Saturday, August 5, 2023

Of Symptoms and Larger Problems

The Houston Chronicle ran an article this week about local criminal defense attorney Jerome Godnich and the fact that he made over half a million dollars last year in court-appointed fees.  In my current role as president of the Harris County Criminal Lawyers' Association, I was interviewed at length by Neena Satija, the reporter who wrote the article, although a lot of what we talked about didn't end up in the story.

The quote of mine that she did use pointed out the fact that I thought Jerome (as well as other lawyers who have recently come under the microscope for taking on too many cases) gets appointed on so many cases because judges know he is a good and competent lawyer.  In typical fashion (in what has become the story of my life since becoming HCCLA president), by 9 a.m., I'd received one e-mail saying I needed to defend Jerome more strongly and another saying I didn't blast him enough.  

It's days like these that I really miss smoking.

The point that I was trying to convey to Neena when she interviewed me was that I thought that overloaded attorneys are a symptom of a much larger problem.  The larger problem being that there aren't enough qualified lawyers to handle the more complex and serious cases that permeate the CJC on a daily basis.  I also pointed out that the only difference between those overloaded lawyers and myself is that I regulate myself on how many open and active cases I'm willing to take on at any given time.  And I'm routinely asked why I'm not popping up on the list more often. 

Couple that shortage with the way (as opposed to the amount) attorneys doing indigent defense in Harris County are paid, and voila!, you get the incentivization of the overloaded lawyer.

As I wrote back in 2017, the issue in Harris County when it comes to indigent defense isn't the amount that lawyers get paid, but when they get paid.  Under the system, attorneys aren't supposed to get paid for the work that they do on a case until the case is finally disposed of.  As I noted back then, every judge I know is willing to let an attorney file an interim voucher if they need to, but generally, we are supposed to finish the case before asking to be paid for it.  Under that system, an attorney at any given moment can be owed thousands of dollars by the county and is working on the promise that they will get paid eventually.  

Unfortunately, we attorneys aren't provided the same courtesy by people we owe money to.  I wouldn't get very far with my bank if I told them that I'll pay my mortgage as soon as I'm done living in my house.

The way attorneys who rely on court appointments keep their income stabilized is by keeping a steady flow of accepting new cases as older cases are disposed of.  Ideally, that will lead to cases being resolved on a regular basis and an attorney being able to be paid.  The problem is that it isn't an exact science, especially when dealing with more complicated, first-degree cases.  Those cases are far more likely to be set for trial, and how quickly they get to trial can vary drastically on a case-by-case basis.  If a lawyer's balance of incoming to outgoing cases isn't properly managed, that lawyer could potentially go a couple of months (or longer) without getting a paycheck.  

Years ago, when I described how the system worked to my dad, he analogized it to a pipeline, which is appropriate on several levels.  Some attorneys are content to keep a nice, steady flow of cases in their pipelines.

Others keep their pipelines on full blast.

If you are a competent lawyer who handles those first-degree cases, the Courts are more than happy to facilitate the full-blast pressure.

For many critics of the Harris County Criminal Justice System, the suggested answer has been a larger Public Defender's Office.  Given the size of Harris County, the PD's Office is relatively small and handles far less than even half the cases requiring indigent representation.  Some have advocated that the PD's Office be made large enough to handle all indigent defendants in Harris County.   Although I have a tremendous amount of respect for the Harris County PD's Office, I think there are quite a few problems with that idea.  I think it is feasible that the Office grow significantly and take a larger percentage of cases, but that's going to come at a much higher price tag for the County.  Additionally, the PD's Office has some very strict guidelines regarding their case counts and they actually adhere to them.  Throw in things like conflicts of interest and how to handle co-defendants, and I don't think that the private Defense Bar will ever be fully removed from indigent defense, but I could be wrong.  There are just too many Defendants.

Although I think that growing the Public Defender's Office would be helpful to the situation somewhat, I think that more meaningful change can be made by revamping the current case management system (Federation Systems Authentication Gateway aka FDAMS) in a way that bolsters accountability by 1) implementing case caps; and 2) accommodating a bi-monthly payment system.  It would definitely be a big change, but a worthwhile one.

