Changes are needed in the Philadelphia court system.
I am a relatively young lawyer in Philadelphia. What is the current status of court appointments and is the system ending?
The court-appointed system in Philadelphia and elsewhere throughout the state is terribly underfunded. In the federal court, until recently, the fees were $125 an hour. This fee has been reduced to $110 an hour because of the failure of the U.S. Congress and President Obama to work out mandatory budget cuts. These fees are still too low, but far greater than anything offered by the Pennsylvania court-appointed system.
Pennsylvania is even worse. There is absolutely no leadership or sense of direction by the court system in terms of improving payment for indigent defense.
The Philadelphia Court of Common Pleas has essentially washed its hands of the court-appointed system. The Mayor’s Office is now attempting to create a second Public Defender’s Office. The amount of money being offered for that second office is extraordinarily low and it will be very interesting to see if it can be properly funded. It would appear a second Public Defender’s Office would need at least $20 million to handle between 25 and 40 percent of the caseload. The Public Defender’s Office handles 60 percent of the caseload and receives about $40 million. The current offer is only around $10 million for this new office. Common sense suggests this is a recipe for disaster.
The court-appointed rates in Philadelphia are a joke. Only very dedicated lawyers, or new lawyers who come in and then get out of the system after they learn how to try cases, keep it going. There are some true heroes in the system who have spent their lives representing the indigent at great personal sacrifice. The amazing thing is that the court system treats many of these lawyers very badly and doesn’t recognize their contributions.
The other counties are just as bad. Most have flat monthly rates, which are absolutely unethical, yet the court systems endorse and support this unethical system. How judges can sponsor systems that are inherently unethical and not face judicial discipline for doing so is an interesting question.
The solution may be in a unified judicial system where the county row offices and the court-appointed payments are made and paid by the state.
But the Pennsylvania Supreme Court, despite almost 30 years of case law, has now backed off on the most recent case for state funding, saying it wants to defer to the legislature because of recent cooperation reasons. In other words, nothing is getting done.
True bold leadership from the Pennsylvania Supreme Court could create this unified judicial system for state funding for row offices and indigent defense. The court may have to file a mandamus to force funding of this system. In the long run, state funding is the way the system should work and that is the way the funding should work.
The current system is like a jigsaw puzzle with many missing pieces and no uniformity. Therefore, if one wants to join the court-appointed system in Philadelphia and has his or her office in Philadelphia, he or she can do so and will get $650 for a felony and $2,000 for a noncapital homicide. They now get $10,000 for a capital homicide. That is a very recent change that the court system thinks is a great favor. In reality, the $10,000 is a drop in the bucket if there is proper preparation. Juvenile cases are around $350 for each case.
The court-appointed systems are clearly unethical, whether it is a flat monthly payment for an unlimited number of cases or in Philadelphia rates that are so low a first-year law student wouldn’t be charging anything of that nature. The system is not working anymore.
Therefore, the status of court-appointed work or indigent criminal defense is horrific in Pennsylvania. It encourages guilty plea machines and very little trial preparation. It rewards those who plead out. It does not reward those who really work hard at each case. It does not encourage justice, only turnover. It encourages people to join the court-appointed system when young and get a few trials under their belt and then leave and let the next generation do the same thing. It does not encourage long-term commitment or involvement in the court-appointed system.
What is amazing is how little concern judges and court systems show, whether it is the Supreme Court, Superior Court or trial courts. But the same court systems are quick to punish lawyers who don’t file court-appointed briefs timely. For instance, the Superior Court and the Philadelphia District Attorney’s Office reports court-appointed lawyers who don’t timely file their Superior Court briefs. What most people don’t know is that court-appointed lawyers in the appellate system don’t get paid until the Pennsylvania Supreme Court has denied the case.
That can mean gaps of three or four years between filing an appeal and getting paid. It is very difficult if someone has office overhead to write these briefs, argue them and do petitions for allowance of appeal when there is absolutely no money coming in. Then, at least in Philadelphia, after three or four years, when one can petition, fees are horribly cut, sometimes by one-half.
The proper thing to do would be for every court-appointed lawyer to say, “Don’t take these cases anymore; it is unethical to do so.” But that will never happen because it would be against antitrust laws and too many young lawyers are coming up who are so desperate they will do anything, at least for the short term, to try to get money and experience. For many of these young lawyers, who honestly don’t know what they are doing, this creates additional problems down the line. Criminal law is not as easy as it seems. It takes a lot of time and experience to understand it and do it the right way.
Therefore, there is a crisis in indigent defense that no one seems to admit exists. The judiciary is out to lunch on these issues and apparently doesn’t care, as long as the cases keep being resolved. There is no true effort by the courts to create a reasonable and effective indigent defense system.
