Kansan / Friday, May 1, 1987
7B
Lawyers seek new way to finance defense of indigents
Staff writer
By PAUL BELDEN
U. S. Supreme Court Justice William J. Brennan Jr. stood on the stage at Woodruff Auditorium in front of a capacity crowd of mostly lawyers.
It was a year ago in April, and he said,
"Every lawyer, at all times, should have at least one public service project to which he is devoting his time."
Now, some criminal lawyers in Kansas are saying that they can't be involved in a public service project and make enough money at the same time.
They say they are so burdened with court-appointed cases in which they defend those who can't pay lawyers' fees that they are losing good-paying business and can't pay the overhead for their offices.
Harry Warren, Lawrence resident and lawyer, said he spent more than 50 hours during several months defending David Winebrenner, a Lawrence man accused of starting a fire that killed a Lawrence firefighter. A Douglas County district judge appointed Warren to the case.
Warren's regular fee for the work would have been more than $3,000, he said, but Kansas taxpayers will give him $352.
"I had to refuse to take four or five cases during that time," he said. "I don't appreciate having to turn away paying customers."
Kansas has three methods of providing legal counsel to those who are too poor to pay for it; assigned counsel, public defender and contract.
assigned counsel is the most prevalent method used in the state. Ninety-five out of 105 Kansas counties use an assigned counsel, a court-appointed lawyer, to defend indigents.
The method in which lawyers are appointed to cases varies from district to district in the state. Typically, lawyers volunteer to be on a panel from which the administrative judge of a district makes appointments.
In some rural counties, where criminal lawyers are scarce, membership on the panel is mandatory.
The state board of indigents' defense services sets the pay scales for court-appointed lawyers. Lawyers were paid $30 an hour before the board's executive director, Ron Miles, under budgetary pressure, began cutting 12 percent from all expense claims submitted by Kansas lawyers.
Because of the 12 percent reduction, some lawyers say they won't volunteer again for
Milt Allen Jr., a Lawrence lawyer, has been on the Douglas County panel of indigents' defendants for eight years. However, he said he probably wouldn't serve on the panel again because of low pay and the possibility of no pay.
Warren also said he wouldn't volunteer for the panel again.
Issue goes to court
One Kansas lawyer is doing more than threatening to quit. He is fighting the system on a familiar battleground, the courts.
Orville Cole is a partner in a law firm in Anderson County, south of Douglas County.
He was appointed Nov. 14 to represent a man charged with 11 lifeson. On Feb. 23, he told an associate district judge that $30 an hour wasn't enough compensation.
Cole told the judge, "The dilemma faced by Cole as an attorney, is, can I effectively represent an indigent defendant, and how do we respond to that against my own right to survive financially?"
Cole asked to be dismissed from the case.
He said he couldn't afford it.
"I spent 40 hours and 10 minutes on this case up to the time that I started working on this present motion. My normal fee is $75 an hour, and by that standard, I am now owed $3,000, if I stop now."
He said that his office overhead took the first $2.50 an hour that he made. At $26.40, he
spent $38.80.
James J. Smith, the judge who heard Cole's motion, said that he agreed with Cole.
Smith ruled that Cole could stop work on the 11-felony-count case and two other indigent cases he was working on at the time.
panel for Anderson and Franklin counties and said that no lawyers in his district would be required to accept indigent felony cases for less than $68 an hour.
In class he was working on the indigents' defense Smith also dissolved the indigents' defense
"I realize that's not particularly adequate compensation, but I believe it's reasonable."
If the state couldn't pay the money, and if no lawyers wanted to do the work for less than $68 an hour, Smith ruled, the charges against indigent defendants, such as the 11 felony counts against the man Cole had represented, would be dropped in 30 days.
Kansas Attorney General Bob Stephan has asked the Kansas Supreme Court to require Smith to make appointments again. The court has not ruled on Stephan's request yet.
