Judge Rules Florida Fee Statute Unconstitional As Applied

The Florida judiciary often gets a bad rap. And sometimes it seems like it deserves it. But we have a pretty good, sometimes very good, state Supreme Court, and there's actually a lot of talent on the state bench. (I encountered this personally when I served on a state judicial committee staffed primarily by judges from all over the state.)

All this by way of preface to an opinion by Chief Judge Lee Haworth of Manatee County, which is a must-read for anyone interested in issues of indigent defense, the 6th Amendment, the Florida Constitution, the cruelty of Republican-dominated legislatures, or even basic due process.

The background goes like this: after selling the public on tax cuts, some as recently as the election a couple of months ago, and promising that there would be no cuts in anything (money grows on trees, right?), the Florida legislature is now in full panic mode. The schools are getting chopped. And so is everything else. About the first thing to go, even before the latest round of tax cuts I believe, was payments to lawyers for criminal defense work.

The Florida legislature decided that the most a lawyer should be paid for a non-capital case was $2500. No matter how many counts in the indictment. No matter how long the trial. They did make an exception for very extraordinary circumstances, where there were more than 20 prosecution witnesses, and the case took more than 75 hours: then the judge could double the fee. Only upon a finding that this payment would be “confiscatory” could the judge go above $5000, and even then for non-capital cases the maximum hourly fee available was $75/hour, well below the norm for the criminal bar. Plus, the fee determination would only be made at the end of trial — so the lawyer works only on spec without any idea what s/he'll be paid, has to front all the expenses (none of which are refundable by the state), and has to wait to see how long the state bureaucracy will take to actually pay out — sometimes months.

The purpose of all this was to screw trial lawyers, and even more to screw defendants by creating an overwhelming financial incentive to either cop a pleas or do a lousy job of representation.

Pursuant to the bill the Florida so-called “Justice Administrative Commission” prepared a contract that private lawyers could sign to be compensated for court-appointed work. The terms of that offer are amazingly bad, and not surprisingly very few lawyers have been willing to agree to them. Indeed, a very large fraction of the lawyers who formerly listed themselves as willing to accept court appointments for indigent defendants removed themselves from the list.

As a result, when relatively tiny Manatee County faced a giant multi-party conspiracy case, the number of defendants exceeded the supply competent and available lawyers. And the pool of competent but unwilling local lawyers consisted of sole practitioners who couldn't drop everything else to work for nothing and still make their mortgage. While it is accepted that courts can order an unwilling lawyer to represent the indigent, it is also settled law that you can't require a lawyer to bankrupt himself to do so. Yet, to pay what it would take to represent the unrepresented parties would bust the caps in the Florida statute. (And also would require progress payments were the case to drag on.)

In a careful opinion Judge Haworth bit the bullet and declared the Florida fee law as unconstitutional as applied to the facts before him, and entered an order allowing a quite modest but not confiscatory fee of $110 per hour for the involuntarily appointed lawyer in this — for Manatee County — extraordinary case. The authority for this ruling is given as the Florida State Constitution, Article V, Section 1 (creating courts, and inherently empowering them) and Article II, Section 3 (separation of powers).

Rather than rely only the inherent power of the courts, I would have liked to see a citation to the Florida Bill of Rights, such as Article I, Section 2 (“All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty…”), Section 9 (“No person shall be deprived of life, liberty or property without due process of law…”), Section 16(a) (“In all criminal prosecutions the accused shall, … shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both…”), Section 21 (“Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”), but you can't have everything. And Chief Judge Haworth can hardly be blamed for relying on the court's inherent powers, since he was only following the lead set by the Florida Supreme Court in Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986).

I hope this starts a trend.

(Case spotted via Rumpole)

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14 Responses to Judge Rules Florida Fee Statute Unconstitional As Applied

  1. toxic tort says:

    $2500 max per defense huh? That’s a bit silly. You’re right, this one should have been deemed unconstitutional. I’m glad to hear that your state supreme court allowed justice to prevail on this one. Indigent defendants have it bad enough already without a legal fee cap that barely covers fees for the defense of a minor charge, much less the more serious ones. +1 Florida state supreme court


  2. michael says:

    Note that Monday’s decision was not by the Supreme Court, but relies on one of its earlier decisions.

  3. cleareyes says:

    Perhaps more lawyers would be willing to defend the indigent if they were not saddled with $100,000 in debt from UM Law. I suggest you and your fellow professors volunteer to cut your salaries, or that you personally create a scholarship fund for young lawyers.

    Ohhhh…now I get it. You want Joe Taxpayer to pay $110/hr (which is more than 10x the minimum wage) for a private lawyer when assistant state attorneys and pd’s make about $20/hr. All so you can feel warm and fuzzy about the money grubbing sheisters you unleash on Floridians.

    Whatever ideas they had about the practice of law coming in, UM and Nova grads leave with only one thought, “ize gotz to getz pizaid”. It is sickening that you blame middle class Floridians who need a break from sky high property taxes created by a real estate bubble for the problem that lawyers don’t want to do a few indigent cases here and there. The Florida Bar bears the brunt of the blame.

    Also, your characterization of lawyers qualified to do capital cases as starving artists who can barely make a mortgage is also a complete joke. Many private practitioners in criminal are making money by the barrel full, much of it by pleading out the court assigned cases because, guess what…wait for it…here it comes…MOST OF THEM ARE GUILTY AS CHARGED and a trial would only make matters much much worse for them when they loose. Go to a calendar call and see how many $1000 suits and rolexes some of the guys sport. Ask one of your students how to get to the court house, Herr Professor.

    Of course, I know UM counts on these guys to make alumni donations, so of course you would shill for them.

