Indigent Defense Issues

1. Indigent Defense Issues Prepared By: Tye Hunter, IDS Executive Director Danielle Carman, IDS Assistant Director

2. 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.

3. 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

4. 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.

5. Available Data:Average 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.

6. 1. Available Data: Average Attorney Hours

7. 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.

8. 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@nccourts.org • We will try to compile that information and forward it to you within a few weeks of receiving the request.

9. 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.

10. 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@nccourts.org.

11. 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.

12. 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 Auditor’s 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.

13. 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.

14. 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@nccourts.org.

15. 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@nccourts.org • 919-560-3380

16. 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.

17. 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.

18. 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.

19. 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 attorney’s 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)

20. 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.

21. 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?

22. 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.

23. 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?

24. 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?

25. 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.

26. 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.

27. 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.

28. 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@nccourts.org • Danielle.M.Carman@nccourts.org