Wednesday, December 06, 2006

Simple economics: Do attorney fee structures retard right to jury trial?

Are fee rates that value pleas over dismissals retarding defendants' right to a jury trial in Bexar County?

An anonymous commenter to this Grits post pointed to a situation in San Antonio that other commenters have mentioned since I began this blog, always anonymously (could be the same person, I guess), but persistently and with seeming authority. I've never had time to track it down and can't vouch for its accuracy. But if true, it's a damning indictment of Bexar County indigent defense:
In Bexar County felony appointed attorneys are routinely paid substantially more for guilty pleas than for dismissals. The payment rules are unethically contingent upon result, with an unfavorable result being rewarded.

Bexar misdemeanor attorneys are paid 100 for a quick instant plea, or 100/day for a trial. This is the same fee they were paid in 1986, when a volume misdemeanor appointed practice was possible. Now there is one case at a time.

Many Bexar attorneys know that their role is to be a laxative for the docket.

Does anybody from San Antonio have firsthand knowledge or documentation that can confirm BexarlyJustice's figures for attorneys fees? The idea that a county would pay more for pleas than dismissals implies an economic incentive NOT to pursue the defendants' rights in court - if you get the same fee for a 20 minute plea bargain or a day-long jury trial, what private attorney (who after all is a small businessperson) could consistently afford to choose the jury trial?

Do other counties have similar fee structures? Let me hear from you working attorneys out there. Can anybody provide documentation of counties whose criminal defense lawyer pay structures incentivize pleas over adjudication? That would substantially diminish defendants' right to a jury trial - as a matter of practice, certainly, if not as a matter of law.

UPDATE: One of the state's leading experts on the subject, Andrea Marsh from the Texas Fair Defense Project emails with this response:

I would bet that the plea vs. dismissal disparity you discuss in Bexar is dismissals w/o trial rather than dismissal upon trial. For example, my understanding is that in Travis the flat rate for a non-trial dismissal is less than the flat rate for a guilty plea, but that if you got a dismissal at trial you’d be paid regular trial rates which are more than the plea rate.

So it’s not necessarily that the rates favor pleas over trials (though that certainly could be the case if you flip fast pleas and get paid the same as someone who really works up the case), but that judges and defense attorneys don’t see eye to eye on what goes into obtaining a dismissal. Defense attorneys will tell you that it takes them a lot more work to get the DA to agree to a dismissal than to a plea, whereas judges seem to think that dismissals occur as the result of unilateral DA case file review – the DA decides that the police didn’t send them a good case, and the low flat rate for the dismissal is sort of an inconvenience fee for the defense attorney who got appointed to the case and maybe interviewed the client but didn’t really have to do much work.

This latter view of how dismissals come about is echoed in complaints we sometimes here about the Texas Fair Defense Act requiring appointment of defense counsel “too fast,” i.e. before the DA has even decided whether to proceed, resulting in unnecessary attorney expenses in bad cases that the DA will reject anyway. The Texas Task Force on Indidgent Defense has tracked those numbers, though, and not that many cases really fall into that category. And before the FDA, when many counties did wait until the DA accepted a case before appointing counsel, defendants often spent months in jail without representation because in some counties the lag between arrest and indictment/information can be quite long (due to delays on the police or the prosecutor side of things).

One thing to look at is speeding up the police and DA review prcesses, so that bad cases are identified and dismissed quickly, before significant defense expenses are incurred. The Task Force did a recent study on this, which should be on their website. (Also, note the high DA rejection rates in at least some of the counties. El Paso’s was 19%. Better police training to reduce the number of bad cases that enter the system is something else to look at.)

On the fee side of things, one approach might be to distinguish between cases dismissed because the DA rejects them and dismissals that are obtained after the prosecutor accepts the case. A lower flat rate may make sense for the former (though I would argue that in systems where police/DA review is slow, the defense attorney still has an obligation to work up the case while waiting for prosecutorial review), but the current fee structure in Travis and Bexar doesn’t make sense for the latter category of cases.

