Samuel Stretton
Samuel Stretton ()

New court-appointed counsel system still needs improvements.

I saw Philadelphia has a new fee structure for court-appointed conflict counsel. I noticed there have been increases across the board. Is it a good system now?

The answer is very easily no, it’s not a good system. First and foremost—though new rules have been promulgated–there’s no money to pay the increases. Perhaps that will change, but it’s still a major problem.

As I’ve urged in the past, there is a need now for state funding of all indigent defense systems throughout the commonwealth of Pennsylvania. There’s a hodgepodge of different systems, none of which really are ethical. Many of them don’t pay enough funds and some of them which pay flat fees have no bearing and no relationship to the number of cases or clients a lawyer is handling. Philadelphia has had a combination of a flat preparation fee and then per diem trial fee, but the rates have been so low in recent years that it seriously infringed on the ability to get competent representation. If lawyers did their job, they were ending up getting paid at $2 or $3 an hour, depending on the amount of time spent. That does not make for a competent system, particularly if you have lawyers who are emphasizing indigent criminal defense work. It’s one thing if a lawyer does two or three appointments as a favor to the court. It’s another thing if 60 to 70 percent of one’s practice is indigent defense when the fees are low, and at times the fees are cut.

In this modern world, days of all lawyers handling court-appointed cases are long gone. Criminal law has gotten complex and unlike 100 years ago, a civil lawyer can’t just walk over to the criminal side and do a good job without spending a substantial effort to get up-to-date on criminal law. That’s why it’s very important to encourage lawyers who wish to emphasize indigent criminal defense to do so. These lawyers aren’t looking to make a fortune, but the rates have to be enough to at least make a living within reason. Of course, there’s always new lawyers coming in, but the problem is new lawyers come in and take a number of cases and then disappear after a year or two. The system wants to encourage and keep the experienced lawyers who are willing to take a number of these cases and do them year after year.

A statewide uniform funding system of paying court-appointed counsel is the only answer. The Pennsylvania Supreme Court has been working at getting this statewide funding concept through the Allegheny line of cases. But, it’s never resulted in anything other than interesting decisions. Now there is a crisis in court-appointed cases.

The judges in Philadelphia County entered an order on June 26 raising the court-appointed fees. The committee of lawyers who worked with the court system in negotiating these increases spent substantial time and should be commended for trying to make the system fairer and better.

Through no fault of the team of lawyers, the new amounts are just not enough. For instance, in Philadelphia County, if one handles a felony appellate PCRA petition, the lawyer can now bill $65 an hour in court and out of court. If it’s a homicide PCRA, one can bill $85 an hour. The rub is the cap. For felony appellate PCRAs, it’s capped at $2,400. For homicide PCRAs, it’s capped at $6,000.

Just looking at that makes one realize that they are unlivable rates. To get $65 an hour or $85 an hour is far too low. Further, at least in the past, these fees are often cut. A $2,400 cap makes no sense at all. To do a felony PCRA appeal that starts at the trial level, it’s going to at a minimum, if done right, at least 100 to 150 hours of work, if not more. A homicide PCRA would probably involve more time. But, these rates are essentially unlivable. Sixty dollars an hour, which will probably be cut, will not sustain a law office.

For felony trial preparation, there is a new preparation fee of $1,200 if it is a first-degree felony. For other felonies, it’s only $750. The old fee was $650. One of the problems with this two-tier system is it creates conflicts. If one goes to a preliminary hearing and there are first-degree felony charges, the lawyer has conflicting interest not to get the first-degree felony charges dismissed at that point so they can get the higher preparation fee. Presumably, lawyers wouldn’t do that, but a clear conflict is created. A serious felony case where trial might go for four or five days, $1,200 or $750 is a pittance and not enough. The homicide preparation fee has gone up from $2,000 now to $3,500 on noncapital. It’s still $10,000 for capital. $3,500 is a joke in terms of serious homicide preparation. Also, it must be remembered that these new fees aren’t paid timely. It’s only after the case is done and usually five to eight months later. So, during the entire preparation, trial, etc. the lawyer is unpaid. The new rules suggest timely payment of 60 days. But the old rules required payment in 30 days. That never happened and eight months of delay was the norm.

Investigative fees are only $300 for a homicide and $100 for felonies. The maximum billable is $500 and then one can get a court order. For an expert witness, the fee is $750.

No one can get court-appointed people to work for those rates. Present counsel, in doing court-appointed cases in Philadelphia, has to put his own money out. It’s ridiculous.

The daily rate now for felonies has gone from $350 to $400 a day. The homicide rates have gone from $400 to $600 a day. For a regular law firm, overhead is somewhere in the range of $1,000 to $2,000 a day. One can see how limited these fees are. Fees for Family Court Division have many of the same problems.

The legislature and the Pennsylvania Supreme Court have to reach some hard decisions. The famous Gideon case requires counsel and competent counsel. But, the public and legislature doesn’t want to pay for criminal defendants. This is a very unpopular matter unless one’s family member is actually charged with a crime. Then people have a different perspective.

