f/k/a archives . . . real opinions & real haiku

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This time, the study targets Virginia, decrying rampant substandard legal services given to the poor by assigned counsel. Citing and summarizing A Comprehensive Review of Indigent Defense in Virginia, The Richmond Times Dispatch headline screams “Study finds ‘attorneys do the bare minimum, and often less’ for poor” (by Alan Cooper, 02-02-04). (thanks to SW Va Law Blog for pointing to the article)

Note: Public defenders are salaried employees; assigned counsel are appointed by judges on a per-case basis.

The Times Dispatch article reported that 80 attorneys each handled at least 400 assigned counsel cases last year, and that “Many of those lawyers are sole practitioners supported only by a secretary and voice mail.” [Of course, some don’t have a secretary.] The article quotes the Report as saying:

• “Public defenders and assigned counsel simply do not have the time or energy to spend to try to change the status quo, nor do many even realize how low the status quo is in Virginia. The result is a culture of acquiescence . . .
• “There is no question that attorneys who are juggling four, five, eight defendants in one morning, and hoping to plead them out that day, are doing virtually nothing for their individual clients.”
• “Utilization of an expert requires time and effort: research must be done in order that an expert will be useful, a motion for an expert must be prepared and argued, and if approved, an expert must be located and time will be spent working with the expert. “Many court-appointed lawyers in Virginia never put this sort of effort into their cases.”

Two years ago, a New York study found:

“Notwithstanding the valiant efforts of many lawyers, too many of New York City’s poor are receiving thoroughly inadequate legal representation in such important court proceedings as those relating to child custody and visitation, child abuse and neglect, termination of parental rights, domestic violence, and criminal prosecution, often with serious adverse consequences.”“The outmoded, underfunded, overburdened, and organizationally chaotic system in operation today dishonors New York’s long-standing commitment to an individual’s right to meaningful and effective representation, often with devastating effects on the thousands of children and indigent adults who pass through that system each year.”

In 1997, an ABA study discovered that “In child abuse and neglect cases, the legal representation of parents, children, and child protection agencies is often seriously deficient,” with many lawyers apparently not understanding that “diligent representation” included obligations such as “to meet with clients well in advance of each substantive hearing, to investigate disputed facts, and to be present in court.” (See American Bar Association President N. Lee Cooper’s Challenge to State and Local Bar Organizations on “Improving Legal Representation in Cases Involving Children, Youth and Families” February 1997; and take a look here for more studies with similar sad conclusions.)

I agree that lack of money is an important source of the problem in the programs established to provide legal representation to the poor across this nation. And, I readily acknowledge that there are a large cadre of assigned counsel who care deeply and provide excellent service under impossible conditions (I tried to be one of them). Many others provide uninspired but fairly competent legal representation. But (and I know I’m going to anger a lot of folks), this much seems clear to me after years observing and participating in the assigned counsel system:

• – many assigned counsel make no meaningful effort to provide meaningful, diligent representation
• – a very large percentage take assigned cases solely because they have no other sources for clients
• – they have no other sources because they do not have the respect of their colleagues, judges, or former clients
• – they are unlikely to work harder if pay levels are increased, and may even do less per case
• – local bar associations often oppose creating better-organized, and more effective institutional entities to provide legal services to the poor, because private practice attorneys fear losing the work, despite all their cries of being scandalously underpayed
• – disciplinary committees totally avoid these issues of competence and diligence
• – the mainstream bar holds its nose and pretends the ne’er do wells don’t exist

What percentage of assigned counsel fit my very negative picture? Of course, I can’t say for sure, but it’s certainly at least 20%, and probably a significantly larger figure. Too damn many of them.

The public doesn’t want to pay more to improve this system. Responsible lawyers need to act to assure more funding and better organization. They also need to take some of these cases.

Postnote (02-04-04): Ken Lammers at CrimLaw offers some practical suggestions for improving indigent representation in Virginia this morning. Put Ken in the column of assigned counsel who care.

Postnote (02-05-04): Carolyn Elefant at MyShingle has quite a bit to say today about assigned counsel pay and how to improve the system.

Postnote (09-04-04): David Feige has a thoughtful column at Slate: “Public Offenders’: Why criminals in Massachusetts are getting out of jail free.” He says only a comprehensive public defender system, not one relying so heavily on assigned counsel will provide adequate service.

Postnote (Jan. 31, 2006):  See our post “NYS Chief Judge wants statewide public defender system,” and the 2005 ABA report on indigent defense, Gideon’s Broken Promise, which states that national standards for indigent defense favor fulltime public defenders, whenever the population and caseload can support them.