TBA Releases Statement on Indigent Representation Funding Increase

NASHVILLE, April 19, 2024 — The Tennessee General Assembly yesterday approved critical additional funding for court-appointed attorneys representing the indigent in state courts. The funds, $8.6 million in additional funding, were included in the FY 2024-2025 budget, and will provide a $10 increase in the hourly reimbursement rate of compensation, along with a proportionate increase in the current cap on the total amount a court-appointed attorney may earn per case, marking the first time this rate has been increased since 1997. The Tennessee Bar Association (TBA) applauds the Tennessee General Assembly and Gov. Bill Lee for supporting this funding as a first step.

The TBA 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. 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.

Tennessee’s court-appointed attorneys are among the lowest paid in the country, and until now had not had their hourly reimbursement rate raised in 26 years. The low rates and caps, combined with 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. This situation has resulted in a crisis in our legal system, and especially 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 a vast number of cases in which the interests of a child or other vulnerable person are protected by a guardian ad litem.

TBA President Jim Barry reacted to the development saying, “The TBA thanks the General Assembly for making indigent representation funding a priority, and is especially grateful to Chief Justice Holly Kirby, the Tennessee Supreme Court and the Administrative Office of the Courts for their leadership and partnership in helping spotlight this critical issue. It must be financially feasible for court-appointed attorneys to continue representing some of the state’s most vulnerable residents or the entire judicial system will suffer. While the funding fell short of the Supreme Court’s request, the TBA remains committed to working with the Supreme Court, the Administrative Office of the Courts, Gov. Bill Lee, the legislature and other stakeholders to secure additional resources to fairly compensate lawyers who do this important work.”

The TBA supported the AOC’s full budget request of $26.145 million, which would have funded a raise of the hourly rate from $50 to $80. While still insufficient, this increase would have marked a dramatic improvement from the current level. While the appropriation in the final budget funded only a $10 increase, the TBA is encouraged by the comments of House Finance, Ways and Means Subcommittee Chair Patsy Hazlewood, R-Signal Mountain, who acknowledged that the funding provided this week is just a start. “It’s not market compensation, but it will allow us, hopefully, to address a problem. It’s very difficult for judges to find attorneys to take these indigent cases, so with additional funding, hopefully we will be able to get more cases through our system and stop the roadblocks,” Hazlewood said.

The TBA will continue to fight for additional funding to raise the hourly reimbursement rate.

 

Issue Summary

Tennessee’s court-appointed attorneys, who represent indigent citizens statutorily and constitutionally entitled to legal counsel, are among the lowest paid in the country, and before the 2024 budget had not had their hourly reimbursement rate raised since 1997. 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.

This situation has resulted in a crisis in our legal system, and especially in the juvenile courts. The Tennessee Supreme Court noted recently 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 said that the juvenile court and criminal justice systems are “running out of options.” The situation is particularly significant for solo practitioners, small firms, and attorneys that practice in Tennessee’s rural counties.

In February 2024, Governor Lee released his Fiscal Year 2024-25 budget and kept funding levels for the judicial branch the same as last year, including funding for indigent representation. In April 2024 Tennessee General Assembly approved critical additional funding for court-appointed attorneys representing the indigent in state courts. The funds, $8.6 million in additional funding, were included in the FY 2024-2025 budget, and provided a $10 increase in the hourly reimbursement rate of compensation, along with a proportionate increase in the cap on the total amount a court-appointed attorney may earn per case, marking the first time this rate has been increased since 1997. The Tennessee Bar Association (TBA) applauds the Tennessee General Assembly and Gov. Bill Lee for supporting this funding as a first step.

Increased funding for indigent representation remains a top priority of TBA, which is committed to working alongside the Tennessee Supreme Court, Administrative Office of the Courts and others on this important issue.

It’s time for Tennessee attorneys to convey to their elected legislators how serious this problem is and the toll it is taking on the entire judicial system. Please reach out to your legislators and ask them to support increased funding for indigent representation (find your Tennessee legislators here).

 

Details & Talking Points

• Increasing compensation for court-appointed attorneys representing the indigent remains one of the TBA’s top legislative priorities. 

• Before the recent funding increase ($10 an hour), Tennessee’s hourly reimbursement rate of $50 an hour had not been raised since 1997.

• 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. Tenn. Sup. Ct. Rule 13 states that court-appointed attorneys are obligated to represent their indigent clients unless the court allows them to withdraw.

• The still low rates, combined with the 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.

• 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.

• 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.

• A 2017 Indigent Representation Task Force that included judges, attorneys, legislators and others found the $50/hour rate inadequate and recommended raising it to between $75 to $125 an hour. Between 2017 and 2023, the Tennessee General Assembly added $19,337,700 in additional recurring funds to the indigent fund, which was only enough to eliminate the difference between in-court and out-of-court work.

• On October 3, 2023, the Tennessee Supreme Court announced its intention to ask the General Assembly to increase compensation to $80/hour for court-appointed attorneys in the juvenile and criminal courts.  While the proposed raise won’t 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 the news release. “The criminal justice and juvenile court systems are running out of options.”

• Additionally, 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 Juvenile and Family Court 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.”

• The TBA has long advocated for higher compensation for court-appointed attorneys. We strongly support the Supreme Court’s efforts to request more funding and are committed to working with the AOC, the Supreme Court, the legislature and Governor Lee’s administration to make this a reality. It must be financially feasible for court-appointed attorneys to continue doing this important work, or the whole judicial system will suffer.

 

Legal Requirements for Representation

Under both the U.S. and Tennessee Constitutions, the state must provide legal counsel to defendants in criminal cases and parties in many juvenile court cases who cannot afford an attorney. 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. In addition, court-appointed attorneys are used to represent children and families in neglect or abuse cases.

 

Summary of Rates and Caps in Supreme Court Rule 13 regarding guardian ad litem (Updated - 2024)

*Beginning July 1, 2018, the in-court and out-of-court hourly rate compensation distinction was eliminated, and the hourly rate was equalized to $50. Previously, the hourly rates were $50/hour for in-court and $40/hour for out-of-court.

Dependent and Neglect Maximums

$1200 - Petition through disposition (usually includes three court appearances, two Child and Family Team Meetings (CFTMs), investigation with DCS, petitioners, parents, school, records review and file review plus pleadings if necessary)

$1500 - All post-disposition, Termination of Parental Rights (TPR) for parent and GAL

Maximum Dependent and Neglect without extended and complex is $2700

Maximum GAL for Dependent and Neglect is $2700 or 45 hours for the life of the case

Maximum GAL for Termination of Parental Rights is $1500 or 25 hours

• Try the TPR (usually 8 hours)
• Leaves 17 hours to review pleadings, visit with child, visit with petitioners, visit with respondents, review home studies, gather records, prepare pleadings, subpoena witnesses, etc)
• Plus if the GAL is the petitioner, then preparing the pleadings takes an additional 3-4 hours

Maximum GAL predisposition phase is 20 hours but has additional requirements

• Initial Child and Family Team Meeting (CFTMs) (usually at least 2 hours)
• File review
• Read investigation records
• Interview parents, schools, investigators, other community members, child
• Preliminary hearing (usually .2 – 8 hours)
• Permanency plan ratification (usually .5 – 3 hours)
• Adjudication (usually .2 – 8 hours)
• Disposition (usually .2 – 8 hours)

Tennessee Supreme Court Rule 13: Appointment, Qualifications, and Compensation of Counsel for Indigent Defendants.