Under South Carolina Appellate Court Rule 608, most South Carolina attorneys are required to be on either the criminal or civil court appointment list, in which they are required to represent indigents. Most attorneys, myself included, are on the civil appointment list, which means we are appointed to represent defendants in post-conviction relief matters, Department of Social Services abuse and neglect cases, and termination of parental rights cases. Attorneys can be appointed to handle up to ten of these cases per year. While the South Carolina Commission on Indigent Defense has been reimbursing attorneys at $40.00 to $50.00 per hour for their time in these cases, this is substantially below most attorneys’ hourly rates: for some attorneys this rate is not enough to cover their overhead.
Thus, some South Carolina attorneys have taken to paying other attorneys a flat rate to handle their court appointments and some attorney are earning a substantial portion of their income handling these appointments on behalf of other attorneys. Whether the Supreme Court should allow this to occur is an issue that appears never to have been considered; I consider the matter extremely problematic.
There are two ways of looking at such court appointments. One way is to see them as a partial fulfillment of one part of the oath all lawyers take upon admission to the South Carolina bar: “I will assist the defenseless or oppressed by ensuring that justice is available to all citizens …” If these court appointments are seen as fulfillment of this part of the oath, then an attorney handling court appointments does so out of a sense of professional duty which the practice of law requires. However if this is the justification for requiring attorneys to handle court appointments, then allowing attorneys to purchase their way out of these court appointments vitiates that justification and the practice should be prohibited.
Another way to see these court appointments is part of an unfunded mandate promulgated by the South Carolina legislature. If this is the reason, then buying and selling these appointments is perfectly legitimate. What is illegitimate is the South Carolina public, acting through its legislature, requiring one segment of the population (attorneys) to provide free services, especially when that segment of the population has no choice for whom they will provide these services. Our state residents have no more right to ask lawyers to provide their services to indigents than it does to ask our barbers to provide these indigents free haircuts.
During the Civil War the North allowed conscripts to purchase a substitute to fight on their behalf. This allowed well-off men to avoid military duty while creating a military filled with recent immigrants and the less well-to-do. This ability to purchase one’s way out of what was justified as a public obligation (the obligation to fight to defend the Union) was tremendously unpopular and considered one of the causes of the draft riots in New York City.
Either defense of indigents is a professional obligation–and attorneys should not be able to purchase their way of out this obligation–or it is not a public obligation–and the taxpayers should pay for the defense of these indigents. To paraphrase the epitaph used to describe substitute conscription in the Civil War, the current system is a rich lawyers war and a poor lawyers fight.