How does that work? Well, in Washington at least, not very well. Grant County Washington apparently had a contract with Tom Earl to provide attorney representation for the poor in criminal cases... and he could keep what he didn't spend on hiring attorneys to do the legal work. The Seattle Times reports on "An Unequal Defense", highlighting issues that are important to our system of justice. According to the Seattle Times article, Tom Earl's license to practice is now suspended.
As we look at the legal issues presented, we are brought to focus on how this and similar arrangements effect the quality of legal services provided to the poor. We see dramatic under-funding of legal services, even here in Delaware. This under-funding has been dealt with in a number of different ways, from a budgetary standpoint. But how does this effect the client? This is the critical question that must also be answered.
Here in Delaware, thank goodness we don't have a contract like Grant County Washington. We have a set salary for the Public Defender for the State of Delaware. But to attract sufficient attorneys, we have had to allow many of them to maintain private practices on the side. Or is it that they do PD work on the side?
Not only do we have Public Defenders, but there are a number of different contractual arrangements with private attorneys to represent poor people, at the State's expense. Some of these contracts pay as little as $25 per hour, or less. By my calculations, a private attorney would need to gross $80 per hour just to break even ... to keep his or her office open and stay off of welfare. So it is costing these attorneys $55 per hour to participate in the defense of these poor clients. Yes, these poor clients.
We see these types of contracts with private attorneys in Delaware: in the defense of clients charged in criminal cases where the PD's office has a conflict of interest (for instance, where more than one co-defendant in a case need PD services, and where one might claim that the other did the deed); in the representation of persons being involuntarily committed in a mental health facility; in child support contempt cases where there is a likelihood of jail time; and in other cases and circumstances as the administration of justice requires. And so there are dozens of Delaware lawyers working under these conditions as we speak [sic].
Nation wide, we can see these rates average at or below the break even point for attorneys, even in capital cases! [PDF]
While I, as a Delaware lawyer, have voluntarily participated in thousands of cases under arrangements such as this, I viewed it as an expensive hobby. Or, as a contribution to the system of justice. My pro bono work. Well that is all well and good until it comes time to live in the real world and support a family. When the hobby becomes too expensive either the attorney quits, goes bankrupt, or provides inadequate time to the legal matters of the clients. The responsible and ethical thing to do clearly, is to quit.
The real world budgetary pressures are thus handed downhill from the government's under-funding, to the attorneys, to the clients.
In the Washington case, the public defender was "handling" almost 3 times as many cases as the recommended maximum... plus his private practice. And we can easily see then the concern about what rolled downhill to his public defender clients.