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Fee waiver program will run out of money in May   

Budget realities are hitting hard on Virginia lawyers who defend accused criminals. The Supreme Court of Virginia warns money will run out in May to pay supplemental fees for court-appointed lawyers. Moreover, a budget-cutting proposal in the General Assembly would eliminate the supplemental fees altogether, beginning this month.

Under the fee-cap-waiver program, adopted in 2008 as an answer to Virginia’s low levels of court-appointed pay, a lawyer can seek a waiver of the fee limit and ask for additional funds for difficult or time-consuming cases.

But a Feb. 17 memo to Virginia trial court judges warns the $4.2 million in the current budget will run out “by early to mid-May 2010,” based on the current rate of payment of fee waiver funds.

As the existing fund dries up, appropriation for future fee supplements has become a football in Capitol Hill budget planning. Gov. Bob McDonnell has recommended a 15 percent reduction for the next budget biennium – a $1.3-million savings.

The House of Delegates recommends no change in former Gov. Kaine’s $8.4-million appropriation.

The Senate, however, proposes to cut it all, starting immediately. The Senate plan would not only eliminate all funding for fee supplements for the coming biennium, it would cut $600,000 from the current budget. Under the Senate plan, the waiver money would run out in “early- to mid-March,” according to a spokesperson for the Supreme Court.

Even if budget planners keep supplemental fees untouched, it appears certain there will be a gap in funding after funds run out in May. “At that time, we will no longer be able [to] process the approved waiver payments for the remainder of the fiscal year,” reported Karl R. Hade, the court’s executive secretary. Because the fiscal year ends June 30, court-appointed attorneys face a month-and-a-half with no access to supplemental fees for difficult cases.

As of Feb. 16, the court had processed payments for just over $3 million for approved waivers, Hade said.

The program to provide supplemental pay for court-appointed lawyers has had a rocky start. For years, Virginia court-appointed criminal defense attorneys had been among the lowest paid in the nation. To address the shortcomings of defense lawyer pay, the system of supplemental fees was established in 2008.

To the chagrin of advocates who fought to get the extra pay, lawyers were slow to get on board.

Many resisted the paperwork and timekeeping requirements. Some judges set a high bar for approving supplemental fees.

An education program, combined with simplified application procedures, led to increasing use of the fee waiver program in the past year and a half. Now, lawyers on the court appointed list are wondering if they’ll again be limited to the basic schedule of fees based on criminal charges.

“After all the years of time and effort, it was a hell of a shock to see the Senate budget proposal,” said David J. Johnson, executive director of the Virginia Indigent Defense Commission.

“We certainly are going to be talking with the House conferees and asking them to stand firm,” Johnson said.

Defense lawyers say the coming gap in funding for supplemental fees will hit hard. “Unfortunately, with a lot of lawyers, it’s going to have a large impact in their practice. Especially for new ones who do a lot of court-appointed work to make ends meet,” said P. Scott DeBruin of Lynchburg. The same applies to experienced lawyers who now are putting in for court-appointed work to make up for the downturn in other areas, DeBruin adds.

“Court-appointed lawyers do very hard work for very little money. I think everyone understands we all have to give,” said DeBruin, who said about 30 percent of his practice is court-appointed cases. “Unfortunately, this is a sacrifice we may have to make,” said DeBruin about the impending shortfall. “We’re part of the community.”

Corinne Magee, president of the Virginia Association of Criminal Defense Lawyers, said court-appointed lawyers already are underpaid. “We already are right smack down at the bottom,” she said.

“We are somewhat philosophical about it, but we’re really angry because it’s not an across the board thing,” said Magee, complaining about a bill that would provide extra funds for commonwealth’s attorneys through fee increases. Prosecutors point out, however, that their offices already are facing across-the-board cuts in the budget proposals.

Other defense lawyers register complaints about the operation of the fee-cap-waiver system. David Bernhard of Falls Church, who moderates a national listserv for criminal defense lawyers, said judges have arbitrarily denied some fee waiver requests for lawyers who spend significant time on criminal cases, including cases with lengthy jury trials.

“The effect has been anecdotally that some of the better court-appointed attorneys have been demoralized and decline cases because they simply cannot afford to work for little pay and still sustain their practice,” Bernhard said. “Our criminal justice system is only as good as its weakest link and the lack of adequate pay necessarily weakens the adversarial system upon which we rely to properly ferret out the facts and do justice.”

“I wish they would increase the fees and do away with the waivers,” said DeBruin.

Under the current fee schedule, a lawyer’s statutory fee for handling a misdemeanor defense is $120. If a waiver is approved, the lawyer could earn an extra $120.

The basic fee is $445 for crimes punishable by up to 20 years on prison, with a possible supplement of up to $155. For more serious crimes, the basic fee is $1,235 with a possible supplement of up to $850.

Among the factors considered for fee cap waivers are additional time and effort required or novel and difficult issues presented by the case.

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