Addressing the issue of case caps first, I have always thought that the standard of how many cases a lawyer handled in a year was less important than how many cases a lawyer was handling at a time.  Under a revamped FDAMS system, each attorney's cases would be tracked as well as the degree of each case.  The judges (or whatever powers that be) could establish how many cases (and of what degree) an attorney was allowed to be appointed to at any given moment.  For example, let's say 15 first-degrees, 25 second-degrees, and 60 third-degrees or State Jails were the numbers.  If an attorney has hit that limit (on any given degree) then they simply won't be eligible to pop up on the list for that degree.  Under that system, the overloaded attorney could still find a way to get overloaded, but not with appointed cases from Harris County.

Switching to the bi-monthly payment system would be more problematic to implement, and the idea would definitely face some pushback from multiple parties -- including the attorneys taking appointments.  I don't do Federal appointments, but I've heard that they follow a system of incremental payments rather than requiring a case be completed before an attorney could file a voucher.  This system would require attorneys to keep more detailed and current records of the work they do on cases, but there would be a two-fold benefit to doing it.

The first and most obvious benefit would be that attorneys would be able to rely on regular payments for the work they had done during the pay period.  There would be no need to keep "the pipeline" full and flowing and therefore the need to overload wouldn't be so tempting.  The second benefit would help not just the attorneys, but the clients and the courts as well.  By logging in the hours on a case in real-time (rather than waiting until a case was finally disposed of), the courts would have access to seeing that cases were actually being worked on.

It's not an infrequent complaint from indigent defendants that they feel their attorney isn't doing any work on their case.   This system would allow the court to check out what hours had been logged on a case thus far to see whether or not those complaints are valid or not.  If a client alleges that their attorney hasn't communicated with them, this system would easily confirm or deny that allegation.  It would incentivize the attorney to make sure he or she is doing what he is supposed to do on a case or risk having to explain themselves to the court.

Like many other attorneys I know, our law firm utilizes MyCase.com to manage our caseloads.  The type of time management accounting that I suggest is a standard part of their platform.  Using this system, attorneys can look at the time they spend on each individual case as well as look at a big picture of their billable hours on all cases over a time period.  Although this may seem like a drastic change from how Harris County currently does things, this is basically just running FDAMS as if it were an actual law firm.

My thoughts are that these changes to the FDAMS system would create an immediate and positive change in the quality of representation of indigent defendants while providing accountability for the system as a whole.  I have no doubt that this would be somewhat difficult to implement, but it would be far from impossible given the advances in technology that we see every day.  I think it would also ultimately be far cheaper than hiring one hundred new public defenders that would be required to keep up with all of the cases filed every day in Harris County.

I'm sure that there are probably some pitfalls in my plan that I'm overlooking, but I'd love to discuss them with anybody willing to have a serious conversation about them.  

11 comments:

Eddie Cort├ęs said...

Let us begin with the definition of "overworked." The standards developed by the ABA are ridiculous! They were set up by Civil lawyers, professors & people that generally aren't down at the Criminal Courthouse every day grinding it out. The requirements established to accept appointments in Harris County are based on standards most attorneys won't see in their entire careers...unless they're former DA's. So let us begin there: that most of the attorneys on the 1st Degree List know how to value a case. And don't need a slew of motions & hearings to get the client where he wants to be. Let us START the conversation at Court Appointed lawyers making 20% of what they would make if the cases were privately retained! Let us start the conversation at we consistently do the impossible for the ungrateful!!

Anonymous said...

Alright first of all I think it’s suspicious that every time the PD’S office is asking for a raise or for more staff stories like this pop up. The private defense bar just needs to get paid better and the caps need to be adjusted. Lower the amount for the private defense bar but raise the PD’S office. Try working a case with them when you share a Co-d and you would be hard pressed to find them after 1 pm.

Honestly the whole system needs to have case caps. I have seen so many felony ADA3 who are super overworked just like the private defense bar we need to do better. I think the only people who aren’t overworked are the PD’S office.

Anonymous said...

I cant disagree with much said here.

Murray, are you suggesting the media might be lying about what you said and did?


That you tried to have a nuanced conversation and they context-denialed you in order to support the narrative they were going to publish no matter what?

The real problem (and everyone knows it) is that demographic change is putting the uncontainable pressure on our system. The answer is not merely more money or better administration.

We should use our resources to eliminate the very presence of criminals from our neighborhoods, our cities, our country. Mass expulsions of all immigrants.

Likewise, for those who are citizens we can stop paying for their defense entirely and let nature take its course.

