Samuel Stretton
Samuel Stretton ()

Indigent criminal defendants suffer the most from current system’s issues.

I am doing court-appointed work in Philadelphia, but I am not getting paid because I am told now we have to get a second appointment letter. What is going on?

Unfortunately, the Philadelphia court-appointed system, which is known for its terribly low compensation rates and extremely long delays in payment, has developed another roadblock. At the end of the case, a lawyer submits a pre-printed fee petition for the type of case and the amount. Attached is the appointment letter. The fee petition is signed by the judge and then submitted to the Counsel Fee Unit, which submits it to the city of Philadelphia.

The problem now is that if the lawyer was appointed at the very beginning of the case for the preliminary hearing, there is only a municipal court number on the appointment letter. Now, the city of Philadelphia is refusing to pay if a lawyer does a preliminary hearing and then continues on the case through trial, because the city says the appointment letter only has a municipal court docket number. Of course, that is true because that’s when the appointment letter was issued.

The city now says the Philadelphia courts have to issue a new appointment letter with the common pleas number.

The absurdity of this is that for the last 40 or 50 years, the original appointment letter was always sufficient. Apparently, there is now some kind of a computer change and the computer will not allow payment unless there is a common pleas number. But, the computer system is not hooked up with the Court of Common Pleas system to make the request that a second appointment letter be sent to the appointed lawyer.

So, what has to happen now is that every time a lawyer has an appointment and the case then goes to the common pleas level, either because there is a waiver of a preliminary hearing or there is a prima facie holding of criminal violations at preliminary hearing, the court appointed lawyer has to go back to the system and request a second letter. That can be time-consuming and difficult to get. But, if the lawyer doesn’t get it, the lawyer doesn’t get paid.

This is a system where now the paying rate is a $650 preparation fee. It has been increased, but only for new cases and there is no sound funding for the new increase. But, this new requirement places another burden and chips away at the hours a lawyer has to work on these cases.

This shows again why the Pennsylvania Supreme Court must use its supervisory responsibilities under Article V, Section 18 of the Pennsylvania Constitution to fix the indigent defense system and require statewide funding as opposed to local county funding and develop a uniform system.

As some point, lawyers become discouraged and start to give up and don’t take these appointments any longer. Further, what’s very upsetting is that the Philadelphia court system never told anyone that. Therefore, bills aren’t being paid because only the municipal court appointment letter is there.

The bottom line is the current system is undermining the ability for indigent criminal defendants to get adequate representation.

This system clearly borders on being unconstitutional, but obviously runs into serious ethical problems because it discourages lawyers from participating and makes it difficult for criminal defendants to obtain effective representation.

If a lawyer misses a statute and wants to settle, he must first advise his client.

I had a statute run on a case and the case does not have great value. I have offered the client $5,000 to resolve it since I don’t want to put my carrier on notice because I have a $10,000 deductible. Can I have the client sign a release?

The answer is no, not under those circumstances. Because the lawyer is now in a conflicting position with the client because of missing the statute of limitations, the Rules of Professional Conduct require notice to a client and require the client to be advised to seek independent counsel. The specific rule is Rule of Professional Conduct 1.8(h). Under Rule 1.8(h)(2), a lawyer cannot settle a claim for potential liability with an unrepresented or former client unless the client is advised in writing of the desirability of seeking counsel and giving reasonable opportunity to get the advice of independent legal counsel.

Therefore, before there can be any settlement or resolution or signing of a release, the lawyer should, in writing, give the client a letter telling the client to seek independent counsel. The client can waive that right, but the lawyer has to make the request and must do so in writing. If the client is refusing to seek independent counsel and wants to resolve it, then the lawyer should have the client sign a separate letter indicating that they have been given the advice and refuse it.

Failure to do that can result in professional discipline. No matter how well-intentioned a lawyer is and how reasonable the settlement offer might be, if later the client becomes upset and reports the matter to the Office of Disciplinary Counsel, that would be a clear violation of Rule 1.8(h) if there was not the written notice to seek counsel. If this was the first offense, that could well be only an informal admonition, but if there were other prior violations or depending on how the situation is handled, it could result in suspension.

Further, without doing so, the courts might not enforce the settlement and release. But, there does not appear to be any Pennsylvania cases on this issue.

Therefore, if a lawyer misses a statute or has caused a case to not be successful and wants to settle it, the client must be advised of all the facts and must be given the right and time to consult with independent counsel. If the client chooses not to see counsel, then the lawyer can deal with the client, but the lawyer should be very careful and document everything. Rules of Professional Conduct seek to protect the client and the lawyer’s duty at all times is not take advantage of a client, particularly when the client does not understand the conflict that has arisen due to the lawyer’s neglect. •

Indigent criminal defendants suffer the most from current system’s issues.

