When The Lawyer Works Too Hard and is Penalized

The New York Times ran an article this week about a lawyer in Galveston, Texas, who was penalized by a judge for working took hard on his cases. The matter is the subject of a Federal lawsuit. The lawyer was appointed by the judge to represent a man charged with breaking into a car. The defendant faced a year in jail. After the lawyer did a rigorous investigation, the case was reduced to a misdemeanor. When the lawyer submitted his bill for the work on his case, the judge cut his bill more than in half. The lawyer appealed the cut in his bill, and the amount was sustained. Over time, however, the lawyers stopped getting court appointments. And he was removed from some of his cases.

The practice of cutting the bills of court-appointed lawyers is so common that lawyers pretty much take it  for granted. The Times article underscores some of the systemic issues in the court appointment system. In a 2011 study, the RAND Corporation found that indigent clients fared better when they were represented by a lawyer from an independent public defender organization rather than a court-appointed lawyer. The conviction rate was 19% lower. The chances of a life sentence were reduced by 62%. And the expected length of sentence was 24% shorter.  According to the study, “judges have incentives to appoint counsel who file fewer pretrial motions, ask fewer question during voir dire, raise fewer objections, and present fewer witnesses.”

It’s a fairly open secret that bills are often cut by judges. It can be difficult to secure funding for experts and investigators on cases on appointed cases. And yet, as private counsel, the biases are hard to see. Generally, I find that judges enjoy a rigorous motions practice in my cases. But I’m not before any particularl judge every day. Perhaps if I were, all of the things I do would be perceived as a docket-clogging nuisance.

The headline of the article is “His Clients Weren’t Complaining But the Judge Said This Lawyer Worked Too Hard.” And why would a client complain about your hard work? When you are retained, you have an incentive to work hard. The person you represent and the person who is paying you is the same person. And your interests are aligned with one another. In the court appointed system, the person paying you is not the person you are helping. And sometimes the incentives can pull the lawyer in alternate directions. This scenario has played itself out with the situation in Galveston.

I can recall my first years of practice when my local county had a court appointed system. I would come to Magistrate Court when the  judge appointed lawyers. I’d get the form, interview the clients, interview the arresting officer, then do a  bond hearing. And I would walk out with three or four new clients. I took for granted that the judge would ultiamtely cut my bill. But I didn’t much care. I had no name or presence. And I knew that doing a great job for these clients was the best way to become known. Eventually, I quit doing appointed cases. But those appointed cases were my start. So, I did not particularly care if my bill was cut. I saw the experience as an extension of law school. If it were medicine, that experience was my residency.

However, most of the lawyers who were there hanging out with me on those days were not young lawyers trying to prove themselves. Many of them were lawyers in their 60s who were there to try to make ends meet. I’m pretty sure that the clients who had those lawyers had a bumpy ride. And, for that reason, it is good that we moved to a state-wide indigent defense system. The Time article doesn’t reveal anything new. It reveals a perennial problem.