The TBA continues to share resources across communication platforms to help educate Tennessee lawyers about the state's system of indigent representation, which plays a crucial role in ensuring that individuals' right to counsel is provided for. This article highlights background and data about Tennessee's Indigent Representation Program.

November 15, 2024

This fall, the Division of State Audit in the Office of the Comptroller of the Treasury issued its performance audit report of the Tennessee Court System, including an evaluation of the "effectiveness and efficiency" of the current system of indigent representation, and other court programs. Indigent defense is a fundamental component of Tennessee's criminal justice system, and appointed counsel play a pivotal role in ensuring that indigent defendants have access to fair representation. Challenges such as underfunding and overburdened caseloads persist, despite ongoing efforts by courts, policymakers and other stakeholders.

The comptroller's audit recognized that Tennessee, "like many other states," continues to face obstacles in ensuring that all citizens are afforded legal counsel, regardless of their ability to pay and recommended that the Administrative Office of the Courts (AOC) "continue to work with the Supreme Court, the governor and the state legislature to ensure all citizens are afforded their constitutional or statutory right to legal counsel." The types of cases for which the right to counsel applies include the following: criminal, juvenile delinquency, child welfare matters, judicial hospitalization, and contempt.

The most recent audit provides a general overview of Tennessee's non-unified (decentralized) court system, including organization and jurisdiction of the state courts, as well as how programs, including court appointed attorneys, are administered. The audit assessed selected court programs between June 1, 2017, and May 31, 2023, and included a survey of attorneys and judges as well as review of outcome and financial records. The comptroller reported that the survey's "overwhelming responses from both judges and private attorneys" indicated that many attorneys cannot afford to take indigent cases, and the court system is struggling to find enough attorneys. This "lack of capacity" to meet the need for appointed counsel for clients under Tennessee Supreme Court Rules 13, 40 and 40A causes delays in the system and even those attorneys still willing to take cases are "spread thin."

The Tennessee Supreme Court’s Rule 13 requires judges to make an indigency determination for individuals appearing before them and provides, but does not require the use of the Uniform Affidavit of Indigency as a mechanism to collect information and help determine indigency. In most cases, Tennessee’s Indigent Representation Program requires the judge presiding over a case to appoint one of the state’s public defenders or, at the judge’s discretion, a private attorney to represent the indigent defendant or juvenile. In 1989, Tennessee created a statewide public defender system, which includes a popularly elected public defender in each judicial district, with offices funded via annual state appropriations. The comptroller's report found that "due to inherent limitations, such as conflicts of interest or high caseloads, public defenders and their staff cannot serve all the state’s indigent defendants and juveniles. In these instances, when a public defender cannot represent the indigent defendant or juvenile, the judge may appoint a private attorney instead. Public defenders typically provide representation in criminal and juvenile delinquency cases, but not in juvenile dependency and neglect cases.

The report recognized that the AOC has consistently requested an increase in appropriations for indigent representation, and in 2024 received funding from the General Assembly that allowed the hourly rates to be increased by $10. The report confirms what the TBA and the AOC have long said, namely, that the state needs to do more to fairly compensate lawyers who take these difficult cases. The TBA remains committed to working with stakeholders to secure additional resources for these efforts.

Get Involved

The TBA is looking for your input! Share your questions or topics that you would like to hear about in this series. There are several ways to connect with TBA to share your questions or experiences with indigent representation. Attorneys interested in learning more about TBA's grassroots advocacy efforts can sign up for TBA Grassroots Advocacy Updates, which will highlight related policy content across all of TBA's communication platforms. Attorneys with experience working with clients who are indigent or vulnerable, should complete this survey, which includes specific questions about court appointed representation. Looking for more information? Check out our Indigent Representation Resource page.