Keep On Keepin’ On…

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Wednesday, March 12th, 2014
Keep On Keepin’ On...

We signed up for a reason. It is not about the money. We are severely underpaid to begin with. We accept that. We signed up because we believe in an ideal. That everyone—no matter financial means, race, creed, education, lifestyle—deserves the best representation possible. We fight injustice—even systemic injustice. We do not differentiate between the hours or the effort we pour into retained versus appointed cases. We lose sleep over all cases just the same. Our families know the sacrifices we make—the time, the stress, and that we frequently dig into our own pockets. We know these people depend on us. We are all that stands between them and the complete and often abrupt loss of liberty and freedom, between them and the infinite wealth, resources, and power of the State. We know we must stand firm. We believe in justice for all. We are court-appointed lawyers.

And we are officers of the court. It is reasonable to expect to be paid (albeit at the built-in reduced rate) for work performed. That expectation is not unique to this profession. We swear to the time designated and work performed in our fee vouchers. So what does it say when a judge slashes our bills? The message is loud, clear, and unacceptable. It says we lied. We lied about the hours designated or the work performed or both. Think about it. Is there any other party who the court blatantly calls out as a liar... other than the accused, of course? It also says we should not have worked so hard on the case—that we should not have invested so much time, that it is not worth it. We should not have done more than the constitutional minimum. It is insulting—insulting to us, to our clients, and to the system of justice. It is a slap in the face.

Perhaps before a judge or an administrator slashes a bill, the lawyer should be consulted. If there is a question about the work performed or time expended, perhaps the lawyer should be given a chance to explain if necessary. To explain yes, it is possible to have performed all of the listed work because our hours are not just 8 to 5 Monday through Friday. To explain that just because the courthouse is closed for the weekend or a holiday does not mean we are not working. To explain that yes, we have sacrificed sleep and—most importantly—time with our families to perform this work. After all, would not a judge want that same courtesy?

Certainly, there will always be budgetary constraints in any governmentally funded program. We are not ignorant to that fact. The unfortunate reality is that most of us have become accustomed to our bills being cut; that it is just a given. But let us think about what message that sends to us, to the people we represent, and to the public. It is a message that screams we are not worth it. Our clients are second-rate to those who are blessed enough to have money. It is no wonder court-appointed lawyers get a bad rap.

And it is no wonder that it is hard to continually find experts who will agree to work on court-appointed cases. Again, money is the issue. Always. And it is never easy or fun to ask for money. To have to beg for money from a closed fist, to be told no. However, it has to be done. We have an obligation to ask for adequate money for experts and investigators when the case calls for it even if we have been retained. When we do not get it, we have an obligation to ask again and to preserve the record. When we have used it all and still need more, we are required to ask. We should not be made to feel bad about it. And we should not expect to be told “no.” After all, this is the constitutional minimum for effective representation and due process. Judges who know find the funds and a way to make the budget work. We all need to be asking. Repeatedly. Otherwise, a fair trial and justice will remain luxuries that only the wealthy can afford.

The problem with all of this is that the real bottom-line impact is not on the court-appointed lawyer but on indigent people accused of crimes. Why would a lawyer agree to take court appointments and do a good job—the same job as he would do for a paying client—knowing that the pay will be de minimus, that most of the time you will basically lose money by taking these cases or work for next to nothing, and that you will constantly be told you should not have worked that hard or much?

Every time we fill out and turn in a bill, we have a choice to make. Do we record all of the time we have spent on a case with a full awareness that we will not be paid for that work, or do we preemptively cut our bills ourselves in hopes to appease those in power? I say be honest—record all of the time you have spent on a case. It can only benefit all of us. What that tells a judge is what actually goes into a case to do it right—that justice is not cheap. It tells the judges that we spend the time, that we are willing to work hard—equally hard—for all of our clients. It will only improve our reputations with our colleagues, our clients, and judges.

Is there incentive for us to perform our absolute best despite consistent underpayment? Yes. There is personal pride and satisfaction in a job well done. We all also have reputations to uphold. After all, in our chosen profession our reputations are everything. These intangibles mean more than money to us. We are not all hall-of-fame lawyers, but we do more than the constitutional minimum. And judges should embrace that because it betters the entire justice system. We all do our best, everything we can, every time, in every case. We will never be satisfied with the constitutional minimum. We are defenders; the government has to go through us. We do it because we know we are often the very last and only ones to stand for people when all too often their own friends and families have abandoned them. We stand.

The problem with an indigent defense plan that caps a lawyer’s compensation at a minimum dollar amount is that it discourages good lawyers, diligent lawyers, hard-working lawyers, smart lawyers from taking appointments. It encourages lawyers to plead out court-appointed cases. After all, why spend the time and effort if you do not get paid for the time and energy a trial takes if it is easier and quicker to sign plea papers? In turn, that encourages judges to appoint those lawyers who take appointments for the quick check.

It is upsetting and insulting to have your bill slashed. But it is even more frustrating that the result of this system is to discourage the good, smart, diligent, hard-working lawyers from taking appointments to the detriment of all of those people who are financially unable to afford a lawyer on their own. Shame on any such system and the individual players who contribute to it. We refuse to contribute to a system so eager to plead everyone out, and we believe even the poorest among us deserves a good, hard-working defense lawyer who is not just concerned with the bottom line. Satisfaction with the status quo or constitutional minimum is just not in our DNA. To us, it is not about the money; it is about the ideal.

As my dad always said, keep on keepin’ on...