Managing Attorney Case and Work Loads to Improve Indigent Defense

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Tuesday, November 4th, 2014
Managing Attorney Case and Work Loads to Improve Indigent Defense

Most would agree that Texas’ indigent defense delivery system has improved markedly since the passage of the Texas Fair Defense Act in 2001. Many more defendants are benefiting from the early appointment of counsel, fee schedules have been increased in many places, and counties are implementing a variety of new strategies to more effectively provide these services. In spite of these advances, concerns remain about the substantial caseloads some attorneys take on and their effect on the quality of legal representation provided. Even the best attorney will be unable to provide competent representation to each client when trying to represent too many people.

The 83rd Texas Legislature sought to address these concerns by increasing our overall understanding of the caseloads being handled by defense attorneys. HB 1318 requires new reports from both attorneys and counties regarding the caseloads of attorneys who accept public appointments. The reporting requirements will benefit both policymakers and the bar. The information will allow policymakers to make better decisions on the best way to manage their appointment processes. It should also benefit the bar by raising awareness of the work attorneys do and help identify situations in which low pay may be creating pressures on some defense attorneys to accept more cases than they can reasonably handle. It may also help pinpoint places where the wheel system may not be working as designed and further investigation may be warranted to ensure that appointments are being made in a fair, neutral, and nondiscriminatory manner.

Charged with implementing the new requirements, the Texas Indigent Defense Commission’s staff met with a variety of stakeholders, including criminal defense attorneys, to do so in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting

HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure:

An attorney appointed under this article shall: . . . not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney’s practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, all attorneys handling indigent defense cases are required to annually report for the preceding fiscal year (October 1st to September 30th) the percentage of the attorney’s practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in each county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments—only indigent criminal work in state and county courts.

With significant input from TCDLA leadership, the Commission adopted a form and reporting instructions.1 The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create a web-based attorney reporting portal. This will enable attorneys to report their work in all counties in which they did appointed work at the same time. This portal was developed to make the reporting as simple as possible for the individual attorneys. The report will go directly to the Commission but will be accessible by the counties. Although some counties may permit the use of the paper form, the attorney portal will provide a streamlined way for attorneys to report and for the information to be collected.

Attorneys are not required to use a particular methodology to complete the practice time report. You may do so by using time records, if you keep such records. Others may use a case-counting methodology or some other method. All you will need to do is indicate which method(s) when submitting the information on the attorney portal or paper form.

The Commission, working with TCDLA, also developed a worksheet that attorneys may use to help calculate the practice time percentages. The worksheet is simply a tool to help you allocate your practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.2

Penalties for failing to submit a required practice time report by the October 15th due date are not contained in the legislation, although the judges handling criminal or juvenile cases in each county may prescribe one. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This procedure is analogous to the current requirement to report your annual criminal and juvenile law CLE hours.3

New County Reporting of Attorney Caseloads

HB 1318 included the following provision in Section 79.036, Government Code:

Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014, the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to this new report, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (juvenile, capital murder, adult felony, adult misdemeanor, juvenile appeals, felony appeals, and misdemeanor appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.4

For the first time in Texas, these new reporting requirements will provide judges, legislators, the bar, and the public a clear picture of the caseloads handled by attorneys who accept public appointments. Until now, even the best local systems could only provide information on cases handled by attorneys within a single county or at most a single judicial district encompassing more than one county. These reports will provide greater transparency of the caseloads being carried across all counties. By combining the case figures from each county with the practice time information submitted by each attorney, there will be a better understanding of the resources being allocated to the representation of each indigent client.

The legislation discussed above also directed the Texas Indigent Defense Commission to conduct a weighted caseload study to determine the time required to represent indigent defendants. This study will be published by January 1, 2015, and will provide policy makers with another source of information to inform our understanding of current court appointed criminal caseloads as well as how this impacts the effective representation of the indigent client.5

Endnotes

1. The attorney reporting form and instructions may be viewed at the following address: http://www.tidc.texas.gov/media/2157/DefenseAttyReportingInstructionsFor... (there are also links on the TCDLA website).

2. The optional attorney practice-time reporting worksheet may be viewed at the following address (or the TCDLA website): http://www.tidc.texas.gov/policies-standards/attorney-caseload-reporting... .

3. You can see what the courts have done in each county by reviewing the local plan: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

4. To learn more about the county reporting process, see the IDER reporting manual on pages 13–15 at this address: http://www.tidc.texas.gov/media/25884/FY2014IDERManualFinalRevised0912.pdf .

5. To learn more about this research, please see the article in the November 2013 issue of the Voice for the Defense and visit the study website at http://texaswcl.tamu.edu .