Court-appointed lawyers deserve fair pay

W. Edward Riley IV Richmond
Published: July 23, 2008

For many years Virginia provided the lowest compensation in the country for court-appointed lawyers. Court-appointed fees were capped at $120 for misdemeanors and all juvenile cases, $445 for felonies with a punishment of up to 20 years and $1,235 for felonies with a punishment of 20 to life. No matter how many hours court-appointed lawyers spent representing indigent clients, they couldn’t receive more than the statutory cap.

Finally, in 2007, an historic breakthrough occurred when the General Assembly lifted the fee caps and gave judges the power to authorize additional compensation. This year, the General Assembly went a step further by allowing for additional waivers for felony cases in juvenile court.

It took considerable time for lawyers and court clerks to learn the new system. Initially, few requests for additional compensation were submitted, but as the year progressed more and more court-appointed lawyers began filing for waivers. By the end of 2007 only a small amount of the $8.2 million allocated for waivers had been used.

For this reason, and because the commonwealth was facing a budget shortfall, the General Assembly reduced the waiver funds for fiscal year 2007-08 to $3.2 million.

The Assembly anticipated that the number of fee waiver requests would increase each year as people became more familiar with the system. The General Assembly’s thinking proved to be accurate. As of June 30, nearly $2 million (out of $3.2 million for the 2007-08 fiscal year) had been paid in fee waivers. The number of waiver requests continues to increase every month and the process of filing a waiver has become more streamlined. This has created no additional burden for the Virginia Supreme Court as it handles fee waivers as part of the regular court-appointed compensation system.

Requiring court-appointed lawyers to make financial sacrifices to support the system should end. Because of the fee waiver system, lawyers can now be paid for every hour it takes to do a proper job representing their indigent clients.

Ultimately, these improvements ensure that the commonwealth provides the constitutional right to counsel guaranteed under the Sixth Amendment to all indigent defendants. This is the least that should be done so that there is a balance in the adversarial system that ensures innocent people are not wrongly convicted.

W. Edward Riley IV is president of the Virginia Fair Trial Project.