When Sharks Feed Upon One Another
Just how tight is the market for legal fees just now? Tight enough that some private defense lawyers are complaining that too many defendants are being offered the services of a public defender, thus depriving lawyers of the chance to earn a fee.
The Sixth Amendment to the United States Constitution guarantees a person the right to counsel. A person can apply for a public defender by tendering basic information about their income. This application remains confidential and is not shared with the state.
In Connecticut, a person charged with a felony and having three dependents, a wife and two kids, let’s say, is eligible for free counsel if his income does not exceed $44,100. A defendant with three dependents is eligible for a public defender in a misdemeanor case if his income does not exceed $33,075. The only cost to such folks is the $25 application fee.
Determining eligibility is done on an honor system. A member of the public defender’s office interviews a defendant, and then makes an eligibility assessment. No judge reviews a sworn statement. Typically, a judge simply asks whether a defendant is eligible. If a public defender asserts that the party is eligible, a matter usually dispensed with a quick "yes" to a judicial inquiry, the matter is settled.
It turns out the some private lawyers in New Haven, Connecticut, think public defenders are a little too generous with the public fisc. Complaints have been raised. Although the Connecticut Criminal Defense Lawyers Association has not weighed in on the matter in any formal way, I’m told that the trade association has contacted the central office for public defenders statewide to request that income eligibility standards be enforced in an even-handed manner statewide.
There is something unsettling about member of the defense bar fighting over the right to bottom feed. Lawyers griping that some fellow hard-pressed by necessity might be given a break and not be required to cough up a legal fee runs counter to the image of a bar dedicated to lofty ideals. In my mind’s eye, I see a hungry defense lawyer sitting on the courthouse steps, resentfully eyeing the blind pencil salesman’s meager profits.
It is common for public defenders to fudge income eligibility guidelines, especially in difficult cases. Does it make sense to require someone whose defense might depend on time-consuming investigation, or the testimony of an expert, to pony up all his available cash to hire a lawyer? I suspect that many folks at the margin of eligibility get far less in terms of preparation than their cases require. There simply isn’t enough money to go around. I’ve seen public defenders wink at income standards to assure that a defendant gets access to the same services enjoyed by the prosecution. A little larceny in defense of liberty is a good thing.
It is not that work as a special public defender, or assignments from the federal Criminal Justice Act panel, is such a bargain. I was told today by federal judge that there is no money in Connecticut’s CJA coffers. Lawyers accepting such appointments are working for promises just now.
I wrote a piece here earlier in the week about my firm’s contemplated return to a city, given the evaporation of cash to pay legal fees. It’s time, I said, to return to the shadow of a courthouse of two; no more leisurely practice as a country lawyer. I’ve had a surprising number of folks confirm that hard times are all around. Kerplunk seems to the be the word of the day for street lawyers, and those without a place at corporate troughs.
So behold the unedifying spectacle of defense lawyers arguing over whether a person should be given a free lawyer, or required to pony up a paltry fee for private counsel. The sharks are circling in the courthouse waters. But this time, they’re feeding on one another.