Abolishing flat fee contracts for public defense services – ABA Principle 8

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The most prevalent manner for delivering indigent defense services in the United States is the flat fee contract method, where a private attorney handles an unlimited number of cases for a single flat fee under contract to a county administrator or the judge presiding over the lawyer’s cases. These systems lack accountability and proper supervision. The quality delivered differs significantly from one courtroom to the next. They are not truly “systems” – without any clear structure, they would be better described as “non-systems.”

ABA Principle 8 bans flat fee contractual arrangements because they are rife with financial incentives for lawyers to do as little work on cases as possible. Generally, all trial expenses (experts, investigators, etc.) are paid out of the same flat fee, meaning that a lawyer’s take home pay is negatively impacted the more outside assistance he seeks. A federal court in 2013 called the use of flat fee contracts an “[i]ntentional choice” that purposefully “left the defenders compensated at such a paltry level that even a brief meeting [with clients] at the outset of the representation would likely make the venture unprofitable.”

The prohibition of flat fee contracts in Principle 8 is also in place because lawyers in these types of “non-systems” often take into account what they must do to please a judge or county administrator in order to get the next contract rather than solely advocating on a defendant’s behalf. When lawyers triage the duty they owe each and every client, it is not uncommon for such attorneys to end up juggling several hundred cases at the same time.

At the time of this writing, several states have taken dramatic steps to abolish flat fee contracting. Both Idaho and Michigan have taken legislative approaches to banning flat fee contracts.

Idaho Code 19-859 states that the board of county commissioners shall provide representation through a public defender office or contracting with a defense attorney “provided that the terms of the contract shall not include any pricing structure that charges or pays a single fixed fee for the services and expenses of the attorney.”

Similarly, the Michigan legislature created a statewide public defender commission, called the Michigan Indigent Defense Commission (MIDC). In establishing minimum standards, rules, and procedures, the MIDC is statutorily barred from approving local indigent defense plans that provide “[e]conomic disincentives or incentives that impair defense counsel’s ability to provide effective representation”.

Other states, like South Dakota and Washington, have barred flat fee contracting through judicial fiat. For example, state statutes in South Dakota require local government to pay public lawyers a ”reasonable and just compensation for his services.” South Dakota Unified Judicial System Policy 1-PJ-10, issued by the state supreme court, interpreted this statute to ban all flat fee contracts. In 2000, the Court set public counsel compensation hourly rates at $67 per hour and mandated that “court-appointed attorney fees will increase annually in an amount equal to the cost of living increase that state employees receive each year from the legislature.” In 2014, assigned counsel compensation in South Dakota stands at $84 per hour.

More directly, Washington Court Rule 1.8 states that such arrangements create an “acute financial disincentive for the lawyer” and “involve an inherent conflict between the interests of the client and the personal interests of the lawyer.” These dangers warrant a prohibition on making such contractual agreements nationwide.