On March 5, the Administrative Office of the Courts (AOC) gave a budget presentation to the Senate Judiciary Committee that provided a thorough and candid analysis of the crisis affecting the court system and the need for greater funding for court-appointed counsel. On March 20 — during the Tennessee Bar Association's (TBA) second annual Day on the Hill — the TBA had the opportunity to present testimony before the state House Civil Justice Committee, and on March 26 to the Senate Judiciary Committee, sharing perspectives from Tennessee attorneys. TBA President Jim Barry and Bedford County attorney Garrett Haynes testified before a packed room at the House Civil Justice Committee, and TBA Executive Director Sheree Wright and Williamson County attorney David R. Grimmett testified before the Senate Judiciary Committee. They all spoke passionately about the need to increase the hourly rate and caps for court-appointed attorneys representing the indigent.

Garrett Haynes is a cum laude graduate of the University of Memphis School of Law, practicing law for six years with Wilson & Haynes, an association of attorneys located in Shelbyville. His practice is primarily in the 17th Judicial district, which includes Bedford, Marshall, Lincoln and Moore Counties. Over the last six years, Haynes has been appointed in well over 1,000 cases in the juvenile, general sessions, circuit, chancery and appellate courts of Tennessee where he has represented indigent clients who otherwise cannot afford an attorney. Many of these cases involve advocating for children as a guardian ad litem in dependency and neglect or termination of parental rights cases.

David Grimmett is a fifth generation Tennessean born and raised, and has owned Grimmett Law Firm PLLC for over 18 years. During his years of practice, he has represented over 1,000 parents and children in child abuse cases, has taught dozens of CLEs on child abuse cases, and he is one of the few attorneys in the state who is board certified in child welfare law.

LAWYERS’ PERSPECTIVE — STATUS QUO

Under both the U.S. and Tennessee Constitutions, as well as the Tennessee Code, the state must provide legal counsel to defendants in criminal cases and to parties in many juvenile court cases who cannot afford an attorney. The Tennessee Supreme Court has noted that it hears almost daily from judges who cannot find lawyers to represent citizens who are entitled to counsel. The judges characterize the current system as “teetering on the brink,” and have said that the juvenile court and criminal justice systems are “running out of options.” The Tennessee Supreme Court sets the hourly reimbursement rate and caps for court-appointed attorneys representing the indigent under Tennessee Supreme Court Rule 13, but any increase must be funded through the budget, which is determined by the General Assembly.

The Supreme Court of Tennessee has requested an increase in funding to address a crisis within this state’s court system. Tennessee’s courtappointed attorneys, who represent indigent citizens statutorily and constitutionally entitled to legal counsel, are the lowest paid in the country, and have not had their hourly reimbursement rate raised in 26 years. The low rates, combined with the low caps that are in place, and the rising costs of maintaining a legal practice, have created a 'perfect storm' where fewer and fewer attorneys can afford to take cases representing the indigent and attorneys who take these cases aren’t paid until months or years down the road. This issue is particularly significant for solo practitioners and small firms, and particularly affects rural areas of our state. — TBA President Jim Barry

This crisis in our legal system is especially evident in the juvenile courts. Nearly half of all cases requiring court-appointed attorneys are in juvenile court and involve families and children, such as adoptions, dependency and neglect allegations, reports of child abuse, proceedings to terminate parental rights, and many cases in which the interests of a child or other vulnerable person are protected by a guardian ad litem. — TBA Executive Director Sheree Wright

JUVENILE COURT

In Tennessee, state-funded public defenders in each judicial district provide legal representation to most indigent defendants in criminal cases. When a public defender has a conflict and cannot represent a party, or other circumstances arise, the judge must appoint private counsel to represent the indigent party. Nearly half of all cases requiring court-appointed attorneys are in juvenile court and involve families and children, such as adoptions, dependency and neglect allegations, reports of child abuse, proceedings to terminate parental rights, and a vast number of cases in which the interests of a child or other vulnerable person are protected by a guardian ad litem.

