DATE: Saturday, October 18, 1997            TAG: 9710160012

SECTION: LOCAL                   PAGE: B8   EDITION: FINAL 

TYPE: Editorial 

                                            LENGTH:   87 lines

COURT-APPOINTED ATTORNEYS PAY CAPS TOO LOWWHEN A JUDGE CALLS PAY MAXIMUMS "REPREHENSIBLY AND SHAMEFULLY LOW," IT'S TIME FOR THE GENERAL ASSEMBLY TO ACT.

Generating concern for underpaid lawyers is an uphill battle, but Virginia's court-appointed attorneys are the poorest paid in the nation. And their pay from the state for representing indigent defendants is so low as to mock the concept of equal justice for all.

The maximum pay allowed for representing a person accused of a felony punishable by more than 20 years is $575. For lesser felonies, it is $265. For misdemeanors tried in Circuit Court, it is $132. For Juvenile and General District Court cases, it is $100.

Those caps are written into law and can't be waived. When it comes to defending its impoverished citizens in criminal court, Virginia deserves a poor grade.

The single exception is a felony punishable by death, in which case there is no cap on a court-appointed lawyer's fee, except that it is supposed to be reasonable.

In fiscal 1996, court-appointed attorneys in Virginia represented 147,683 indigent defendants, at an average of $181 per defendant.

If you needed a lawyer to defend you in court and one promised to handle your entire case for $181, how confident would you be of the lawyer's ability or enthusiasm for your case? Many lawyers' hourly rates are higher than that. Rest assured the prosecutors, though hardly overpaid, are making far more.

Only the most naive could possibly believe that indigent Virginia defendants are adequately represented at the current rates. Certainly, many lawyers provide competent representation, but they are often forced to do so at considerable financial loss to themselves.

States have to provide legal representation to indigent defendants, under the U.S. Supreme Court's interpretation of the Sixth Amendment right to counsel. But the pay for court-appointed lawyers varies wildly from state to state, and in some states from county to county.

Virginia's maximum pay cap will increase next July from $575 to $735, but that's still well below the next-lowest cap of $1,000 in several states. And other states, unlike Virginia, permit the caps to be waived if lawyers can show they have worked excessive hours or have incurred high expenses. Twenty-one states have no caps at all; they merely set rates per hour. Three states have maximums of $5,000. And even those high caps can be waived.

A state Supreme Court study a few years ago said that poor Virginians may not be receiving adequate defenses because lawyers' low pay encourages them to scrimp on ``reasonable and prudent expenses,'' including investigations into defendants' guilt or innocence.

In a 1995 Pilot story on low pay for court-appointed lawyers, Fay Spence, a local full-time salaried lawyer, said:

``I'd like to believe as professionals that none of us would put our interests above a client's, but it's easy to take a plea bargain, even lean on a client to take a plea bargain, if you've already put in more time than your case is worth.''

In a 1995 case, Chesapeake Attorney Christopher P. Shema asked Norfolk Circuit Court Judge John C. Morrison Jr. to dismiss drug charges against two clients or to delay their trials pending restructuring of the state's fee schedule for court-appointed attorneys.

``The state demands that counsel provide representation at a financial loss,'' he argued. ``This. . . creates a powerful disincentive for zealous representation and. . . creates a conflict of interest which deprives the defendant of effective assistance of counsel, due process and equal protection'' under the law.

Judge Morrison admitted Virginia's pay cap was ``reprehensibly and shamefully low'' but said it was the legislature's responsibility to change the caps.

This month, a Virginia State Crime Commission subcommittee, called the Law Enforcement Subcommittee, issued a report to the governor and the General Assembly recommending that caps for court-appointed counsel should be raised to provide reasonable compensation for court-appointed counsel.''

The seven-member subcommittee has some influential members, including Sen. Mark L. Earley, Republican candidate for state Attorney General; James S. Gilmore III, Republican candidate for governor and until recently state Attorney General; Robert J. Humphreys, Virginia Beach Commonwealth's Attorney; and Del. William S. Moore Jr. (D-Portsmouth).

Earley said the chance of the General Assembly providing a ``modest increase'' in lawyers' fees is fairly good. ``Without that,'' he said, ``we may find ourselves in a position of having the federal courts intervene.'' Inadequate representation, he noted, can lead to innocent people going to jail or guilty people getting off on technicalities.

The General Assembly should increase the fees. Our legal system cannot function without adequate representation for criminal defendants, all of whom are presumed innocent and some of whom are innocent. Virginia's low caps virtually guarantee that representation will be inadequate in many cases.

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