A valid argument defense attorneys can raise against the suggestion that dismissals before DA acceptance should be paid at a lower rate: sometimes the DA decides not to file because of work done by the defense attorney, not just because there are gaps in the police file. So even in cases that the DA never accepts, charging lower rates for dismissals than for pleas is problematic and creates bad incentives/potential conflicts between the attorney and client.

Thanks, Andrea. I believe this is the study she refers to. Anybody else with more information on the topic, chime in with a comment or shoot me an email.

NUTHER UPDATE: Here's a slightly different perspective from Kristin Etter, a respected Austin criminal defense lawyer:

I can tell you that from my experience, in the hundreds of appointed cases I have handled, I can think of only 1 or 2 that were dismissed as "bad" cases sua sponte by the DA or CA. The dozens of other dismissals I have received have been the result of tons of work and resetting the case multiple times to investigate, get witness statements, do legal research, etc. In Travis County, they appoint w/in 4-5 days of arrest usually if the person requests. Here is the break down in numbers of what they pay for dismissals vs. pleas:
  • -Felonies: Plea - $350; Dismissal - $200
  • -Misd: Plea - $175; Dismissal - $150
Also, the best time to work a case is early on when witnesses are still available and before they are tampered with by the State. It is also a crucial time because cops will go in and get a confession before counsel is appointed and they really take advantage of that window knowing the person is not educated enough to invoke on his own. I sometimes think that the cops are in on a conspiracy with the courts to toll the time of an appointment while they go in and get a confession. It is a HUGE disservice to not appoint counsel immediately in the hopes that the DA will sua sponte dismiss - they definitely do NOT do that in Travis County and I can't imagine in other counties either.
Thanks, Kristin, that information helps a lot.


Anonymous said...

With all respect to Andrea Marsh, I believe she may be missing the point, with her analysis about "dismissal upon trial."

Tx. Rule Disciplinary Conduct 1.04 (e) reads as follows: "A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case."

That rule prohibits me from agreeing with any client that my fee amount or fee structure will be dependent upon the result of a case. Arguably, that rule prohibits me from accepting compensation pursuant to the Bexar County compensation schedule.

In my private practice, I cannot agree to a "$1,000.00 fee if your case is dismissed, but only $100.00 if you plea guilty." I would then be subject to discipline. I can have no bonus in my contract for a successful result in a criminal case, it's an absolute rule.

Yet Bexar county does exactly the opposite, paying the bonus for the unfavorable result. The court's fee structure for appointed attorneys acts as an illegal contingent fee. Simply put, the method of calculating the fee is determined by the result of the case. Worse for the client, it is a reverse contingent fee, penalizing a successful result instead of rewarding a successful result.

The policy has cost me thousands of dollars, in cases where the client is "putty in my hands," and the prosecutor offers proposed plea agreements. When my client rejects the proposed plea agreement upon my advice, and I ultimately garner a dismissal, my bill is usually less then half or even a quarter of the fixed fee.

Often times these negotiations happen in the course of a single court appearance, as the prosecutor fishes for a plea, and ultimately relents and dismisses. Even if it takes two or three court appearances to persuade the prosecutor to dismiss a case, at $75.00 per appearance vs. A minimum $400.00 fixed fee, I'm losing money and time. For many young attorneys, the math is constantly nagging at their financial subconscious. If my client's a jerk, maybe it's easier to just plea the case, and get paid more.

This hasn't always been the case. For many years, Bexar allowed attorneys to choose between the rate basis or the fixed fee basis, regardless of the outcome of the case. The fixed fee was available for a either a quick plea, or a quick dismissal. Without the financial disincentive, the attorney would focus entirely upon his client's best interests.

Then the rule was first changed to prohibit fixed fees only on pre-indictment dismissals, or cases "rejected" by the district attorney.
Under that rule, if a case were indicted, and then subsequently dismissed, you could still choose the fixed fee or rate basis calculation.

Some attorneys then made no effort to garner pre-indictment dismissals. They instead waited for the ham sandwich to be indicted, and only then pitched the dismissal argument to the prosecutor. This left an indictment on the client's record, which would likely not be subject to expunction. Pre- indictment dismissals are usually far more likely to be expungable, so the incentive for passing a case for indictment in order to receive a fixed fee upon the dismissal was not good for the client.

