Tuesday, December 9, 2008

Slipping Through the Cracks

I was in criminal court yesterday for an arraignment on a DUI case. Since my case was way down the docket, I had time to sit and watch. I was struck by the number of cases of people who were asking for public defender appointments, but who did not qualify.

Why is this interesting? Well, basically the appointment of a public defender is based upon income. Now that times are tough, economically, people who have income often have only enough to meet their monthly obligations, with nothing at all left over for legal fees. They can't tap home equity, since often that is already gone or they can't get a loan in the tight credit market. Several people had made every effort to retain counsel, saying that they had called several attorneys in town, but couldn't come up with the money they wanted.

One gentleman simply told the judge he had no option except to plead guilty and accept whatever punishment the court wished to impose.

It's obvious that people are falling through the cracks. Most lawyers won't accept anything less than full payment on criminal cases. We call that Rule 1 - get the money up front. When people can't do that, and they don't qualify for a public defender, what are they to do?

Nothing much, I suppose, which is a shame. I think that the formula for qualifying for a public defender needs to change.

It was also interesting that the judge placed great emphasis on the fact that some of the defendants had posted bond. Apparently, if you are able to post bond you are able to afford an attorney. Put another way, it looks like people may be forced to choose to sit in jail in order to secure legal representation. I did read a case from one of the states whose law I follow that held that practice to be unconstitutional. I guess that hasn't filtered down to the trial courts yet. But it is unconstitutional. You simply can't force defendants to choose between incarceration and their fundamental right to counsel.

In my practice I try to make legal services affordable. And I often violate Rule 1 if I think I can trust the person to make payments (although I am careful to make sure that the payment schedule gets the entire fee paid before the case is over). But there is only so much a solo practitioner can do.

I would like to have talked to some of the defendants and told them that I would work with them on fees, but face to face communications like that is considered to be unethical. One complaint and you're done.

The end result is some people who needed a lawyer didn't get one. I left before the court decided what to do with the gentleman who thought he had no choice but to plead guilty. I hope it worked out for him.


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