Indigent Defense Issues

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Indigent Defense Issues

• Prepared By
• Tye Hunter, IDS Executive Director
• Danielle Carman, IDS Assistant Director

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Introduction

• Thank you for allowing us to speak at the 2005
  Senior Resident segment of the Superior Court
  Judges Conference.
• Please feel free to stop us, and ask questions or
  make comments.

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Introduction

• We have a number of different topics we would
  like to discuss with you, including
• Data Available Through IDS
• Attorney Hourly Fees
• Flat Fees Contracts
• Attorney Billing Issues Raised by the Chief
  District Court Judges
• Capital Case Appointments Fees
• Public Defender Expansion
• Your Questions Comments

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A. Data Available Through IDS

• IDS can provide Judges with data that you might
  find helpful, such as
• Data on average hours claimed by attorneys for
  various types of cases.
• Data on total yearly earnings by attorney for all
  indigent cases originating in your county or
  district during recent prior years.
• Data on recoupment rates in every county in North
  Carolina.

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Available DataAverage Attorney Hours

• In the near future, IDS will be mailing all
  District Court Judges data on the average hours
  claimed by attorneys for different types of
  District Court cases statewide.
• Right now, we only have very general hours data
  for Superior Court cases.

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1. Available Data Average Attorney Hours
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1. Available Data Average Attorney Hours

• Sometime this Fall, we hope to have collected
  enough data to provide all of the Superior Court
  Judges with statewide information on the average
  hours claimed by attorneys by class of felony.

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2. Available Data Total Attorney Earnings

• If you want data on total yearly earnings by
  attorney or firm for all indigent cases
  originating in your county or district for a
  prior year, just send an email to
  Danielle.M.Carman_at_nccourts.org
• We will try to compile that information and
  forward it to you within a few weeks of receiving
  the request.

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2. Available Data Recoupment

• Recoupment rates for attorney fees and the 50
  attorney appointment fee vary widely by county.
• During fiscal year 2003-04, recoupment rates by
  county ranged from a high of 43.1 to a low of
  1.8.
• The statewide rate was 9.2 (or 7.055 million),
  including collections of the 50 appointment fee.

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2. Available Data Recoupment

• If you want to know how your county or district
  is doing with recoupment, just send an email to
  Danielle.M.Carman_at_nccourts.org.

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B. Attorney Hourly Fees

• As you know, IDS set a standard 65 hourly rate
  in April 2002.
• When we last studied compliance with the rate,
  85 of fee awards were being set at 65 per hour
  (excluding approved alternative compensation
  systems).
• Thank you for applying the rate in most cases.

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B. Attorney Hourly Fees

• The remaining 15 of non-complying fees continue
  to be problematic
• IDS budget is insufficient to cover demands on
  the indigent defense fund. IDS will again end
  this fiscal year with more than 11 million of
  debt.
• AOC and IDS were recently audited by the State
  Auditors Office. That office prepared audit
  findings about fees that were set at a rate other
  than 65 per hour, unless IDS had approved an
  exception.
• As a result of the audit, we are now returning
  fee awards that are not set at the 65 rate to
  Judges.

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C. Flat Fees Contracts

• Districts can use alternative systems of
  compensation, such as per case fees, with prior
  approval from the IDS Director. See IDS Rule
  1.9(a)(5).
• Several districts have obtained approval for flat
  fee schedules in certain types of district court
  cases.

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C. Flat Fees Contracts

• Do you all think flat fees might be appropriate
  in any types of superior court cases?
• If you want to propose an alternative system, all
  you need to do is send an email to
  Danielle.M.Carman_at_nccourts.org.

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C. Flat Fees Contracts

• Some of you also might be interested in the
  possibility of contracts for certain types of
  cases.
• IDS has a Contracts Administrator (Susan Brooks)
  on staff. If you are interested in developing a
  contract in your county or district, you should
  contact her at
• Susan.E.Brooks_at_nccourts.org
• 919-560-3380

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D. Attorney Billing Issues Raised by the Chief
District Court Judges

• In October 2004, the Chief District Court Judges
  prepared a Proposed Resolution seeking
  clarification from IDS on a number of attorney
  billing issues.
• We wanted to share some of their requests and
  thoughts with you, and get your feedback.

