Lawyers may need to adjust in the wake of budgetary issues.
I am a lawyer who does a lot of court-appointed work and it is a substantial part of my law practice. I see there may be cuts in federal court-appointed payments and/or delays because of budgetary issues based on what is known as the sequester statute. I have also seen at least one capital case where the courts have cut back on the fees, presumably because of the limited fee for capital cases the Supreme Court has allowed in Philadelphia. What is my professional obligation to the clients I represent and/or to future clients?
As has often been said in these articles, the legacy of Gideon has long been minimized in Pennsylvania. Over the last 30 years, dedicated public defenders and extremely dedicated court-appointed counsel have handled the responsibility of the entire bar at great personal cost with almost no realistic reimbursement.
As a result, for court-appointed cases, a very small portion of the bar handles the responsibilities of all members of the bar. This assumption of responsibility has gained no respect among the judiciary, which somehow believes paying a pittance is all that is necessary to fulfill the Gideon obligations.
As a result, low fixed monthly fees, which have no relationship to the number of cases, are the payment plan in many counties. In Philadelphia, felony cases are paid $650, while homicides receive $2,000. After the first half-day, attorneys are paid $400 a day for homicide cases and $300 a day for felonies. Recently, based on a King’s Bench motion, the capital case rate has been raised to $10,000 in Philadelphia, which is still grossly inadequate. Some counties that were paying more for capital cases have used that $10,000 as a benchmark to cut, sometimes in midstream, the reimbursement rate on homicides and/or capital cases.
Lawyers who complain are either removed from the list or not given other appointments and are criticized. The sacrifice made by many lawyers who have essentially created the profession of quasi pro bono indigent defense is totally unappreciated. As lawyers give up and leave that area, there is a great void. It can be filled with stopgap measures by new lawyers who want to get trial experience, but there is a real likelihood that many will not stay for the long haul and those that do will no longer come back.
But despite that, there are dedicated lawyers who will continue to represent the indigent, either for free or at these ridiculously low court-appointed rates, because they believe it is the right thing to do.
The two rules that are directly on point are Rule of Professional Conduct 6.1, "Voluntary Pro Bono Services," and Rule 6.2, about accepting appointments. Rule 6.1 is just an aspirational rule that lawyers should do pro bono work and provide financial support for organizations that do. But there is no requirement that pro bono work be done.
Despite the lack of requirement, there are many lawyers, and also many major firms, who have participated in pro bono services. It is not totally altruistic, because some firms see this as a training ground for their young associates to get trial experience and become comfortable with courtroom litigation. But law firms do spend a lot of time and effort and, particularly in the area of capital litigation, have made major contributions.
The second rule, Rule 6.2, about accepting appointments, states a lawyer shall not seek to avoid appointments to represent a client, except for good cause. There are three examples of good cause. The first is when representing the client is likely to result in the violation of the Rules of Professional Conduct. The second is when representing the client is likely to result in an unreasonable financial burden on the lawyer. The third is when the case is so repugnant to the lawyer as to impair the client-lawyer relationship.
Rule 6.2 probably really reflects an older time. When this writer came to the bar, every lawyer was on a court-appointed list in the counties and the lawyer’s name would come up for a criminal or dependency appointment. But those days are gone.
Apparently to save costs, only several court-appointed lawyers are named. Usually, there are three or four per county and they receive somewhere between $2,500 and $3,000 a month, without other benefits or costs, to handle an unlimited number of criminal cases.
Under Comment 3 to Rule 6.2, a lawyer who is appointed has the same obligation to provide representation as if the lawyer were retained. That is what it should be, but for a system that routinely grossly underfunds these cases, that is an impossible standard. In the old days, when everyone took court appointments and an attorney had maybe one or two appointments a year, that rule made a lot of sense. But in this modern era, where there are professional indigent defense lawyers, many of these lawyers have as many as 100 indigent defense cases. At these low rates, there is absolutely no way one can treat each case as if he or she had received a suitable retainer to handle it. It’s just impossible, unless the lawyer happens to be independently wealthy and has devoted his or her life to indigent defense.
The system is only getting worse, because there are less funds to go around now and clearly indigent criminal defendants are going to be the lowest of priorities, particularly because the judges and leaders of the judicial system have taken no steps to attempt to ensure adequate funding for court-appointed cases.
The system has been left in a county-by-county funding situation despite suggestions over the last 30 years by the Pennsylvania Supreme Court that it was moving toward a statewide funding system.
Therefore, a lawyer who is caught in this predicament of lack of funds or slashing of funds has to evaluate his or her situation. It doesn’t do a lawyer any good to have to close down his or her law practice and then not be able to represent anyone. The lawyer has to be realistic and perhaps seek to withdraw on cases if the funding has been changed or the payment schedule has been delayed. In a perfect world, the lawyer would move forward as the true hero trying to uphold the rights of all in a truly professional manner. But that kind of language is a little dated when the same lawyer might have a secretarial salary and rent and other expenses that could easily reach $150,000 a year if the lawyer is doing anything more than running his or her office off of a dining room table with a personal computer.