Bar associations are not strong enough to stand up or take the actions necessary. The relations between the bench and the organized bar are more important to county court systems. The current approach totally undermines Gideon and everyone who participates in the court-appointed systems knows it is unethical and does not foster good representation.
Further, getting experts or investigators is very difficult. People supposedly have to be qualified and then their rates are cut. Many experienced lawyers have run out of people they can use as investigators or experts because the experts will not work anymore because bills have been cut or not paid. It is a troubling system to participate in when a court-appointed lawyer is trying to get an indigent defendant a fair trial.
Therefore, it is hard to stomach when the First Judicial District brags about how it is saving money and how it can reduce its costs. Perhaps it can be done, but showing numbers and showing justice are two different things. At some point, the judiciary has to wake up and recognize what is happening and push for a fair and equitable court-appointed system. This will only come from the top — the Pennsylvania Supreme Court. As noted, there has been no interest in addressing those issues by the Supreme Court, which either doesn’t recognize the massive problem or doesn’t seem to care.
The system is held together by the Band-Aids of dedicated lawyers who run from case to case and do their very best with little or no funds. These lawyers, if they slip up or make a mistake, are disciplined. Sometimes they lose their licenses. There is absolutely no recognition of what they do.
This is a sad story that has no ending. I have written similar articles over the last 10 or 15 years and nothing changes. It is now time to make the changes. A unified judicial system, statewide funding, uniform methods of appointment of counsel and payment of counsel, and far more adequate fees are now necessary. Otherwise, the problems will continue. The big, dirty secret in Pennsylvania is only God knows how many men and women have pleaded guilty or been convicted when they shouldn’t have been because the system would not allow funding for them to have a fair trial. It is a terrible state of affairs and no one is paying attention. If they are, they don’t care, which is even worse.
When a practice is sold, clients are free to choose other counsel.
I have practiced for almost 45 years and now I wish to sell my law practice. I understand I can do so with certain conditions, but the person who I am selling to is apparently not liked by a number of my clients who refuse to go with that person. Can I have those clients go to a second person and have that person pay me if those clients are willing to go?
The question is an interesting one. Can a lawyer sell to two different firms when the lawyer is selling his or her practice? The answer is no as the rule is written. Rule of Professional Conduct 1.17 is the rule that allows the sale of a law practice under certain conditions. This rule was long sought because for many years until the rule was adopted in the early 2000s, a lawyer could not sell his or her practice. It would have been considered unethical and unenforceable.
There were initially some slow changes when the sale was allowed if the lawyer became disabled or if the lawyer passed away, in which case the estate could sell. The rule was amended even more recently to allow a lawyer to sell his or her practice, including goodwill, even if he or she is not disabled. But there are some requirements. One is that the lawyer who is selling the practice has to cease engaging in the private practice of law. Apparently, the lawyer could go to a government agency and practice law, but one could not have a small private practice on the side to handle old clients or friends.
Second, under the rule, the lawyer has to sell the law practice entirely to a single lawyer. The purchasing lawyer has to assume responsibility for all of the files.
There are other very detailed requirements in Rule 1.17, particularly to protect the attorney-client relationship. Clients have to be given notice under Rule 1.17(c), and must also be told they have a right to get representation and they don’t have to retain counsel as part of the sale. The statement has to indicate that everyone will assume the client consents if the client doesn’t take any action within 60 days.
Another important requirement is that the new lawyer cannot increase fees. The existing fee agreements have to be honored, as does the scope in the representation. Also, the records and files have to be maintained.
As noted, Rule 1.17 is a big step forward, but it still has problems. Perhaps the total cessation of private practice should be reconsidered. The purpose was to ensure the practice sale takes place. When someone buys a law practice and goodwill, it is obviously difficult to have the full benefit of the goodwill if the lawyer who has sold the practice still has a small law practice in the neighborhood. Clients are going to go back to the old lawyer initially.
But the sale of the entire law practice right now seems to be an important concept. Comment 3 to Rule 1.17 notes as follows: “The prohibition against piecemeal sale of a practice protects those clients whose matters are less lucrative and who might find it difficult to secure other counsel if the sale could be limited to substantial fee-generating matters.”
There can be a situation where some of the clients don’t want to go with the new lawyer. The clients can go elsewhere. They have a right to take their files and get other representation. The question is if there are 10 or 15 clients or more in that category, can the selling lawyer collectively sell them to a second person?
The answer is no as the rule is written. If they won’t go with the original buyer, then they are on their own to get other counsel. But the seller cannot end up selling to two different entities. This rule is written to protect the professionalism of the practice of law and, at the same time, to recognize law as a business and to allow a lawyer to retire or for his or her estate to receive funds for the years of hard work put into building a practice. •