I am doing court-appointed work in Philadelphia, but I am not getting paid because I am told now we have to get a second appointment letter. What is going on?

Unfortunately, the Philadelphia court-appointed system, which is known for its terribly low compensation rates and extremely long delays in payment, has developed another roadblock. At the end of the case, a lawyer submits a pre-printed fee petition for the type of case and the amount. Attached is the appointment letter. The fee petition is signed by the judge and then submitted to the Counsel Fee Unit, which submits it to the city of Philadelphia.

The problem now is that if the lawyer was appointed at the very beginning of the case for the preliminary hearing, there is only a municipal court number on the appointment letter. Now, the city of Philadelphia is refusing to pay if a lawyer does a preliminary hearing and then continues on the case through trial, because the city says the appointment letter only has a municipal court docket number. Of course, that is true because that’s when the appointment letter was issued.

The city now says the Philadelphia courts have to issue a new appointment letter with the common pleas number.

The absurdity of this is that for the last 40 or 50 years, the original appointment letter was always sufficient. Apparently, there is now some kind of a computer change and the computer will not allow payment unless there is a common pleas number. But, the computer system is not hooked up with the Court of Common Pleas system to make the request that a second appointment letter be sent to the appointed lawyer.

So, what has to happen now is that every time a lawyer has an appointment and the case then goes to the common pleas level, either because there is a waiver of a preliminary hearing or there is a prima facie holding of criminal violations at preliminary hearing, the court appointed lawyer has to go back to the system and request a second letter. That can be time-consuming and difficult to get. But, if the lawyer doesn’t get it, the lawyer doesn’t get paid.

This is a system where now the paying rate is a $650 preparation fee. It has been increased, but only for new cases and there is no sound funding for the new increase. But, this new requirement places another burden and chips away at the hours a lawyer has to work on these cases.

This shows again why the Pennsylvania Supreme Court must use its supervisory responsibilities under Article V, Section 18 of the Pennsylvania Constitution to fix the indigent defense system and require statewide funding as opposed to local county funding and develop a uniform system.

As some point, lawyers become discouraged and start to give up and don’t take these appointments any longer. Further, what’s very upsetting is that the Philadelphia court system never told anyone that. Therefore, bills aren’t being paid because only the municipal court appointment letter is there.

The bottom line is the current system is undermining the ability for indigent criminal defendants to get adequate representation.

This system clearly borders on being unconstitutional, but obviously runs into serious ethical problems because it discourages lawyers from participating and makes it difficult for criminal defendants to obtain effective representation.

If a lawyer misses a statute and wants to settle, he must first advise his client.

I had a statute run on a case and the case does not have great value. I have offered the client $5,000 to resolve it since I don’t want to put my carrier on notice because I have a $10,000 deductible. Can I have the client sign a release?

The answer is no, not under those circumstances. Because the lawyer is now in a conflicting position with the client because of missing the statute of limitations, the Rules of Professional Conduct require notice to a client and require the client to be advised to seek independent counsel. The specific rule is Rule of Professional Conduct 1.8(h). Under Rule 1.8(h)(2), a lawyer cannot settle a claim for potential liability with an unrepresented or former client unless the client is advised in writing of the desirability of seeking counsel and giving reasonable opportunity to get the advice of independent legal counsel.

Therefore, before there can be any settlement or resolution or signing of a release, the lawyer should, in writing, give the client a letter telling the client to seek independent counsel. The client can waive that right, but the lawyer has to make the request and must do so in writing. If the client is refusing to seek independent counsel and wants to resolve it, then the lawyer should have the client sign a separate letter indicating that they have been given the advice and refuse it.

Failure to do that can result in professional discipline. No matter how well-intentioned a lawyer is and how reasonable the settlement offer might be, if later the client becomes upset and reports the matter to the Office of Disciplinary Counsel, that would be a clear violation of Rule 1.8(h) if there was not the written notice to seek counsel. If this was the first offense, that could well be only an informal admonition, but if there were other prior violations or depending on how the situation is handled, it could result in suspension.

Further, without doing so, the courts might not enforce the settlement and release. But, there does not appear to be any Pennsylvania cases on this issue.

Therefore, if a lawyer misses a statute or has caused a case to not be successful and wants to settle it, the client must be advised of all the facts and must be given the right and time to consult with independent counsel. If the client chooses not to see counsel, then the lawyer can deal with the client, but the lawyer should be very careful and document everything. Rules of Professional Conduct seek to protect the client and the lawyer’s duty at all times is not take advantage of a client, particularly when the client does not understand the conflict that has arisen due to the lawyer’s neglect. •