We have got to incentivize more attorneys to step up and take these cases because it’s not just lawyers taking a hit; it’s our children. We’ve got to find room in the budget. Kicking this can down the road another year or two will not solve the problem; it will only exacerbate it. So if we continue to have the attitude of 'we can’t afford it,' then consider the cost to our children’s well-being. Because that’s the real cost of neglecting indigent representation in our state. — Garrett Haynes

SUPPORTING CHILDREN IN JUVENILE COURT

For a child, just a few short months can feel like a lifetime. Kids need permanency and our current system is preventing that. Massive delays are happening because these cases cannot move forward until everyone is represented by counsel. I have seen adoptions held up for months because the judge could not find willing attorneys to act as a guardian ad litem and protect the best interests of the minor child during the proceeding. — Haynes

When a child enters juvenile court, it is probably the worst day of their life. Their family has been ripped apart and they are lost, confused and have absolutely no idea what is going to happen next. When I am that child’s attorney, my job is to sit down with them, tell them they are safe, and tell them I’m there to listen to them and give them a voice. — David Grimmett

The situation is the most dire in our juvenile courts. If you walked into juvenile court in Bedford County on Monday, you would see that it’s an absolute zoo. The dockets are have gotten extremely long. You’ll see a full courtroom gallery and 100 other people standing out in the hall. And just a handful of lawyers running around trying to put out fires. —Haynes

DEPENDENCY & NEGLECT CASES

What I and my colleagues perceive to be a huge part of the problem is dependency and neglect cases. The majority of these cases involve drug addicted parents and drug exposed children where the Department of Children’s Services (DCS) comes in to remove children from parents and either places them with a relative or in foster care. — Haynes

The cases that we deal with are some of the worst you can imagine. We deal with mental insanity, drug abuse, physical abuse and even sex abuse. Our kids need services, so we meet with DCS, counselors, social workers, teachers and anyone else that can help . . . and that's before the trial. To get ready for trial, we also have to gather evidence, prepare witnesses and even prepare the children to testify. — Grimmett

It has become a regular occurrence to delay cases in our juvenile courts because there are not enough attorneys to go around. Nearly every week I see multiple cases get delayed for weeks or sometimes even months because there weren’t enough willing attorneys to take the cases. And cases being continued due to a lack of willing lawyers means that children are delayed in finding a permanent home. — Haynes

TURNOVER & SHORTAGE OF ATTORNEYS

Often attorneys take these cases to their own financial detriment, and in many situations, the low rates and caps combined with the volume of cases make it increasingly difficult to maintain a law practice. This issue is particularly significant for solo practitioners and small firms.

The low rates, combined with the low caps and regulatory restrictions, cause many attorneys to decide not to seek reimbursement at all, as many believe it is simply not worth the trouble.

In Bedford County there are only three attorneys who are even willing to take these dependency and neglect (D&N) cases and I am one of them, which means I touch most of the D&N cases that come through the Bedford County Court system. — Haynes

The public defender’s office does not handle these types of cases [D&N] and so the judge is required in nearly every dependency and neglect case to appoint three private attorneys: One to represent mom, one to represent dad and a guardian ad litem to represent the best interests of the children. — Grimmett (Grimmett serves on Nashville’s committee that oversees the list of appointed attorneys in Juvenile Court. Last year, 13 new attorneys applied to be on that list. Of those 13, only two are still there.)

REIMBURSEMENT CAPS

To make things worse, there are caps and restrictions in place that both limit the amount that attorneys can charge for these cases, and often prevent attorneys from being paid until months or years down the road. Tennessee Supreme Court Rule 13 provides that appointed counsel cannot submit a claim to be paid until the occurrence of a billable event, which typically means the conclusion of the matter, even if the court-appointed attorney has reached the cap before the conclusion of the case. Due to circumstances totally beyond counsel’s control, this can be a period of many months or even years. Once they reach the cap, many court-appointed attorneys are forced to continue to represent their indigent clients for free while also taking time away from making revenue through their private practices. Rule 13 states that court-appointed attorneys are obligated to represent their indigent clients unless the court allows them to withdraw.

