Harris County's felony judges have come under fire from Commissioner's Court members for not moving fast enough to abolish the longstanding practice of judges appointing lawyers to represent poor defendants.The article details much of what I discussed in this post about the MAC back in July. As I wrote then, the Harris County Felony District Court Judges by no means have rejected the idea of a MAC, but they have asked for more time to design how it would be implemented. I also shared my multiple concerns about the initial proposal from the Texas Indigent Defense Counsel. Several of the Felony Court Judges, as well as representatives of the Harris County Criminal Lawyers Association (HCCLA), have shared the same concerns.
Apparently, Rodney Ellis is not the patient type and has demanded that the Felony Courts blindly accept his ideas without having any say in how they will work in the years to come. That's just foolish. If the program is going to be effective and capable of dealing with the multitude of complex issues that go along with indigent defense in felony cases, then the District Court Judges would be crazy not to carefully evaluate all aspects of it. Ellis just needs to calm down.
That being said, Ellis' strongest criticism of the current appointment system is that there are many attorneys who are carrying far too large of a docket, and that's fair if you are looking at things from a purely statistical standpoint. However, it also begs the question: Why would an attorney intentionally overload his or her caseload? Are these attorneys really just blindly accepting new cases for no reason other than they can?
The answer to that isn't quite so simple, and the reality is that many of these attorneys with overloaded dockets are taking on so many cases because they are trying to manage the archaic payment system put in place by none other than . . . the County Commissioners themselves.
In today's world, when people go to work, they normally get paid for that work. They also get paid in a time period that is reasonably close to the time the work was done. If one works a job where he or she is paid by the hour, a paycheck normally is paid at the end of every week or two. If one works a salaried position, there are obviously scheduled payments for when that salary gets doled out.
In the legal world, attorneys usually charge a retainer that gets drawn on during the course of the representation. A client may pony up a hefty retainer that gets placed in a trust, but the lawyer or law firm only takes the money out of the trust once that money is earned by working on the case.
The bottom line is that the vast majority of people who work get paid for that work reasonably quickly.
But that's not the case with those of who do indigent defense in Harris County.
Before I start sounding too critical of the System, I will point out that I think that Harris County pays well for indigent defense. Although it doesn't quite approach "free world" payment, it isn't too shabby and it does pay you for the work you've done (eventually).
However, the Harris County payment system dictates that an attorney doesn't get paid on a case that he or she is appointed on until that case has been finally disposed of, and that's a problem.
Let's say that tomorrow, I get appointed on a murder case that is extremely complicated. As a matter of fact, let's just pretend that it is so complicated that I decide not to take any other cases while I deal with this insanely complex case. Over the next month, I pour over lengthy offense reports, read cell phone data, watch scene videos, meet with my client repeatedly, talk to my investigator, conduct witness interviews, do scene visits, and attend a couple of court settings.
Let's say that this one case is pretty much my one and only job for the entirety of the month. By the end of that month, I have billed over $20,000 worth of legitimate, honest, hard work on this murder case. It is now the end of the month, and I've got to pay my mortgage, credit card bills, child support, utilities, which should be no problem, right?
Wrong. That murder case is still easily a year away from going to trial. With the backlog of cases and the lingering effects of Hurricane Harvey, in reality, it could be much closer to two or three years before going to trial. In the meantime, that $20,000 worth of payment that I'm owed continues to sit in the Harris County coffers while I try to figure out how I'm going to make my mortgage and feed my kids. I did my part, but we are going to have to delay payment on that for a significant amount of time.
So, what am I supposed to do?
Well, the answer to that is generally, sign on to take another case.
So, let's say I decide to sign up for a second case. Fortunately for me, this one is far simpler. It's just a crack rock case, a simple State Jail felony. So, on day one, I get my case and I read the three-page offense report in court. The case is straightforward and can be worked out, except for one thing -- the lab report on the alleged substance isn't in yet. I can't plead my client out on a drug case if the State hasn't shown me a lab report proving to me that it is actually an illegal drug.
So, I reset it to wait for labs and I don't get paid on that case this month either.
So, I take another case. And then another. And then another. And then some more. I'm loading up my caseload because I need to get to where I'm on a timeline where payments are coming in. When I first became a defense attorney, I described how the system worked to my dad. He likened it to a pipeline, noting that failing to keep the pipeline filled can lead to some pretty lean months.
The attorneys who are overloading their dockets are the ones trying to keep that pipeline flowing continuously, as anyone who dislikes being broke would. They take the next case and then the next. Most of those cases may need only a lab report. Others may be as complicated as that hypothetical murder. Either way, I will agree that an attorney carrying a tremendous caseload does provide for some pretty bad optics.
An exception to the "pay when the case is done" plan is for those attorneys that take "term" assignments. They agree to be a Court's attorney of the day or the attorney of the week for a daily rate. For a term assignment, an attorney can be paid on the next pay period. However, when an attorney is an attorney of the day or week, he or she can be assigned up to five new cases a day, and that doesn't help the caseload overload either.
If I need to get a payment and I need it by the end of the month, I could sign up to be the attorney of the week all month. Let's say hypothetically, I get an assignment for four weeks straight, and I pick up the full five cases every day. Suddenly, at the end of the month, I have 100 new cases.
Judges have the power on a case-by-case basis to approve interim vouchers. If an attorney has worked his butt off on a case and it gets set for trial six months down the road, most judges will approve an attorney getting paid for the work done up to that point. I can honestly say that I have never been turned down by a judge when asking for an interim payment during that time period.
However, it is definitely not the norm.
The solution to this problem is simple: let attorneys get paid for the work that they do as they do it.
When the system of not-getting-paid-on-a-case-until-it-was-over was developed, payment vouchers and time logs were all handwritten. Now, it is computerized. Making sure that lawyers aren't double billing for hours already claimed and identifying time conflicts can be done with decent software. It is my understanding that attorneys who do appointed CPS work have the ability to "bill as they go," so why can't those of us who practice indigent defense?
It would definitely have a strong and immediate impact on those attorneys who overload their dockets. There would be a financial motivation to sit down and focus on a case rather than focusing on getting the next case. The pipeline methodology of managing a law practice would no longer be relevant. In theory, cases could be resolved more quickly and the quality of representation would improve as a whole. There wouldn't be pressure to resolve a case for financial reasons.
In short, it would address many (but not all) of the concerns the Commissioners have listed when advocating for the MAC.