“I don’t think he was ever called ignorant or unaware of the law,”
That’s attorney George Douglas, speaking of former Alabama AG Bill Pryor. The occasion for the remark? Current AG Troy King’s opinion – contrary to an AG opinion by Pryor – that Alabama’s compensation for indigent defense does not include the attorney’s overhead expenses.
The issue has been in court ever since King issued this AG opinion, holding that attorneys representing indigents can not recover overhead expenses. A circuit court has already ruled against King, and the state Supremes heard oral argument yesterday. King ought to lose. Whether he will or not, I do not know, but he should.
Alabama Code 15-12-21(d) sets the fees for indigent defense:
the amount of the fee shall be based on the number of hours spent by the attorney in working on the case and shall be computed at the rate of sixty dollars ($60) per hour for time expended in court and forty dollars ($40) per hour for time reasonably expended out of court in the preparation of the case. The total fees paid to any one attorney in any one case, from the time of appointment through the trial of the case, including motions for new trial, shall not exceed the following:
(1) In cases where the original charge is a capital offense or a charge which carries a possible sentence of life without parole, there shall be no limit on the total fee.
(2) Except for cases covered by subdivision (1), in cases where the original charge is a Class A felony, the total fee shall not exceed three thousand five hundred dollars ($3,500).
(3) In cases where the original charge is a Class B felony, the total fee shall not exceed two thousand five hundred dollars ($2,500).
(4) In cases where the original charge is a Class C felony, the total fee shall not exceed one thousand five hundred dollars ($1,500).
(5) In juvenile cases, the total fee shall not exceed two thousand dollars ($2,000).
(6) In all other cases, the total fee shall not exceed one thousand dollars ($1,000).
Notwithstanding the above, the court for good cause shown may approve an attorney’s fee in excess of the maximum amount allowed. Counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in the defense of his or her client, to be approved in advance by the trial court.
The dispute centers on the highlighted language. Before King’s opinion, everyone was in agreement that this language included overhead expenses. That is, every time an attorney represents a client, part of the fee is that client’s share of the expenses incurred in keeping the office open: rent, utilities, employees, equipment, etc. An opinion by Bill Pryor even held that an attorney practicing out of his apartment could recover overhead. King, however, decided that this language meant only expenses directly related to the defense: expert witnesses, filing fees, court reporters, etc.
So how did King change the situation? Here is the key section of his opinion:
The decision of the Alabama Court of Criminal Appeals that office overhead expenses were reimbursable was based on the predecessor language to the language emphasized above: “any expenses reasonably incurred in such defense.”
His argument is that by replacing “such defense” with “the defense of his or her client” the legislature clearly intended to stop the existing practice of reimbursing attorneys for overhead expenses.
Can you say “results oriented reasoning?”
First, the important language is “reasonably incurred in.” It does not say “directly related to.” Part of every fee is a share of the expenses necessary for the office to stay open. A lawyer can not represent clients without an office and equipment any more than a mechanic can work on cars without a shop and tools. That is just the cost of doing business, and every client pays for it because every client benefits from it. Overhead is incurred in every case. The reasonableness of the amount may be disputable, but the necessity of some amount is not.
Second, the new language says the same thing as did the old language: “Such defense” obviously refers to the defense of the client. So if the overhead was recoverable under the old language, it is also recoverable under the new language.
Why does this matter? Under King’s interpretation, lawyers who represent poor people are doing so for free. The forty to sixty bucks an hour that they now receive will barely cover their overhead. That means they get no compensation for their services to the client. For a typical jury trial, that could mean the lawyer receives no compensation for several days worth of work.
That is not fair to the lawyer or to the client. As for the lawyer, sure we all ought to occasionally give away our services for free. But that is very different from the state fulfilling its constitutional obligations by mandating that lawyers work for free. As for the client, it’s all about incentives. Some attorneys cannot afford to work for free. Others can, but are not going to sacrifice three hundred dollar hours for zero dollar hours. Those who are willing and able will still have to do the indigent’s work in the shortest time possible. When the compensation is zilch, corners must be cut.
The result is that one side of the adversarial system is not well represented. That means the system does not work. The truth, then, is the ultimate victim.