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1. Billing for Waiting in Court Time

• Chief District Court Judges Request IDS should
  provide instructions to attorneys on how to bill
  for waiting in court time when they are
  simultaneously waiting on other matters or
  working in the courthouse.

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1. Billing for Waiting in Court Time

• IDS Position When an attorney waits in court
  for multiple cases, his or her time should be
  prorated among each of the cases involved.
• E.g. If an attorney waited for 2 hours for 2
  cases to be called, he or she should bill 1 hour
  to each case.
• E.g. If an attorney worked on a case in the
  courthouse while waiting on another case to be
  called, the attorney should bill only for the
  case he or she actually worked on.

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1. Billing for Waiting in Court Time

• In response to the Chief District Court Judges
  request, the IDS Commission revised the IDS Rules
  on May 6, 2005 to state the following
• If an attorney seeks compensation for time spent
  waiting in court for multiple cases to be called
  or working on multiple cases simultaneously, the
  attorneys time shall be prorated among each of
  the cases involved .
• See revised IDS Rules 1.9(a), 2A.4(a), 2B.3(a),
  2C.3(a), 3.3(b)

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2. Itemization of Hours

• Chief District Court Judges Request Provide
  instructions about when it is necessary for
  attorneys to itemize billed hours.
• IDS Policy in Capital Cases Appeals The IDS
  Office requires itemized time sheets in all cases
  where we set the amount of the fee award.

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2. Itemization of Hours

• Non-Capital Cases at the Trial Level The
  practice currently varies by county in all other
  cases where Judges set fees.
• The IDS Commission is discussing this issue, and
  may adopt a standard rule on when itemization is
  required.
• What do you all think an appropriate rule would
  be?
• What would be helpful to you in assessing fee
  petitions?

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3. Fee Applications in CasesRemanded to
District Court

• Chief District Court Judges Request Adopt an
  IDS rule requiring Superior Court Judges to
  handle fee applications in cases that have been
  remanded to District Court, because the defendant
  would be present at the time the fee and judgment
  were ordered.

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3. Fee Applications in CasesRemanded to
District Court

• IDS Position None yet. Before developing rules
  on this subject, we wanted to discuss it with
  you.
• What do you all think about this? Should IDS
  adopt a rule directing attorneys to submit their
  fee applications in these cases to the Superior
  Court Judge who remanded the case?

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E. Capital Case Appointments Fees

• As you know, IDS and the Capital Defender have
  been appointing attorneys in all potentially
  capital cases since July 2001.
• How is that working from your perspective?
• Have you experienced any problems with that
  system?

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E. Capital Case Appointments Fees

• For the past year, IDS has been sending final
  attorney fee applications in potentially capital
  cases to the presiding judge for his or her
  comments before setting a fee.
• Some judges asked us for an opportunity to
  comment before final fees are set, and we find it
  helpful to get feedback from you all. We do not
  mean to suggest that there are any problems with
  those bills.
• If you do not want to see final attorney bills in
  capital cases before the fee is set, please let
  us know.

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F. Public Defender Expansion

• Since IDS was established, the Public Defender
  system in North Carolina has expanded
• A new Forsyth County PD Office started handling
  cases in early 2003.
• A new First District PD Office started handling
  cases in December 2004.
• A new Wake County PD Office will become
  operational on July 1, 2005.
• A possible New Hanover-Pender PD Office is in the
  House Budget Bill.

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F. Public Defender Expansion

• If any of you preside in non-public defender
  counties and have problems with the quality or
  accessibility of private appointed attorneys, let
  us know.
• We are happy to explore the possibility of
  additional PD offices or contracts.

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G. Questions or Comments?

• Do you have any questions or comments for us?
• Please feel free to contact us by phone or email
• 919-560-3380
• Malcolm.R.Hunter_at_nccourts.org
• Danielle.M.Carman_at_nccourts.org