Eating Our Own

It may not have been the best plan of action, but hey, this was Franklin County, Maine and it’s not like they have the volume of warm bodies that Brooklyn would produce on any given day.  So they did the best they could and at least they tried to do something.

From the Morning Sentinel:

Attorney Walter Hanstein, an organizer of the effort to raise pay for court-appointed lawyers, said it was unlikely that attorneys would refuse all court appointments. Hanstein and attorney David Sanders asked lawyers to refuse sexual assault cases, a category that only a small group of attorneys are approved to take as court-appointed counsel in Franklin County.

The effort began two months ago when Hanstein and attorney David Sanders told the Franklin County clerk’s office that they would no longer serve as state-paid attorneys for low-income defendants charged with sexual assault, until the wage is raised from $50 to $70 per hour in all court-appointed cases.

It’s not like there was no consideration of their plight.  The Maine Legislature had passed a $5 increase effective this coming July.  After all, the legislators were frugal.  But the greedy criminal defense lawyers weren’t satisfied.

Court-appointed attorneys in Maine have been paid $50 an hour for the past 15 years, and while they are set to get a $5 raise starting July 1, the “striking” attorneys said the raise was insulting compared to the $333 an hour the state pays private attorneys to defend Centers for Disease Control officials in an ongoing whistleblower lawsuit.

[Executive director for the Maine Commission on Indigent Legal Services, John] Pelletier said the commission is once again presenting the proposal because they believe it would be fair compensation for court-appointed attorneys. He said while they are proposing a raise, they are also being budget conscious by asking for less than the market price or the $150 an hour paid to court-appointed attorneys in federal cases.

STRIKE!  Refuse to take the cases at $50 an hour, and force the legislature to pass a more reasonable, livable amount.  But it fizzled, not because they brought in the Pinkerton’s to beat them into submission, but because there is always a lawyer who will take the fee, no matter how low it is.

“The unfortunate thing is that throughout the state, the commission has been able to find lawyers that said they would take one of the cases, so the standstill we were hoping we would create wasn’t created,” said Hanstein by phone last week.

They weren’t broken by the government. They were broken by their own.  Granted, it’s not like they had to make a lot of calls to do it, as there appears to have only been a grand total of two sex assault cases in Franklin County, which is why the plan may have been less than well-conceived, but still.

Before anyone complains that they would be thrilled to make $50 an hour compared to whatever wage they’re getting at the Dairy Queen, bear in mind this is the amount that not only goes toward the food bill, but the cost of running a law practice, from rent and phones to the paper your suppression motions are written on. Subtract the costs and the $50 an hour means a net profit of $0.37. Not as sweet as you thought.

The promise of Gideon has proven largely empty, despite all the swooning rhetoric, largely for lack of money.  No legislator ever got elected for voting to properly fund indigent defense. There is no photo op at the grand opening of a trial for a poor defendant. But Gideon is a national duty, a constitutional obligation, and not a burden to be shifted onto the shoulders of criminal defense lawyers.  It’s not our job to eat the cost so that you can feel good about delivering a defense to the poor.

This isn’t the first time indigent defense lawyers fought to improve their wage, only to be cut off at the knees by their own.  The great Legal Aid Society strike  in ’91 spawned alternative defender organizations, happy to take the contract and the food from the mouths of public defenders.  And when private indigent defense, the 18B bar in New York City, sought to increase the fees paid that hadn’t increased from $25/$40 in decades, there was talk of a strike but bizarre fears of an antitrust suit and lack of support from the hungrier lawyers killed it.

It’s true that money paid to defend the indigent isn’t sexy money.  No taxpayer is happy to have his hard-earned money go to help criminals to begin with, and indigent criminals even less.  After all, they work to earn the money used to pay taxes. Let the criminals work to earn the money needed for their defense.  Sure, this ignores the possibility they might be innocent rather than criminals, but when making self-serving arguments, it’s easy to leave out the unpleasant details.

But there remains one hard, cold point that needs to be driven home: Providing a defense to the poor is not a lawyer problem, but a societal problem.  We do it because the Constitution demands it.  And by “we,” I mean all of us, lawyers and non-lawyers.  It sucks that we have to watch our tax dollars go there instead of happier things we prefer, like Bunker Buster Bombs or mine-proof armored personnel carriers to raid poker games and run down chickens?  Tough nuggies.  It’s part of the deal, the compact, of being American.

What it is not is a cost to be paid only by criminal defense lawyers.

And yet, there we are, one group of lawyers prepared to put their foot down and say, “no more.”  And another group of lawyers who will take any amount, no matter how low, because money.  This is why we can’t have nice things.

H/T Rick Horowitz

5 thoughts on “Eating Our Own

    1. SHG Post author

      If you’re satisfied with half a loaf, then chances of getting a full loaf diminish considerably.

  1. John Barleycorn

    This is damn near a balk esteemed one.

    Throw the brush back pitch like you mean it or make the throw to first base.

    Sometimes you are just too nice.

  2. Pingback: When Half a Loaf is (Not) Better Than None | RHDefense: The Law Office of Rick Horowitz

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