indigent defense and $25 to $40/hr. in private cases Idaho . . . . . . . . . . . . . $50/hr. in criminal cases Illinois . . . . . . . . . . . . $100/hr. for conflicts panel Indiana . . . . . . . . . . . . $70/hr. in felony cases Kentucky . . . . . . . . . . . . $50/hr. statewide and $90/hr. in Jefferson County Maine . . . . . . . . . . . . $70/hr. in serious criminal cases Michigan . . . . . . . . . . . $50 in state court criminal cases Mississippi . . . . . . . . . . $75 in felony cases Nebraska . . . . . . . . . . $100/hr. in capital cases and $80/hr. in non-capital cases New Hampshire . . . . . . . . $120/hr. New Jersey . . . . . . . . $50/hr. for appeals, and $150/hr. when court appoints attorney in representation on remand (in capital cases, the hourly rate is $200) North Carolina . . . . . . . $60/hr. for misdemeanors, and $100/hr. for felonies Oregon . . . . . . . . . . $100/hr. Pennsylvania . . . . . . . . . $60/hr. in capital cases and $50/hr. in felony cases South Carolina . . . . . . . $40/hr. plus daily fee of $150 per day (limited to $1,200 per year) Tennessee . . . . . . . . . . $75/hr. in capital cases and $30/hr. in all other cases Texas . . . . . . . . . . $75/hr. ($100/hr. in death penalty cases)
Issues Facing the Court-Appointed Attorney
The issues relating to compensation for court appointed attorneys, particularly for indigent clients, are nowhere near as simple as they may first appear. For one thing, court appointed attorney pay is frequently the same amount or less than an attorney’s customary hourly rate. For example, in many jurisdictions, court appointed attorneys are capped at a rate of $50 per hour, regardless of the attorney’s experience. This can lead to significant issues. Even when appointed to represent a juvenile in a state case, there are often numerous court appearances, telephone calls with the client, criminal and other documentation review, letter writing, witness interviewing, etc. If a licensed New York attorney is being paid $50 per hour to represent a juvenile in a juvenile court, for example , it would take far more than one hour of work per case. Considering that an attorney’s customary rate may be anywhere from $250 to $750 per hour, which is very common in New York City, a case that is paying $50 per hour will net out at a loss after discomfort, even though the case may require significant time and effort by the attorney.
There is also the matter of quantity of cases. As stated above, a typical court appointed attorney reputed to do "a lot of work" is likely to have a court calendar of several hundred new cases per month. That is as much work, if not more, than the average trial attorney handles in an entire year. And this work is obviously in addition to the court appointed attorney’s regular practice and legal work, such as private representation in criminal, civil and family law cases.
Impacts on Quality of Counsel Representation
The level of compensation, relative to complexity of the child welfare matter, is a factor in quality. The limited rates do not promote adequate legal representation that requires: (1) familiarity with the child welfare system; (2) an understanding of family dynamics; (3) understanding of legal issues; (4) an understanding and mastery of evidentiary rules; (5) familiarity with medical and psychological or therapeutic concepts; or (6) case preparation and litigation skills. All of these skills are necessary for effective representation of parents in Dependency actions and are necessary for effective representation of children with complex needs (children with disabilities or complex emotional and child development needs). The system backslides when compensation is not of an amount so as to attract attorneys who have the skills and training necessary to immediately step into a case and represent the client effectively.
The compensation issue has been subject to recent reform efforts. However, these reforms have not yet made their way into to practice. In 2009, the California Legislature commissioned the Administrative Office of the Courts (CA AOC) to undertake a study of dependency counsel. As a result of that process, the CA AOC identified the following problems: (1) a lack of standards for both contract and panel attorney standards and qualifications; (2) inadequate oversight and management of counsel; (3) inadequate funding for representation and support; (4) inadequate and inappropriate appointment practice; (5) rotation of counsel without cause; (6) lack of training and support for newly appointed counsel; and (7) a lack of uniform standards and guidelines to cover these areas. The California AOC recommended the following reforms: (1) development of standards and requirements for contractors; (2) enactment of a state statutory right to counsel in dependency matters; (3) implementation of a minimum compensation level for counsel; (4) creation of a mechanism to ensure funding of state mandate obligations; (5) development of a case weight system and plan for caseload reduction; (6) establishment of a database to capture case and demographic information for all court-appointed attorneys; and (7) establishment of fixed reimbursement rates to enable courts to budget adequately for dependency counsel compensation and support.
Conclusion and Implications
To summarize, court-appointed attorneys are compensated on a per case basis. Courts have discretion to set and pay fees for these attorneys. Compensation rates vary across states but have traditionally been low for various reasons. There is now enhanced public scrutiny of all areas of government expenditure, including how courts spend on attorney fees. Some courts have begun to experiment with alternate methods of paying court-appointed attorneys and are actively looking at ways to cut costs and make the payment process more efficient. Many states’ compensation schemes are in flux, as courts and state legislatures seek to address the issue of compensation for appointed counsel. Often times the manner of payment can vary depending on the type of case for which the attorney was appointed. For example, appellate courts continue to handle the problem of underpaid, overworked court-appointed appellate attorneys in different ways . In some states, appellate attorneys are now paid on an hourly basis, in others the payment scheme has changed drastically in recent years and other states have retained their same compensation model. This issue goes not only to how much appointed attorneys should be paid, but also to what work an attorney should be expected to perform. As voiced by the Maryland Court of Appeals, simple work does not always require legal knowledge. Queries into whether such work requires expertise of counsel, however, can lead to abuse as some attorneys inflate hours or bill for more time than necessary. The question remains whether—or to what extent—legislatures will become involved in remedying such issues. There is no doubt that judicial review of attorney billing will continue to take place, though the manner of such review may change as collection attempts become less common. One thing that is certain, is that the issue of compensation for court-appointed attorneys will continue to garner statewide and nationwide attention.