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Bar News - January 15, 2014

Opinion: Time to Increase Compensation for Appointed Counsel


Richard Samdperil
It was September 2006, and my law partner, Joe Welsh, and I had just started our own practice.

We had a state contract to provide indigent defense services. It was a good way to start. We had spent almost our entire careers up to that point as public defenders. Having that contract meant guaranteed monthly income – a way to keep the lights on.

Less than three months later, we accepted an assignment to represent one of five men charged in a murder for hire. Assigned cases, such as first-degree murders, are not included under the contract, and court-appointed lawyers are instead paid $60 per hour. It seemed like a good idea – our caseloads were low, the case seemed interesting, and it was paying work.

That was before the 40,000-plus pages of discovery and the 200 media discs, before the state decided to seek the death penalty against one of our client’s co-defendants, and before we had a full caseload of other appointed and retained clients.

Our client eventually entered into a plea agreement with the state, meaning Joe and I didn’t have to spend the nearly two years between arrest and the co-defendants’ trials litigating and preparing the case for trial. A death penalty trial would have shut down our small practice. It would have required both of us to commit 100 percent of our time to this case. Even if our client’s case had gone to trial as a non-capital, first-degree murder case, it would have taken a month or more to pick a jury and try the case, which would have meant declining most new clients and placing all other cases on hold.

That hourly rate of $60 was set in 1992 – 22 years ago, and it hasn’t increased since then. The federal (CJA) rate for indigent defense is currently $110 per hour, and $178 per hour in capital cases. Until the federal government sequester went into effect in September 2013, the CJA rate had been $125 per hour for all non-capital cases, homicide or not. Additionally, under the CJA Guidelines, “time spent in necessary and reasonable travel is compensable.” Under Supreme Court Rule 47, the rule that governs counsel fees and expenses in indigent criminal cases, mileage is billable, but travel time is not.

The CJA rate has generally increased to match inflationary raises given to federal employees, such as federal prosecutors. Although New Hampshire state employees certainly have not had it easy in recent years, it is difficult to imagine a state employee or other state contractor who has gone two decades without a pay increase or cost-of-living adjustment. Yet, for the state court lawyers who handle the most difficult, most complex, and most serious criminal cases, there has been no change in pay since the elder George Bush was president.

Here is why this matters: New Hampshire has not formerly adopted any standards or rules for appointment of counsel in capital cases or other homicides. The defense bar, and the NH Public Defender in particular, has always been self-regulating and has done an excellent job finding experienced and properly qualified counsel in homicide cases. Most defense lawyers are in small or solo firms, and they recognize that one, maybe two, open murder cases at one time is the practical limit for continuing to maintain a functioning practice.

The lawyers who continue to accept homicide appointments do so out of obligation and their willingness to handle such cases, not because they expect to be fairly compensated. As it is in most places, this is a legal service being provided to the state at a discounted rate, which is understood, but that now severely discounted rate is increasingly less justifiable. The reality has always been that $60 per hour is not what the lawyer “makes.” Lawyers have offices, pay staff, maintain insurance, and require equipment like copiers and computers. For any reasonably successful defense firm, that math is harder and harder to justify.

The time is coming when that pool of qualified lawyers will get smaller, when the costs of handling such cases will so greatly outweigh the commitment, that fewer lawyers will accept such appointments. That perfect storm – a multiple-defendant, capital murder case, a modest uptick in the number of New Hampshire homicides – is out there, and it is time we start thinking about it.

And this problem also goes well beyond that worst-case scenario. It raises practical concerns in routine homicides and other assigned-counsel cases. It is no secret that low-quality counsel and a lack of resources have been directly linked to wrongful convictions. Although we in New Hampshire do not associate ourselves with those underfunded, poorly resourced, dark corners of injustice in other states and counties, ignoring issues of fair compensation and minimum qualifications for defense counsel in homicides is moving us closer to those places. The American Bar Association, which has promoted standards and established principles for the delivery of justice, has attempted to address these concerns. The New Hampshire courts and the Bar should, too.

The time has come to revisit the rules that govern appointment of counsel in capital cases, and other indigent criminal cases. The hourly rate needs to increase, particularly for homicides. What constitutes qualified counsel in homicides needs to be formally defined. And those lawyers need to receive specialized training before being appointed to such a case.

Richard Samdperil is a criminal defense lawyer in Exeter, NH, and chair of the NHBA Criminal Law Section. He has been appointed to represented indigent defendants in criminal cases, including pending cases.

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