One has to understand that court-appointed counsel must appear at status hearings and everything else. Judges don’t allow court-appointed counsel not to appear for hearings that aren’t necessary, such as a status or are you ready for trial type of hearing. In fact, most judges have no comprehension of how these rates are so low. Most judges haven’t tried criminal cases regularly as trial lawyers or have been with firms or came from public employment. They don’t understand the concept of overhead. Present counsel recalls when he chaired the Court-Appointed Committee back in the 1990s and wrote the first court-appointed system which was supposed to increase 10 percent each year, the judges would often throw up the issue that there were some court-appointed lawyers who made $100,000 to $120,000 a year. Of course, that was true, but they were trying cases almost every day. What the judges didn’t comprehend was that at $120,000 with the overhead, might only result in $20,000, $30,000 or $40,000 going to the lawyer. There are very few lawyers like the legendary Chippy Patterson who could try criminal case after criminal case successfully from the time period of 1900 to his death in 1933 or 1934, not have an office other than papers he kept in his hat and not have a telephone other than the old phone booth that used to be on the corner of North Broad Street. Chippy Patterson also drank all night. Not too many lawyers could do that and in this modern age no lawyer could do that successfully over the long run. Lawyers need offices, staff, overhead, etc.

In essence, the new rates are just another unethical system. How can judges in good conscience vote for an unethical court-appointed system? Philadelphia County court appointed rates are some of the lowest in the nation. Yet, the court approves these rates, which clearly defeat the purpose of a strong, indigent bar and undermine the Gideon legacy.

The Supreme Court of Pennsylvania has to act now. If society wants to charge criminal defendants and bring them to trial, then society has to be willing to pay reasonable costs for representation. That is not occurring. Only the Pennsylvania Supreme Court had force the issue of a uniform, statewide adequately funded criminal defense system.

If there is any question that the court system doesn’t appreciate the court-appointed counsels doing these for a small amount of money, which they don’t get paid until years later, just look how the Superior Court treats court-appointed counsel. Court-appointed counsel miss deadlines or don’t file briefs and the Superior Court will routinely just send the attorney over to the Office of Disciplinary Counsel. In other words, Superior Court treats court-appointed counsel the same as all other counsel who might be paid $50,000 or $100,000 to do an appellate brief if they are privately retained. There is no defense in the disciplinary system that I was court-appointed, doing public good and was just overwhelmed with work or the payment rate was so low, I couldn’t get the case finished. In days of old when the court system couldn’t function, the Supreme Court filed a mandamus to enforce the system, the legislature, and the executive branch to properly fund judicial functions. It takes courage to do that, but maybe the time has come again.

But, to answer the question, the good news is that the Philadelphia system has at least attempted to raise the rates, the bad news is there is no money to pay them and the new rates are still ridiculously low. These rates seriously infringe on the constitutional right of effective assistance of counsel and essentially the Court of Common Pleas and ultimately the Supreme Court of Pennsylvania are complicit in not fulfilling the constitutional obligation of providing effective assistance of counsel to indigent criminal defendants.

Attorney-client privilege starts the second someone seeks advice.

I am a young lawyer and I want to know when the attorney-client relationship begins?

The answer is very simple, although it is shocking how many lawyers don’t understand it. The attorney-client relationship begins when someone consults with a lawyer on any issue with the expectation of some confidentiality. One doesn’t have to be paid a fee for the attorney-client relationship to commence. One may not continue with the attorney-client relationship if a fee is not ultimately paid, but there was still an attorney-client relationship during that interim time period, however brief the consultation or discussion was.

Therefore, if someone is at a party and pulls a lawyer aside to talk to the lawyer on a confidential matter, there’s been an attorney-client relationship even if it’s for that one brief conversation. That could have an effect down the line if, for instance, later someone on the other side of that conversation retains the lawyer when the first person who had a brief conversation does not. If a former client calls an office and tells a secretary or a lawyer confidential information but doesn’t hire them, there is still an attorney-client relationship. If a client discharges a lawyer, but calls them back, the information given during the call back is still confidential unless the lawyer clearly makes it known to the client there is no relationship and there can no longer be any expectation of privacy (In re Investigating Grand Jury, 887 A.2d 257, Pa Super, 2005). The Rules of Professional Conduct have attempted to deal with prospective clients who speak to an attorney and then never finally hire them. Rule of Professional Conduct 1.18 was initiated several years ago by the domestic bar that had the unfortunate experiences of seeing people consult with a number of divorce lawyers with the purpose of conflicting other competent lawyers before retaining someone. Therefore, their spouse would not be able to go to those other excellent lawyers.

This rule is found at 1.18 of the Rules of Professional Conduct and is titled, “Duties to Prospective Clients.” That rule recognizes that when someone talks to a person, the lawyer cannot reveal or use information that would be harmful. A lawyer cannot represent a client with interest materially adverse to a prospective client if the lawyer learned information that could be harmful to the prospective client. The rule does allow the opportunity for the firm to continue under Subsection D, either by consent or proper screening with written notice.

Lawyers who meet with multiple clients also should be fully aware of future problems. It’s not uncommon that a criminal defendant will call and bring his friend who is being charged as a co-defendant to meet with the lawyer hoping to get a shared fee. Although that may seem like a good idea initially, it’s a very bad idea because if their interests should diverge, then the lawyer is going to have to get out due to a conflict and perhaps can’t represent either of them and might also have to return the fee. Similarly, when the driver and passenger come in on a personal injury to the lawyer, the same thing could happen. This is particularly true if the driver if joined as an additional defendant. If the lawyer is disqualified because of a conflict, then there is a question whether the lawyer can refer the conflicted clients to someone else and get a referral fee. The traditional answer would be no, although there is some suggestion in this modern world that the answer could be yes.

In conclusion, if someone speaks to a lawyer on a personal legal issue where it is clear they are expecting some sort of privacy or confidentiality, then there is an attorney-client relationship. No fee is required. If a lawyer does not want the attorney-client relationship to attach, then the lawyer must make clear to the person there is no confidentiality. From a practical standpoint, the lawyer may forfeit future business by being so abrupt. But, the attorney-client relationship starts the second someone seeks some form of advice. •