Urges comprehensive system for compensating appointed counsel

NASHVILLE, Aug. 23, 2011 — Tennessee Bar Association President and Memphis lawyer Danny Van Horn today submitted the following letter to the editor of the Knoxville News Sentinel in response to several articles about the fees lawyers charge to represent indigent criminal defendants, which ran in the paper on Aug. 21.

Letter to Editor:

Monday's Knoxville News Sentinel and knoxnews.com included three articles concerning indigent criminal representation. Ensuring a fair, efficient and effective system of justice has long been a focus of the Tennessee Bar Association. The Tennessee Bar Association, the leading professional organization in the state, has been involved in issues related to indigent representation for several decades. This interest has included advocating for: establishing the statewide public defender system, setting adequate rates for compensation, lifting and eliminating arbitrary caps on compensation, and establishing a systematic approach to services for the indigent.

While your articles did an excellent job of exploring the complex issues associated with representation of those who might lose their liberty, but cannot afford counsel, there are several additional important details to consider. In the spirit of getting a complete picture and presenting fair and balanced reporting, I hope that you will consider the following:

• One of the stories focused on the differences between indigent representation in each of the major metropolitan areas. Both Nashville and Memphis had locally-created public defender offices well before the statewide system was established. In each case, the taxpayers of each of those counties provide additional funding for their public defender offices. This additional funding is not reflected in the statewide numbers.
• Another article explored the number of lawyers who received more than $100,000 from the indigent representation system. While we certainly understand and recognize that $100,000 is a significant amount of money to most Tennesseans, that figure should not be confused with the net pay that those attorneys receive. The reported numbers do not reflect the amount that lawyers earn after overhead for rent, employees, equipment or research. Once the hard costs of providing the services are accounted for, these attorneys are not making the kind of money suggested by virtue of their representation of the indigent.
• Petitions filed with Tennessee courts consistently have shown that the $40 out-of-court/$50 in-court rate for all non-capital cases barely covers overhead and does not compensate counsel for their actual time spent. As one lawyer noted, about 40 percent of his practice is indigent representation, but it represents only 10 percent of his income.
• Lawyers who undertake extensive amounts of indigent representation do so in the spirit of sacrificial service. A simple examination of the gross amount they receive in compensation for this representation does not provide a fair or accurate description of what is actually occurring.
• In some of the more rural counties in our state, there are so few attorneys that a significant number are appointed to indigent defense cases. These cases consume a considerable portion of the lawyers' time and constitute a genuine hurdle to being able to make a living to support their own families.
• To the extent that there is an impression that some attorneys are getting rich providing a defense to the indigent, that is simply not accurate.

In the last thorough examination of indigent representation undertaken by the Tennessee Supreme Court in 2003, the Tennessee Bar Association, joined by the Public Defenders Conference, Tennessee Association of Criminal Defense Lawyers and others, advocated for the establishment of an independent commission to manage indigent representation and expert services. The proposed system, following the best practice standards from the American Bar Association and several sister states including North Carolina, would focus on the quality and adequacy of representation, and manage the state's resources devoted to guaranteeing these constitutional rights.

The Administrative Office of the Courts has petitioned the Tennessee Supreme Court to create a contract representation system. In response, the Tennessee Bar Association will once again advocate for a comprehensive system for ensuring a fair, efficient and effective justice system. We are concerned with any system that does not account for quality representation and is not set up to discern qualified representation from unqualified representation. Good attorneys ultimately advance the interests of all those concerned including taxpayers, prosecutors, crime victims, those accused of crimes and others who may face confinement. Justice should not be left to the lowest bidder or the hungriest, but perhaps unqualified, bidder. Until a focused, comprehensive system is established, the issues presented by your articles will not be addressed in any fundamental way.

Sincerely,
Danny Van Horn
President
Tennessee Bar Association

Biographical information about Van Horn is available here