Eroding Gideon to Save a Buck

Tennessee’s Administrative Office of the Courts–the bureaucratic wing of the state’s Supreme Court–is always looking for a way to save the taxpayers a buck when it comes to indigent defense representation.  They’ve long trumpeted their disdain for those who represent men and women unable to afford an attorney; after all this is a group formerly spearheaded by someone who proudly told a group of indigent defense counsel on the anniversary of Gideon v. Wainwright the following:

If it were up to me, all of you would be making twenty dollars per hour as a flat rate.  And you’d be grateful for it.

Ever the scions of fiscal responsibility, the AOC continually adopts a business model of “if it’s not broken but doesn’t pay the attorneys enough, who cares?  Let’s fix it.”  Back in 2011, the Administrative Office of the Courts proposed a fixed fee contract situation for attorneys taking indigent defense cases at all levels.  This would require attorneys who wanted to take court appointments to submit a bid to the AOC for how much they’d be willing to take as compensation for the privilege of having as many cases as the courts could throw at you.  If case needed appointed counsel, the court would first be required to select an attorney from the contract list.  If no one on the contract list could take the case, the court would then have the ability to give the case to someone else.  Being good bureaucrats, the AOC would naturally take those attorneys who submitted the lowest bids and give them the “privilege” of taking all the indigent defense work.

Critics of the 2011 proposed system didn’t just point out the numerous faults with this program and respectfully disagree–they launched an out and out backlash against the Administrative Office of the Courts, knowing full well that each attorney who signed their name to a comment would be subject to having their billables continually “audited” for daring to speak out against the fatcats in Nashville. They pointed out this system robbed the judge of his or her ability to select the best attorney for the job. They pointed out the new system’s shocking ease of replacing competent counsel with underpaid and overworked attorneys funneling defendants through a plea mill. People began wondering if this system of over working attorneys would flood the appeals courts with post conviction relief cases. The press stink even hit the national level, as outlets like the Wall Street Journal heralded the AOC’s move as a terrible blow to Clarence Earl Gideon’s work for those who could truly not afford an attorney.

The campaign eventually worked, and the Tennessee Supreme Court declined to adopt the rule change–at that time. Sensing another way to be fiscally responsible, the AOC decided to adopt a “pilot program” in Davidson County, Tennessee’s Juvenile Court with three magistrates handling child support contempt cases to see if contracts and bids would eventually work at a state level for all cases. This new system went into effect in July of 2012 in Davidson County, and had such great success it saved the courts thirty three percent of their budget assigned to indigent defense.

Thirty three percent! What a deal! If it works here, it’ll work everywhere!

The Tennessee Supreme Court agreed with the above statement and decided to extend the pilot program until December 31, 2014 per an order signed July 9 of this year, because they didn’t want to disturb the working arrangement in these three courtrooms. In this July 9 order the Court also said

The Court will consider at a later date whether to adopt the contract program on a permanent basis…[and also] will consider whether to expand [it] to other types of cases covered by Rule 13.

That later date came Wednesday, November 19, 2014. Impressed with the AOC’s consistent “savings” to the State’s indigent defense fund, the Tennessee Supreme Court signed an Order amending Rule 13-the Rule giving indigent defendants appointed counsel-to place juvenile dependency and neglect (D&N), child support actions, and commitment (judicial hospitalization) cases under the umbrella of this twisted “justice to the lowest bidder” model. This would be mildly annoying if it weren’t for the fact almost as many appointments come from D&N cases as criminal matters for adults. Factor that little tidbit in, as mentioned in my last post, and it becomes an egregious violation of a parent’s right to counsel during one of the most stressful experiences one can encounter.

Moreover, this new change authored under the auspices of saving the state a buck directly affects the judiciary. It is the job of the trial court to select an attorney for appointment who can provide competent counsel; they’re essentially required to select the best counsel available for the job. Drug exposed child cases are different from those actually alleging physical abuse to a child. Sometimes there’s a possibility the case may transform into a termination of parental rights action. A judge needs the ability to evaluate where a case may go and act accordingly. The Tennessee Supreme Court just effectively stripped local trial judges of that important power.

If you think this will end with the juvenile and child support courts, you place too much faith in humanity. During the fiftieth anniversary of Gideon the AOC decided to place a limit on the number of hours an attorney may work on cases involving indigent clients. After two thousand hours of work billed to the State of Tennessee, all work the attorney does is pro bono. This cap includes ALL cases, including representation of criminal clients. This new change was largely met with jaded reactions from the bar. Some joked the hour cap would force lawyers to place a timer on counsel table and cease representation once we hit that limit. Others said “well, if you’re billing two thousand hours of indigent representation to the State you’re obviously over billing.” Still more simply stopped taking indigent cases. The AOC noticed that apathy and decided to move forward with their plans on placing every indigent case in a fixed fee or contract scheme. They’re just doing it one situation at a time.

Our newly minted system places the burden of representation in child support and juvenile cases on overworked attorneys with demanding clientele. It encourages attorneys to move juvenile, child support, and judicial hospitalization cases through a process similar to a “plea mill” as we currently experience in criminal cases just to make ends meet and avoid decreasing the quality of representation. Experienced and journeyman lawyers will eventually move on and stop taking appointments, leaving these demanding cases to those just admitted to the Bar and struggling to repay student loans.

Tenneesee keeps eroding Clarence Earl Gideon’s dream every year in the name of saving a few pennies. If that doesn’t make you angry now, I hope it does when the State comes to take that which you hold most dear.

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