On Court Appointments and Recession

This economy sucks for everyone, defense lawyers included. I’m not expecting much public sympathy for our industry. We don’t have enough political clout for a bailout. Would I trade my libertarian idealism for some free Obama “stimulus” money? Don’t ask.

Criminal defense is a somewhat recession proof industry. When the economy retracts, the police continue policing, and criminals keep criminaling (I’m going to copyright that verb). Even as GDP goes down, arrests and prosecution continue on their perpetual upward trend (Onward Prohibition!)

The lawyers I talk to are hurting. Current clients aren’t paying on time, potential clients can’t pay at all. Let me dust of my economist hat and look into this market.

Pro Bono Doesn’t Pay Well
Clients who a year ago could pay for private defense, now can not. Even DWI defendants, who tend to be the most affluent of all state defendants in Texas, are having a hard time paying for services. Lawyers can lower fees to a point. However, we have bills, taxes, insurance, families, mortgages that won’t take less even if our revenue is down.

Finally, there is a floor at which a quality legal defense can be provided. I’ve seen Greensheet ads for $200 misdemeanor defense. I can’t imagine what kind of “defense” that buys.

The criminal defense market is more akin to health care than say airline travel. We a heavily subsidized public component (court appointments), and a healthy private market for counsel.
If consumers lack funds they still have the right to counsel.

I have no statistical data (who can afford open records these days?) on the number of appointments. Anecdotal evidence and my experience in court indicates that more defendants are getting appointed counsel.

I want to ask the judge for a lawyer
Many defendants show up in court wanting a free lawyer. Most courts require filing out a pauper’s oath (an antiquated way to say “promise that you are broke”) to prove indigency.

Indigency is a vague concept with a different meaning in each court. Some judges grant counsel to most who ask, some decline counsel if you have made bail, some make you pay attorney’s fees monthly to the court (usually between $50-$100). Texas judges have wide discretion in this area. The mere existence of this recession may make judges more sympathetic to indigency claims and more apt to appoint counsel.

I take court appointments only in Kaufman County. Despite the recession, I have not seen a large increase in appointed cases. My inner economist tells me that as the economy has soured more lawyers have signed up to take appointments.

Public Defending
This recession may accelerate the growth of public defenders offices in Texas. Kaufman and Dallas County both have public defenders. Ellis, Collin, Denton, Tarrant, Johnson, Hunt, Henderson, Van Zandt and most other Texas counties don’t.

A rise is indigent defendants will increase costs to local government. It’s a tautology, but indigent defendants don’t have any money. They can’t pay the fines, court costs, and/or attorney’s fees for their case. The financial burden will eventually fall on the taxpayer.

Taxpayers hate paying for court appointed counsel, especially during a recession. If local governments are under pressure to “do something” about indigent defense costs it may increase the pressure to socialize indigent defense.

Topic for a future post- Why cost containment for indigent defense is impossible without trampling the rights of defendants. Paying appointed lawyers by the hour vs. flat fees vs. public defender.