But wait, it got worse.

More recently, the rule was amended to apply to all dismissals, even those occurring after indictment. No longer can an attorney opt to receive the "fixed fee," unless his client opts to enter a plea, regardless of when the dismissal is granted.

The main problem with disallowing fixed fees on dismissals is that the rate basis permits an attorney to bill a maximum of $75.00 per non-trial routine court docket appearance, no matter how much time is spent in court.

Felony cases are nearly always set for several pre-indictment appearances. Prosecutors nearly always make "standard offers" pre- indictment. The appointed attorney then must advise his client about those waiver of indictment plea-bargain offers.

At any pre-indictment setting, if the defendant waives indictment and enters a plea, the attorney can then bill the full fixed fee, otherwise, he may bill up to $75.00 for his appearance, if the case is rejected.

Recently, I was appointed to represent a young first offender charged with possession of a controlled substance, penalty group 1, 4-200 grams, with intent to deliver, a first degree felony. The fixed fee for that case upon a plea would have been $ 850.00.

At the first appearance, it became evident that the State did not have a case. The defendant was in a car where the drugs were found, but it was not his car, he made no statement, and the drugs were hidden within the vehicle. I felt very confident that the prosecutor could not prove the case.

The prosecutor first offered to remain silent, then next offered probation, and finally offered deferred adjudication, before finally relenting and dropping the case.

I had done some legwork before the first appearance, so I was permitted to bill a whopping $225.00 instead of the $850.00. It cost me $625.00 to do the right thing. I am certain that there are other lawyers who would have easily sold this kid on deferred adjudication in a heartbeat, and nobody would have been the wiser. Hell, the kid would have likely thought he got a good deal! Meanwhile, I was penalized $625.00 for being honest, ethical, diligent and competent enough to recognize the issue.

it should shock the conscience that any attorney will ever be in a position where he will be paid substantially more for securing an unfavorable result for his client.

Assessing a pecuniary penalty to any appointed attorney for obtaining a competent and successful result undermines our adversarial justice system. I am absolutely sure that there exist many cases in Bexar County where the result was substantially influenced by an attorney seeking a fixed fee. Even one such case should be too many.

On another topic, there's a misdemeanor judge in Bexar County who has a written policy posted in his courtroom that he will not grant any prosecutor's motion to dismiss, until the defendant pays the appointed attorney personally. This ostensibly protects his budget, so that he can brag that he spends less on appointed attorneys than other judges.

The problem with his policy is that the source of the fee is illegally contingent upon the result. If your client pleads, then the judge signs your voucher immediately, and the county pays you $100.00. You do not have to come back.

If the case is going to be a dismissal, then the indigent client will always need time to come up with the $100.00, so the case is reset. Often times, the indigent client comes back to court, needing even more time, again and again. Each time the judge refuses to sign both an order granting a motion to dismiss and a pay claim. If you want your pay claim signed, then you better plead the client.

What's remarkable is that he makes every defendant sign a document arbitrarily converting the appointment to a "interest of justice" appointment, instead of an appointment based on indigency. He then notifies each defendant in writing of his no-dismissal-unless-you-pay-the-attorney- directly arrangement. He even has it posted in the courtroom.

The effect is that many attorneys don't seek dismissals in his court, which in the end also increases his statistical bragging rights.

I hate typing.

bluedog said...

It seems the payments to the court appointed attorneys are very low especially for having a case dismissed;but,it seems that the attorney would want to get a dismissal to move on to better cases for paying clients.Are public defenders on salary, or are they paid the same way?Williamson county makes the parents of juvenile offenders [defendants]pay for court appointed attorneys.The kids were getting very long sentences that did not seem to fit the crime committed 10 years ago.

Anonymous said...

How would the judge know whether a court appointed attorney got paid the 100 dollar fee for dismissal of the case?Just to be done with it,and why would the attorney not just claim to have been paid? Are some attorneys making that little money?They seem to charge some high fees for cases they do get paid for.Maybe this has something to do with it.Where are the billions of dollars in surplus being spent the state claims to have?