Monday, November 29, 2010

Iowa Supreme Court invalidates fee-cap for appeals

Hat tip to Law of Criminal Defense for posting on this Iowa Supreme Court case holding that a fee cap of $1500 per appeal for criminal defense appeals is unconstitutional under a structural ineffective assistance of counsel approach. The opinion does a nice job of relating some of the economic realities of persons who do this kind of work and explaining the impact of these realities:

First, we examine what the fee cap would mean for a full-time attorney providing representation in criminal appeals. Under the NLADA standards, a lawyer who handles appeals should limit his or her workload to twenty-five appeals per year. Standards for the Defense, Standard 13.12. Under this standard, a full-time lawyer working pursuant to the appellate defender‘s rule could receive a gross income of $40,000. From this figure, the attorney must pay for overhead which, according to the Iowa State Bar Association survey offered into evidence in this case, was, for the average Iowa lawyer, in excess of $70,000. Even assuming that a criminal defense lawyer working on appeals would have less overhead than the average Iowa lawyer, it seems clear that it would be very difficult for a lawyer working under the state public defender‘s rule to earn a living.

Second, we look at this case by considering the hourly rate paid to Simmons for what the record establishes were reasonable and necessary services. His hourly rates for the cases amount to $12.56 for Millam‘s appeal and $12.27 for Cromer‘s appeal. Over the long run, payment of such hourly rates to appellate counsel will have a chilling effect on qualified lawyers taking this work and would discourage thorough appellate preparation.

Third, we use our own expertise in considering the impact of a $1500 fee cap for appellate work. No one can dispute that competent appellate representation requires thorough mastery of the underlying facts, communications with the client, research into applicable legal issues, consideration of which issues to present on appeal, and then careful writing and rewriting. A hard-fee cap of $1500 simply cannot provide adequate compensation in many cases, including the two cases at issue here.

The implications of the inadequate compensation framework on the provision of effective assistance of appellate counsel are multiple. First, inadequate compensation will restrict the pool of attorneys willing to represent indigent defendants. Second, the low level of compensation threatens the quality of indigent representation because of the perverse economic incentives introduced into the criminal justice system. Low compensation pits a lawyer‘s economic interest (recall Lincoln‘s metaphor that a lawyer‘s time is his stock in trade) against the interest of the client in effective representation.

Ecomonic times are tough for state governments, but they cannot choose to prosecute without adequately (not just minimally) funding the defense. If state governments want to reduce their indigent defense costs, they have to reduce the rate of prosecution/incarceration (or, as I've said before, at least the rate of prosecution/incarceration of poor people). It's that simple.

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