Howard Finkelstein
Howard Finkelstein (Melanie Bell)

A much maligned law regulating legal fees that put private criminal attorneys in conflict with circuit judges has been abolished.

After a contentious two-year existence, the so-called limited registry was done away with by the Legislature, effective July 1.

In addition, the revision raises fees for the first time in 33 years for criminal defense attorneys who take cases that cannot be handled by public defenders due to a conflict.

In 2012, the Legislature passed Senate Bill 1960. Its most contentious provision was new authority given judicial circuit chief judges to set up a limited registry of court-appointed attorneys for conflict cases.

A condition of being listed on the registry was that attorneys agree to accept as full payment the prescribed flat fee for all cases except RICO and capital cases.

As noted by Senate Committee on Appropriations staff analyst Marti Harkness on the 2014 reform bill, SB 2510, this led to several constitutional challenges—including Miami-Dade and Broward counties—where attorneys on a registry argued “it interferes with adequate representation and the defendant’s Sixth Amendment right to assistance of counsel.”

Last October, a Miami-Dade circuit judge dismissed a challenge to the limited registry, Harkness reported, on grounds that courts still had discretion to award fees in excess of the flat rates if extraordinary circumstances are documented.

From its inception, the limited registry was attacked by the Florida Association of Criminal Defense lawyers. Past FACDL president Derek Byrd of Sarasota told The Florida Bar the system “woefully underpays the attorney and encourages him not to do the work.”

Jamie Benjamin of Benjamin & Aaronson in Fort Lauderdale, the current FACDL president, maintained the 2012 law went against Makemson v. Martin County, a 1986 case law that provided judicial discretion, despite the Miami-Dade court’s ruling.

“We felt this was a legal sidestep of that Makemson decision,” Benjamin said.

A second conflict in the 2012 law involved a $3 million statewide cap. The first $3 million came from the state, but excess funds came from each circuit’s court funds. This gave chief judges even more incentive to limit fees, but SB 2510 eliminated that burden and provides that the Justice Administrative Commission pay fees in excess of the flat rate.

Central Florida Pilot

While this year’s reform bill does away with the registry, the Legislature was still looking for ways to realize a savings, since private attorneys get paid considerably more than assistant public defenders, were they able to take those cases.

A pilot program will be set up in four Central Florida judicial circuits to “cross refer” cases.

The standard process is for a case to go to the Office of Criminal Conflict and Civil Regional Counsel, if the public defender has a conflict of interest. If regional counsel also has a conflict, the circuit judge can then appoint a private attorney through the registry.

Under the pilot program, there would be a new step after the regional counsel passes. The judge could refer the case to a neighboring circuit instead of private counsel.

The FACDL supports the reform bill but is not sold on the new referral system.

“As to the pilot program,” Benjamin said, “we have more of a wait-and-see attitude to see if it will prove better in the long run.”

Finally, the Office of State Court Administrator analyzed the flat rates and recommended they warranted adjustment. Most fees more than doubled under the new compensation scheme.

Broward Public Defender Howard Finkelstein acknowledged that court-appointed criminal defense attorneys have been chronically underpaid, and said that can lead lawyers to cut corners. Consequently, defendants may get something less than their counsels’ best efforts.

On the other hand, Finkelstein said, “If my lawyers could get $6,000 on every case they could handle, they’d be living in the penthouse on the beach.”

Although not begrudging his private sector colleagues a more equitable fee, Finkelstein said it doesn’t correct the under-funding public defenders have endured for years.

“We’ve become very used to getting nothing; in fact, losing some of what we had,” Finkelstein said.

This last legislative session did provide public defenders a modest increase, Finkelstein said, but it amounts to considerably less than what private defense attorneys can realize.

“The bottom line is it’s the first time in many years the Legislature is addressing these issues,” Finkelstein said. “We’ve not taken care of our justice system over the last decade. I just hope the Legislature recognizes this is a good first step.”