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The more things change, the more they stay the same. In January 1999, I devoted this column to the theme of cheapskate justice for indigents. Prevailing rates for assigned counsel were shockingly low: hourly rates as miserly as $20 or $25, often combined with caps of $1,000 or less. Predictably, such inadequate funding led to inadequate performance and to a serious shortfall of willing lawyers. Countless reports documented these dire conditions and called for legislative relief. Yet while a survey of counsel fees in various states shows some change in the last few years, what it mainly reveals is “business-as-usual” dereliction by legislators. The statutes of New Jersey and Massachusetts present two uninspiring examples of lawmakers’ decades-long inaction. The latter provides $39 an hour to represent a felony defendant (for homicides, the rate is $54). New Jersey allows an hourly fee of $25 or $30 and, worse still, adheres to an all too common pattern by rewarding time spent in court with higher pay. New Mexico, following a different but also defective model, gives lump-sum remuneration ranging from $500 to $700, depending on the judicial district and the seriousness of the felony. Under this scheme, if counsel devoted 25 hours to a client charged with a first-degree felony-an inconceivably low number if the matter went to trial and unrealistic even if it didn’t-he would receive the princely sum of $28 an hour-an amount unlikely to cover overhead. Even in a jurisdiction with maximum fees, counsel may end up losing money. Take Illinois, a state with hourly rates of $30 to $40 and a fee cap of $1,250 (waivable only in “extraordinary” circumstances): If the lawyer can initially pay his or her fixed expenses, he or she surely will not continue to do so, let alone earn a profit, when the effective payment rate heads south of the statutory $30. The math reveals that this will happen after a mere week’s worth of work-a drop in the bucket for a case of any complexity. True, the past five years have witnessed a few increases in hourly fees. New York, which for almost 20 years had given its appointed lawyers starvation wages of $25 to $40, recently amended its law to provide for a flat $75. (But the legislature acted only after New York Co. Lawyers’ Assoc. v. New York (2003), which set an interim $90 per hour rate, finding that most attorneys would lose between about $3 and $18 an hour if they kept working at prevailing rates.) Not all change, however, has been in good faith. Consider Virginia, which has raised its nonwaivable caps; but even the new caps work out to measly amounts because funds actually appropriated cannot support the stated levels of compensation. The due process perspective The issue has been brought to the fore by Lavalee v. Justices of the Hampden Superior Court, a July 28 decision of the Massachusetts Supreme Judicial Court. Finding that the stated rates of compensation-frozen for about two decades-had caused a critical shortage of lawyers for assigned cases, Lavalee held that an indigent defendant without counsel for more than seven days is entitled to be released from custody under the Massachusetts Declaration of Rights. And if the defendant goes unrepresented for 45 days, the prosecution must be dismissed. The opinion noted the crucial nature of prompt pretrial investigation and preparation and the “serious likelihood” that in the absence of counsel, “decisions that are themselves critical stages” in a defense are not being made, raising serious concerns about effective assistance of counsel later on at trial. Unlike the New York court, Lavalee did not set new rates, so the Massachusetts Legislature should step up to the plate-as should other laggard legislatures-to bring rates into the 21st century. This includes building cost-of-living adjustments into their laws and doing away with fee caps and in-court differentials that encourage counsel to stint on hours of trial preparation or bulldoze clients into pleading guilty. After more than 40 years since Gideon v. Wainwright, it is surely time. Vivian Berger, an NLJ columnist, is professor emerita at Columbia Law School.

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