State commission suspends paying fees for court-appointed lawyers defending poor clients

COLUMBIA -- Most court-appointed lawyers who represent indigent clients in criminal and civil cases won't be getting paid by the state after Wednesday because of budget cuts.

The S.C. Commission on Indigent Defense last week voted to suspend the payment of legal fees in all non-capital criminal and civil cases.

Patton Adams, the agency's executive director, told The State this week that the commission will review the situation "within 90 days" to determine whether payments can resume.

"I and the commission have every intention of making sure the lawyers get paid," he said, though he added, "It may be a slow process."

Court-appointed lawyers represent poor criminal defendants in cases that can't be handled by public defenders and in a type of appeal known as post-conviction relief. They often are appointed in child abuse and neglect cases in family court.

Longtime Columbia attorney Joe McCulloch said this week lawyers statewide are "up in arms" about the commission's decision.

"Lawyers across the state will now have the obligation to represent people for free," he said. "What other profession is required to do that?"

Charleston attorney Brad Waring, former president of the S.C. Bar, the professional organization for the approximately 13,000 lawyers licensed by the state, said he believes that requiring lawyers to work for free is "flat unconstitutional." He blames state lawmakers for the situation.

"This is an unfunded state mandate," he said, noting there are about 70 state laws dealing with court-appointed lawyers in various types of cases. "It's an outright taking."

Waring acknowledged some lawyers have discussed the possibility of refusing court appointments, though he said they could be disciplined by the state Supreme Court, which regulates lawyers.

Supreme Court Chief Justice Jean Toal said this week although she is sympathetic to the lawyers' concerns, the U.S. Supreme Court has ruled that criminal defendants facing jail or prison time must have lawyers even if they can't afford one.

Attorneys who refuse those appointments "risk having those criminal convictions reversed because defendants were not provided with counsel," she said.

Toal said state funding problems have affected the court system as a whole, noting the Judicial Department so far this year has suffered "better than 20 percent in cuts, and the end is not in sight."

"So far, I've not closed any courts, but we're hanging on by our fingernails at this point," Toal said.

Court-appointed lawyers in criminal cases earn $40 an hour for out-of-court work and $60 an hour when in court, Adams said. In family court civil cases, the hourly rate is $50, whether in or out of court.

Lawyer fees are capped at $1,000 to $3,500, depending on the type of case, Adams said. Out-of-pocket expenses are capped at $500 per case; the commission's latest order said those expenses would continue to be reimbursed.

State law allows judges to approve amounts exceeding the caps in "extraordinary circumstances," Adams said.

Adams said his agency was hurt at the beginning of this fiscal year with the loss of $2.5 million for civil case appointments, plus three more budget cuts since then totaling about 25 percent.

On top of that, earmarked money from court fines and fees dropped off dramatically last month, while the number of indigent cases continues to rise, he said.

For the first half of this fiscal year, the agency had been paying court-appointed lawyers with court fines and fees, Adams said. But with the budget cuts, those funds had to be diverted to support the state's public defenders, who represent poor defendants in criminal cases, he said.

The commission in a prepared statement described the public defender system as the agency's "core mission." Public defenders statewide this year have handled about 70,000 cases; in comparison, the agency so far this year has paid court-appointed civil and criminal attorneys in about 7,500 cases, Adams said.

The Legislature appropriated about $8.6 million to the agency this fiscal year. To date, a total of $2.4 million has been paid to court-appointed lawyers in fees and costs, Adams said.

The S.C. Bar last month formally asked the state Supreme Court to prohibit courts from appointing lawyers to cases "without adequate compensation," effective July 1. The Bar's legislative body, known as the House of Delegates, adopted the proposal in May.

The court has not yet taken action on the proposal.

"It's a constant source of irritation," said current Bar president Flo Vinson of Florence about the lack of state funding.

Vinson said although hourly rates of $40 or $50 might sound like a good wage to the average person, it doesn't go far in a law firm when you "have to pay your secretary, the phone bill, the utility bill."

Under the court appointment rule, all active lawyers who are not exempt must sign up to take either criminal or civil cases. Out of 8,824 active lawyers in the state, 3,131, or about one in three, are exempt, Waring said, noting exemptions are granted to older attorneys or those who work for judges or legislative committees.

More than two-thirds of the eligible lawyers sign up for civil case appointments, Waring said. But those cases particularly child abuse and neglect cases can last years, creating a heavy financial burden for the appointed attorney, he said.