I find the list to be extremely interesting because it is very well done. There is a breakdown between misdemeanor, felony and juvenile appointments by attorney. Also included is the ideal number of attorneys each caseload should require as recommended by the National Advisory Commission. The numbers are startling and unsettling.
Before I delve into the numbers, I'd like to point out a couple of things about how appointments work in Harris County -- specifically how Felony appointments work.
First off, all attorneys who accept felony appointments in Harris County have to take a test to be on the list. Once they pass that test, they are certified to handle either State Jail/3rd Degree cases, 2nd Degree cases, or 1st Degree cases. Those who are appointed on Capital cases have more stringent requirements that I'm not going to address for the purposes of this particular blog post. In my case, I am 1st Degree certified, which means I can be appointed on any non-capital felony.
As an attorney who will take felony appointments, I have access to a calendar where I can put in a request or notice of availability to take appointments. I can mark on the calendar that I am available to take an individual case appointment or that I am available to be the "Attorney of the Day" for a court. A court coordinator who needs to bring in a court appointed attorney will bring up a computer screen with (I believe) ten attorneys' names and the coordinator can then make a selection out of those names to give the appointment to.
If you are assigned to take on an individual case appointment, the maximum number of new cases you can get assigned to each day is two. If you are working on pre-existing appointed cases, the most you can get paid for is four a day (NOTE: you can have more cases on any given day, but you will only be paid for four of them). If you are signed up to be an Attorney of the Day, you are paid a flat daily fee for handling up to five cases for the court per day. More often than not, courts appoint attorneys for the entire week, meaning a lawyer could end up with 25 new cases in one week.
A few weeks ago, Robb Fickman announced that he was highly concerned about the number of cases some attorneys were taking appointments on. At that time, he said he would be "naming names" of attorneys who were overloading themselves with cases, and I wondered where I would fall on that list. I take a pretty even split of retained cases and appointed cases and I generally try to keep my active number of cases somewhere around 50 at any given time. If I'm getting too far ahead of that, I take my name off of the appointments list. If I get significantly below, I put my name back in. I never really pay attention to how many cases I handle a year. I pay attention to having a workable amount at any given time. Some cases don't take very long to work out. Some can pend for over a year.
As it turns out, I'm doing just fine on the list. I came in at under the recommended levels for how many cases any given attorney should be handling. Many of my brethren and sistren in the Defense Bar did not do the same. The top four most-appointed attorneys are each working caseloads that are recommended to be handled by 4.1, 3.5, 3.2 and 3 attorneys respectively. Number one on the list received over 800 cases in 2011.
The common denominator in those Top Four attorneys is they are all Spanish-speaking attorneys. Eight of the Top Ten are Spanish speakers, as well. As my friend and colleague Jackie Carpenter pointed out in an e-mail, I believe that a tremendous contributing factor in why so few attorneys are receiving so many cases is due to the relatively low number of Spanish-speaking attorneys on the appointed lists.
Living in the largest city in Texas means that there is going to be a large number of crimes committed by people who don't speak English. To effectively represent a person, in my opinion, you absolutely must be able to communicate to them in a language you both understand. In my conversation with Robb about this latest crisis, he offered the solution of having more interpreters available. I respectfully disagree that this solution would work. It is easy to have an interpreter meet you in court to talk to your client. However, it is not easy to have one join you every time you want to go talk to your client at the jail or go interview witnesses that require a translator, as well.
The real answer is that there is a tremendous need for more Spanish-speaking attorneys who are willing to take court appointments. It is my understanding that there are currently less than ten Spanish-speaking attorneys who do 1st Degree appointments in Harris County. Given the size of our county, that is staggering.
There needs to be a push to get more attorneys qualified to handle serious cases where there is a language barrier. There is already a small financial incentive for attorneys that speak a foreign language (I believe). That incentive should be increased.
Additionally, those Spanish-speaking attorneys who thus far are not qualified to handle higher-level felonies should be given the opportunity to get on that list by retesting or sitting second chair to get enough trial credit to qualify. The rules of appointments in Harris County aren't unchangeable. Recently, a judge who lost her bench in November was allowed to be on the First Degree appointment list despite the fact that she never passed the appointment examination in the first place. If an exception can be made to help out a former judge, surely something can be done to increase the number of qualified Spanish-speaking attorneys on the list.
Furthermore, careful attention needs to be paid to what kind of cases those attorneys who do, in fact, speak Spanish are being appointed to. For instance, if a 1st Degree qualified Spanish-speaking attorney is being appointed to an English-speaking State Jail Felony defendant, resources are being wasted.
Fickman suggested there be a change to the way appointments are generally made, and I don't disagree with the majority of his plan. However, in my opinion, the language barrier issue amongst appointed attorneys is the largest contributing factor of overloaded attorney appointments.
Ultimately, it is a supply and demand issue. Until it can be resolved, I don't think there is going to be a significant change in the stats we have been seeing.