In Anderson County, money is scarce, but in Douglas County, the money is gone.
The state Legislature allocated $58,158 to Douglas County for court-appointed lawyers in the fiscal year that will end June 30. By Feb. 19, the money was gone.
mrs said the money ran out because of an extraordinary number of indigent felony cases. He said he had planned for only one class A and three class B indigent felony cases in Douglas County when drawing up the budget.
But in the first eight months of fiscal year 1987, court-appointed lawyers in Douglas County represented indigents in three class A felonies and 19 class B felonies.
Warren said, "You can spend just as much tuition on a class B felony as on a class A felony."
The problem is not exclusive to Douglas County, he said.
If Miles had not instituted the 12-percent reduction in vouchers, at least four other counties, Butler, Johnson, Leavenworth and Wyandotte, probably also would have run out of money before June, he said.
Gov. Mike Hayden recommended spending $79.900 less on assigned counsel cases for fiscal year 1988 than the board had requested.
Who will help?
The key is this question: Who should pay to defend the poor?
Somebody has to bear the load; when work is done somebody has to pay for it.
And a criminal lawyer's work — in Douglas County, at least — is worth about $70 an hour. Allen said.
To the key question there is a range of possible answers. The answer at one extreme is that everybody will pay, through taxes.
There are precedents: Medicare and Medicaid.
Many lawyers complain that as a rule, doctors and pharmacists don't have to settle for discount rates when they provide services or medicine to the poor because the government pays them.
But Mark Praeger, Lawrence physician, disputed the idea that doctors always get paid.
And Harold Godwin, professor of pharmacy practice, said that when pharmacists are paid by Social Rehabilitation Services for medicine for the poor, they usually receive from about 85 to 90 percent of what they have received from their regular practice.
And an ill person's right to medicine is not in the Constitution; a person's right, when charged with a serious crime, to a lawyer's counsel is.
There is an opposite precedent, however, and lawyers created it.
Rule 6.1 of the Model Rules of Professional Conduct of the American Bar Association says in part, "A lawyer should render public interest legal service."
Miles said that if the Supreme Court upheld Smith's ruling, the Legislature would have to act quickly to keep the board of indigents' defense services from going broke.
"We wouldn't have enough money to fund that," he said. "We would need more money, and that's about it."
The money would have to come from an increase in either court-service fees or taxes, or
Back to the key question: If not taxpayers, who will pay?
It used to be lawyers
State Senator Frank Gaines, D-Augusta, remembers when he represented indigents nearly for free.
"Back in 1960, when I started practicing law, let's say a federal judge had a bank robbery coming up. If that person was indigent, judge just called you up and appointed you."
The state paid you $5 a day. And you did it. If you didn't do it, you would never win a case in that judge's courtroom again." Gaines said.
Yet Gaines has no desire to return to that particular enforcement method.
"I would hope that we would be fair and equitable to these people," he said.
Mary Broderick, director of the defender division of the National Legal Aid and Defender Association, said the national trend was toward public defender systems.
Gaines said he preferred a public defender system of some sort in Kansas. It could be statewide or regional, he said.
USE RUSTY'S COUPONS
"The public defender concept generally costs less than assigned counsel, even though assigned counsel fees are so low they're almost a joke in some places.
"Administrative costs are more centralized in public defender systems, and public defenders are more efficient because they are trained and experienced in criminal law. Many assigned counsels only do criminal law part-time."
Broderick also attacks court-appointed lawyers' competency.
"A lot of them really hurt their clients because they don't take time to research and thoroughly acquaint themselves with the cases they work on. And then the client gets stuck with somebody who is just stumbling around," she said.
the Kansas Judicial Council has appointed a committee to study the feasibility of a statewide public defender system in Kansas
But two years probably will have pass before the committee makes its report to the judicial council, which will then review the report and present it to the state Legislature.
Meanwhile, Kansas criminal lawyers like
beamy Reed have sued the caseload and
complain about the pay.
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