There are always discussions about lawyers en masse refusing to accept these appointments. But that has been prohibited since 1977. There is a very famous U.S. Supreme Court case involving Washington, D.C., lawyers who attempted to do that. The court found such activity to be an antitrust violation.
But the bottom line is the lawyer has to evaluate the situation and what he or she can and can’t do. It may be that for many lawyers it is no longer possible to accept many appointments and make that the bulk of a practice. All of this would be a loss to the system, but the system, like any bureaucratic system, really doesn’t care. As long as there is a new body to replace that experienced lawyer, the system continues to function.
Whether the quality of representation is the same is of no concern to the system, as long as the numbers indicate a rapid disposition rate. Crunching the numbers is what really counts. The judge who moves an ungodly number of cases will be a hero, even though there may be serious issues of injustice and/or fairness. The judge who is fair and learned but doesn’t move cases as fast will not be welcome. It is a sad message to send in this modern society.
Zealous advocacy is good advocacy.
Where is the line between overzealous advocacy and good aggressive lawyering?
The question as posed likely comes from an inexperienced trial lawyer. Any experienced trial lawyer worth his or her salt knows there is no line. Instead, there are the Rules of Professional Conduct and professionalism that dictate how cases are to be tried.
What attempts to pass for aggressive lawyering is often just bad manners, lack of knowledge of the rules or lack of understanding of the tradition and practice in the courtroom. But what can one expect if lawyers view litigation as some kind of legal combat. That kind of false understanding clearly would lead to a poorly conducted trial, not through overzealousness, but through ignorance.
A review of some of the basic rules and policies behind trials clearly demonstrates what a lawyer can and cannot do. Lawyers cannot mislead, lie or cheat, per Rule of Professional Conduct 8.4. Lawyers cannot present false evidence, fail to reveal contrary legal opinions or give personal opinions, per Rules 3.3 and 3.4. Lawyers are not to disrupt a tribunal, per Rule 3.5.
These are some basic, common-sense rules that every good advocate should comply with.
First, an attorney should not make negative comments about his or her opponent. It has become a sport to criticize or make comments about one’s opponent or suggest an opponent is lying. None of that has any place in the courtroom. Second, there should not be yelling in a courtroom. Third, one should not talk over a judicial officer. Fourth, attorneys must comply with decorum of a courtroom. Ask the judge what he or she wants. One always stands for the judge. Every courtroom is different about standing for the jury. Find out in advance. This writer believes people should not stand for juries, because they are citizens. But that is determined by each judge in his or her courtroom.
Ask questions either from the podium or sitting at counsel’s table. Don’t run around the courtroom or breathe over a witness’ neck. That might be good for Perry Mason, but not for reality, and a lawyer who does that demonstrates the lawyer really doesn’t understand courtroom decorum. Address the judge appropriately as "your honor." Make objections that are not speaking objections. Go to sidebar to discuss the issues if the judge will allow it. Don’t get angry with opposing counsel. Don’t talk at cross purposes with opposing counsel. If opposing counsel does something the lawyer doesn’t like, object, but don’t argue. Be prepared. Have your exhibits copied. Make copies available to opposing counsel and to the court. If a lawyer is using technology, be prepared to use it and not waste time trying to get it to work. When questioned by a judge either in trial or appeals, stop talking. Never, ever talk over a judge and never raise one’s voice to a judge. Don’t have food or drink all over your counsel table. Don’t make faces or shake one’s head if you disagree.
Attorneys who follow these concepts will win or lose on the merits. Overzealous lawyers fail because they often don’t know the above rules, have bad manners or are inept and make up for it by bluster.
Lawyers who talk over their opponents or interrupt the judge demonstrate their lack of competency in a courtroom. It is like an unskilled football player trying to cheat by hurting an opponent or holding them.
If one doesn’t have the ability to be a trial lawyer, there are many other areas of law. Trial lawyers thrive on preparation, knowledge, a good level of intelligence and trial quickness. They also have a temperament that can endure the ups and downs of trial. A bad trial lawyer is someone who doesn’t have the temperament or quickness to thrive in the trial environment. There is nothing wrong with that, because there are many other intellectual skills that are worthwhile in other forms.
There is no line between zealous advocacy and good advocacy. But there are lines between the knowledgeable trial lawyer who knows his or her craft and someone who wants to be the bully in the courtroom, denigrate the process and cover up his or her lack of skills by screaming or cheating. That conduct has never been tolerated and every trial lawyer should evaluate and make the adjustments necessary. •
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.