Buying one’s way out of court appointments

Posted Tuesday, October 6th, 2009 by Gregory Forman
Filed under Jurisprudence, Of Interest to Family Law Attorneys, South Carolina Specific

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.

2 thoughts on Buying one’s way out of court appointments

  1. Dawes Cooke says:

    These are good thoughts, Greg. Our firm has, reluctantly, resorted to farming our DSS appointments out to other lawyers. It appears that we are among a small handful of lawyers who have admitted to having an office or practicing in Berkeley County, so we are getting more than our share of appointments there, plus a regular allotment from Charleston County.

    Don’t you think that these appointments are both fulfillment of our oath to ensure that justice is available to all citizens and an unfunded mandate? Why must it be one or the other? For many years I believed that court appointments were a personal charge that should not be delegated to others, even to younger associates in the firm. I still feel that way about GAL appointments. But it eventually dawned on me that my unwitting, involuntary clients were ill served by a lawyer who has little expertise or interest in DSS cases and whose family court practice is limited to appointed DSS cases. One need not be rich to realize that the client is better served by a lawyer who wants to represent her, who knows how to represent her, and who is being paid to represent her, than by an inexperienced lawyer who has been conscripted into service. Aren’t we still doing our part to make justice available to all citizens if we discharge our appointment obligations by hiring willing, competent counsel for those who can’t otherwise afford it?

  2. There are two justifications that the Supremes rely on to force attorneys in South Carolina to take on court appointed cases under Rule 608. The first reliance, in no particular order, is that . . . “the practice of law is a profession – not a business or skilled trade. While the elements of gain and service are present on both, the difference between a business and a profession is essentially that while the chief end of a trade or business is personal gain, the chief end of a profession is public service.” Ex Parte Dibble, 279 SC 592 (1983). “For many years courts have viewed uncompensated service as a duty attendant to the public office which the lawyer voluntarily seeks, For this reason, the lawyer is not a private citizen being deprived of property without just compensation or due process.” Id at 594. With all due respect, bullshit. Twenty-eight years after Dibble, the Supremes established “that the Takings Clause of the Fifth Amendment to the United States Constitution is implicated when an attorney is appointed by the court to represent and indigent litigant.” Ex Parte Brown, 393 SC 214 (2011). This would seem to overturn the Court’s ruling in Dibble that an attorney is not a private citizen being deprived of property without just compensation or due process. Court appointments, whether compensated at a minuscule fraction of “the fee customarily charged in the locality for similar legal services” or sold to other attorneys in the appointed attorney’s stead, are clearly a taking and violate the appointed attorney’s Fifth Amendment rights as afforded by The United States Constitution. The second reliance is that Attorneys in South Carolina took an oath to assist the defenseless or oppressed by ensuring that justice is available to all citizens and will not delay any person’s cause for profit or malice.” Rule 402(k)(3) requires an attorney “to pay a fee of $50 and take and subscribe the . . . oath or affirmation” in order to be admitted to the South Carolina Bar, a requirement necessary to practice law in this state. Is that not then an adhesion contract more than an oath if attorneys are forced to take the oath as a condition of admission to the bar? Contracts of Adhesion are unenforceable. Furthermore, forcing attorneys to enter this adhesion contact is a violation of the Fourteenth Amendment to The United States Constitution. Section 1 states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Isn’t it interesting that attorneys, whose duty is to uphold The United States Constitution, aren’t afforded the same protections from their own state?

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