Lee said...

I continue to wonder why lawyers cost so much.

Murray, Breakdown a typical fee and tell me where that money goes. What overhead do defense lawyers have that justifies their fees?

Murray Newman said...

Lee,
Lawyers get paid for the time they spend on a case. In Harris County, the appointed rates are $125 an hour for 3rd degree and State Jail Felonies, $150 an hour for 2nd degree felonies, $175 for 1st degree felonies, and $200 per hour for Capital Murders (2nd chair) and $250 (I think) for Capital Murder 1st chair.

It's pretty good pay compared to other counties, but it is below what free market price would be on retained cases. Those are normally billed as a flat fee and when the work done on an appointed case is totalled out, it is usually far below what a retained case would be quoted.

Lee said...

Murray,

I have seen many lawyers in the private sector charge up to $500 hourly and even require million dollar retainers on capital cases.

On the court appointments does the lawyer with 20 years of expierence get paid the same as the lawyer with 5 years of expierence? In the private sector the lawyers would be paid consistent with qualifications.

What is the expense breakdown for the fees what ever astronomical levels that they reach. Give us some specific munbers for what you might be paid for a 1st degree felony and what your overhead is.

Murray Newman said...


Lee,
The amount of experience that a lawyer has is irrelevant to the pay scale. It is based completely on time and level of offense.

The expense breakdown would depend on the lawyer and the case, I guess. These things do have to be specified when filing a voucher. There are some broad categories that a person can click on like "Witness Interview," "Jail Visit," and "Records Review," as well as "Other." If you click "Other," you have to describe with more specificity what that means. You can't just click Other and that be it.

For instance, I spent the weekend doing a combination of watching officers' body worn camera footage, listening to witness statements and reading offense reports. Each one of those will ultimately be specified out on the individual cases that I was working on. Overhead charges don't factor into it, usually. I did recently add expenses for a large amount of blown up photos that I entered as exhibits in trial, but that's it.

Lee said...

Murray,

Follow up Question,
1) If you have your legal assistant downloading the discovery of an appointed case (hours of video footage for example) do you get to bill the court for the work that they do as if you were doing the work or does the legal assistant's salary come out of your pocket?

2) Is there a quota or median amount of time that the court expects you to provide on a case? Will you attract the ire of the court if you spend too much or too little time on a case? Is there a maximum cap that the court will reimburse regardless of time spent on a case?

3) Even if I were to privately retain counsel an a fee basis to handle a misdemenor, it is a ballpark figure of $3,000-$6,000. How do lawyers arrive at these fees? I suppose that this works like any other business in that to profit, you must clear your overhead. Can yo trace the thought process on what overhead lawyers are considering that they have to clear when they quote fees?

Lee said...

Murray,

When you say that the expierence and skill of the lawyer are irrelivant to the pay scale, should we infer that novice lawyers are held to the same preformance standard as Matlock? Do you think this is as it should be or would you suggest differently?

Anonymous said...

Lee, I think Murray is saying that the experience and skill of the lawyer is irrelevant to the pay they receive for appointed cases only. Now, you do have to have a certain amount of experience to get appointed on certain cases. You're not going to be on a death penalty case if all your experience is in JP court with traffic tickets. That would just be an easy appellate win on "ineffective assistance of counsel" and the case would have to be re-tried. Whatever.

The point is, that the private market does take into account experience and more importantly, results. I think your questions are really demanding on Murray's time, and that's unfair. I however, enjoy this shit.

Whatever I think of your questions, I do believe that they expose precisely why the state should not be carrying the legal bills for anyone accused of a crime.

Your questions are leading up the the conclusion that appointed attorneys are controlled opposition because the state signs their paycheck. The controlled opposition is to add the illusion of legitimacy to the proceeding. This is true. And because it does not really add legitimacy, we should stop spending money on nothing but theatre.

Frankly, the fact that you've paid few thousand for a few misdemeanors is a good deal. If your case is $3,000.00 and takes 18 months, that's about $160.00 a month. Not really a lot considering the amount of work your lawyer does on your case each given month. If he works for 5 hours a month, that's about $30 an hour. That's average for skilled labor, but attorneys have an education to pay for too. If I were you, I'd be grateful it's not worse.

The fact it's not is just proof that the system is really on your side. You are the weapon.

Lee said...

Murray, Where have you been? I miss your legal horror stories.

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