In Davidson County, I had a case last year that took 17 days to try and lasted 22 months. That same case was appealed to the Tennessee Supreme Court where it was reversed and now we have to try it all over again. Every single appointed attorney on that case reached the cap before the trial even began. — Grimmett

CURRENT RATES

Last fall, the Tennessee Supreme Court announced its intention to ask the General Assembly to increase compensation to $80 per hour for court-appointed attorneys in the juvenile and criminal courts. In order to raise the hourly rate to that level, the AOC submitted a $26.145 million budget request to the Lee administration for consideration in the state’s FY2024-2025 budget. While the proposed raise would not completely solve the problem, it is an important first step and reflects a significant acknowledgement by the Supreme Court as to the gravity of the issue. “Court proceedings can’t happen without court-appointed attorneys, but attorneys can’t afford to take cases at the current rates,” Tennessee Supreme Court Chief Justice Holly Kirby said in a news release from the court. “The criminal justice and juvenile court systems are running out of options.”

Tennessee’s Council of Juvenile and Family Court Judges announced its support of efforts to increase the hourly rate of compensation paid to court-appointed attorneys. In their statement, the judges noted, “Private attorneys are crucial for abused or unwanted children. Unfortunately, many attorneys do not accept appointments in juvenile court due to the inadequacy of the reimbursement. Simply stated, many court-appointed attorneys lose money taking these cases. They are hard cases and often last for years. There is absolutely no financial incentive for lawyers to take these cases.”

Many people would say that $50 an hour is a lot of money. Back in 1997 when the rates were set, I would have agreed with them. (Grimmett notes that even a decade ago, his overhead was about $75 an hour) which meant I was paying $25 an hour for the privilege of doing this kind of work. — Grimmett

Attorneys are not willing to take indigent cases because there is no financial incentive to do so. The current rates and caps on billable hours are woefully inadequate and do not even begin to cover my overhead costs. In rural counties, you see a lot of solo practitioners and small associations of attorneys. We are the ones absorbing pretty much all of the indigent cases and getting bankrolled in the process. We are proud to represent the indigent, but we do not wish to become indigent ourselves in the process. — Haynes

The current rates, which are 26 years old, are causing us to lose attorneys by the handful and causing children to not receive services they so desperately need because they do not have an attorney to advocate for them. — Grimmett

TBA'S COMMITMENT

On behalf of the juvenile court bar and every appointed counsel in this state, I am begging you to raise the rate for appointed counsel so that we can find a voice for these children and these families. — Grimmett

The TBA has long advocated for higher compensation for court-appointed attorneys and has been working hand-in-hand with the Tennessee Supreme Court and the Tennessee Administrative Office of the Courts (AOC) to encourage state legislators to increase funding for indigent representation.

While the AOC‘s full $26.145 million budget request was not funded this year, in April, the General Assembly approve an additional $8.6 million in recurring funding for court-appointed attorneys, in the FY2024-2025 budget, despite reducing state spending by $10 billion—a 16% decrease from the previous year's budget. The additional funding will cover a $10 increase in the hourly reimbursement rate of compensation, along with a proportionate increase in the current caps on the total amount a court-appointed attorney may earn per case.

While the funding fell short of the AOC's full budget request and Tennessee’s court-appointed attorneys remain among the lowest paid in the country, this increase is the first time the rate has been raised in 26 years. The TBA applauds the Tennessee General Assembly and Gov. Bill Lee for supporting this funding as a first step, and remains grateful to Chief Justice Holly Kirby, the Tennessee Supreme Court and the AOC for making this a priority and requesting sufficient funding to increase the hourly rate, as well as their continued leadership and partnership in helping spotlight this critical issue.

TBA President Jim Barry said in his testimony, "Increased funding for indigent representation remains a top priority of TBA, which is committed to working alongside the Tennessee Supreme Court, the AOC and others on this important issue. It must be financially feasible for court-appointed attorneys to continue doing this important work, or the whole judicial system will suffer."

The TBA remains committed to working with Gov. Lee, the General Assembly, the Supreme Court, the AOC and other stakeholders to secure additional funding next session to continue raising the hourly reimbursement rate for lawyers representing the indigent.

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