Taking Back “Reasonable”

 Posted on October 11, 2011 in Uncategorized

After writing this post, it occurred to me that, using allowable living-expense numbers from the IRS, the courts could create a rule of thumb for deciding whether defendants can afford counsel.

For a person with no dependents in Houston, the IRS Collection Financial Standards are:

1. $428 housing

2. $808 vehicle

3. $60 out-of-pocket health care

4. $534 clothes, hygiene, etc.

So just as someone taking home $1,830 or less a month would have no money to pay a delinquent tax liability, he has, presumptively, no money to spare to pay a lawyer. If you make less than $22,000 a year or $11 an hour after taxes, you should get court-appointed counsel without cavil.

If you take home more than that, you might or might not be indigent and entitled to a free lawyer; further inquiry is called for.

But that further inquiry would have to take into account a reasonable fee for the defendant's case. If a defendant has some resources available, but not enough to pay a reasonable fee, he should have appointed counsel. So what's a reasonable fee for a judge to expect a defendant to pay a criminal-defense lawyer?

Most Harris County judges have not the slightest idea.

One of the things that struck me when I read the last batch of letters sent to defendants in Harris County criminal cases was the common use of the word "reasonable" to describe fees. In the context, "reasonable" is a code word for "low."

People call me looking for a "reasonably priced" lawyer after having received a score of letters offering "reasonable" fees of $50–$100–$120–$250–$300–$475–$500–$1,000 for misdemeanors or felonies; when a caller says "reasonable" she doesn't mean "fair for bringing all of your skill, knowledge, and experience to bear on this problem that could have devastating effects on me and my loved ones" but rather "cheap."

This is one of my gripes with most of the letter lawyers: they foster the false belief that competent representation can be secured from private counsel for a few hundred dollars.

The defense of the accused is a dark art; it's easy for a criminal defendant to get screwed by his lawyer and not even know it. Criminal defense is almost always a game of "better thans." A bad lawyer can sell his client on a mediocre result-deferred adjudication probation-by showing that it is better than a worse result-deferred adjudication is better than a conviction-without comparing it to other possibilities-but it's not better than a dismissal.

So what's a reasonable fee? It's a fee that would fairly compensate a lawyer for taking a case, investigating the facts, researching the law, exploring all possible defenses, and pressing those defenses through trial if appropriate (and, of course, doing a competent job). The federal courts pay appointed lawyers $125 an hour, but most criminal-defense lawyers don't take private cases for hourly fees (for excellent reasons, which we need not rehash here).

A reasonable fee doesn't depend on how many hours this case will take (since that can't be known); nor does it depend on whether the accused is guilty (since he is, at this point, presumed innocent) or whether he will plead guilty quickly (since innocent people shouldn't give up without a fight) or whether the case will go to trial (since innocent people should go to trial). So a reasonable fee, when courts are thinking about whether an accused can afford to pay one, is a flat fee.

Not everyone can hire the best lawyer in town, but everyone should be able to hire counsel who will fight for him, or should be appointed counsel who will do so.

Lawyers: do you want to claim that you're fighting competently for the accused for $500 a case? I'm going to go out on a limb here and call "bullshit." For $500 you're reading the offense report, resetting the case, haggling with the prosecutor, and then standing beside your client when he pleads guilty.

But criminal-defense lawyering is a black art, and just as the client can't tell that he is getting screwed by his lawyer (who should have done X, but didn't), the judges can't tell either. They see people standing before them, "satisfied with their lawyers' representation," "pleading guilty because they are guilty, and for no other reason"; they pay court-appointed lawyers a pittance; and they have no idea in the world that a $500 fee doesn't provide for the possibility that a fight will be necessary.

So what's reasonable? It's easier to say what's not, but a $5,000 fee is-an accused can certainly hire a competent lawyer for $5,000, all-inclusive, on most any misdemeanor case. $2,500? Probably, if he chooses well-maybe someone with more enthusiasm than experience. How about $2,000? It depends on the case-I often spend more than that on investigators to get a good result in a misdemeanor case, but an accused might get adequate representation on a driving-while-license-suspended case for two Gs. I strongly doubt that anyone outside of traffic court makes a habit of doing a thorough job on any criminal case for less than a couple of grand. (Please, prove me wrong.)

When deciding whether to appoint counsel to the $15-an-hour guy with a run-of-the-mill case, a misdemeanor judge should ask himself whether the defendant can pay at least $2,500 for a hired lawyer. If cases in the judge's court take four months, then the defendant will need more than $625 a month to pay that a lawyer, since a competent lawyer who takes payments is going to charge more for the financing.

The defendant who can pay a reasonable fee might still choose to hire a cheap lawyer-there's not a great deal the judge can do about that-but at least the accused won't have been forced by the court to hire a low bidder to sell him down the river.