  4. Michael says:

    Actually, “cleareyes,” I wrote only about non-capital cases. (The situation for capital cases is, I suspect, worse, but I don’t know that for sure.) And I wrote about the representation of indigent defendants — the only ones entitled to court-appointed lawyer — not about the ones paying the expensive end of the criminal bar. Given these errors, I should probably not dignify the rest of your rant with an answer, but it (just) beats grading.

    My position, like that of the entire Judiciary not to mention all civilized people, is that indigent criminal dependents are entitled to a competent defense at my (and your) expense. How we do that is just a question of implementation. We could increase the number of public defenders, whom some studies show tend to do better than private lawyers (others disagree), we could do lots of things to achieve that. What the legislature can’t do is set up a system where minimum justice cannot happen. And that is what the Florida legislature has tried to do.

    I’d extend that human right to guilty people as well as innocent ones. But in any case, I find your assumption that defendants are always guilty to be both disgusting and somewhat silly. It’s disgusting because without the presumption of innocence, an arrested person really doesn’t have a chance unless they are incredibly wealthy. And it’s silly because history, and contemporary experience too, teaches that the legal system makes quite a lot of mistakes. Consider for example the error rates recently uncovered by the Innocence Project in rape/murder cases in Dallas where, by bureaucratic accident, DNA evidence was preserved — a sample of a set of serious cases where we’d expect the cops and prosecutors to be extra careful for fear of leaving a rapist or murder on the loose.

    What do you suppose the error rate in the first 40 cases reviewed has been?

    out of the 40 cases that have been reviewed so far, there have been 17 exonerations. That’s an error rate of more than 40 percent.

    Sloppy police work. Prosecutors sitting on (or unaware of) exculpatory evidence. Sloppy defense counsel. Testilying police. Many things probably contribute to these errors. But they are real.

  5. Thomas says:

    Well, no, the FL legislature hasn’t tried to set up a system where minimum justice cannot happen. They’ve set up a system where individual lawyers bear a disproportionately large share of the burdens of minimum justice. But disproportionate burdens are the heart of the modern regulatory and welfare state, so I’m not sure what the objection is. (Are you concerned that some property owners are disproportionately burdened by the Endangered Species Act, for example? I’d be surprised.) Certainly a lawyer can work for $75 without going bankrupt. And if she can’t, well, I suppose we’ve found the way around our professional obligations—insist on living a lavish lifestyle. That’s now supposed to be how it works.

  6. Michael says:

    By legislating a fee cap of $2500 (or $5000) for a case that could take many hundreds of hours, refusing to pay for any of the costs, and only allowing the lawyer to make an application for more money when the case is over (ie work basically on spec), the Florida government has created a system that puts unreasonable burdens on lawyers. The state (and, I’d argue) federal constitutions don’t allow the legislature to impose such a disproportionate burden on individual lawyers.

    At first blush, $75/hour indeed does sound like serious money. ($156,000/year if you can do eight hours/day 260 days/year.) But if you read the opinion you’ll see how the judge calculated that the $75/hr cap wasn’t reasonable. It’s pretty persuasive, when you take account of the overhead and other expenses of a sole practitioner. Maybe you should read the opinion before critiquing it?

    And I repeat what I said: the purpose of this legislation was to deny justice by setting fees unreasonably low for indigent defense work.

  7. Thomas says:

    Your argument is that the Florida state and the federal constitution protect the right of lawyers from disproportionate burdens, but not, say, the rights of propertyowners burdened by the ESA? Are lawyers now a suspect class? I’d expect the conclusions the other way. After all, the burden of being a member of the bar is voluntarily assumed.

    The overhead calculations seem a tad imprecise. If you can’t accept new cases (as is conjectured), then why would advertising continue? How much of the taxes referred to are based on an assumed income which is foregone? You can’t say I’m losing income because this case takes all my time and yet my average advertising expenses and my taxes based on my normal income continue, but the analysis suggests that. The judge should have asked the lawyer for financial statements and really analyzed them, rather than relying on self-serving testimony.

    How much did this lawyer make last year? How much does he propose to make on this case? By my calculations, using the lawyer’s estimate for the time for this case and the time remaining for the rest of his practice, he’d still make over $90,000 for the year. Is that kind of income “unreasonable”? Will it bankrupt him? Only if he has a lavish lifestyle, which, again, isn’t supposed to be a ticket out of a lawyer’s professional obligations.

  8. Michael says:

    *Sigh*. What a farrago….

    It’s been a while since I looked at ‘regulatory takings’ cases, and I may be recalling them wrong, but what I recall is that the last time I looked the rule was that if the land-use (or, I presume, ESA) regulation made the land more or less unfit for any reasonable economic use, and but for the regulation there was some economically valuable use other than scenery, that was a compensible taking, and then you got the difference.

    But this makes the two cases sound more parallel than they are. Lawyers get a license from the state which comes with certain obligations. The State of Florida’s Constitution ensures that the state doesn’t try to take unfair advantage of those obligations. (There are undoubtedly federal rights that could be invoked here, but there’s no need to go there given the scope of the state right.)

    Property is a protected right under the federal (and state) constitution. You don’t need a license to hold property. But the property right is and always has been subject to the police power — a very broad concept with very deep historical roots allowing quite intrusive regulation. I’ve seen arguments that the regulatory takings doctrine ignores this history, but I have not done the sort of research which allows me to form a view as to who is right. If anyone is still reading here, and is willing to post a summary of the current state of regulatory takings jurisprudence, that might be helpful.

    Meanwhile, I don’t believe that suspect classes have anything to do with either branch of the law, but welcome citations to the contrary.

    And I think in a motion of this sort we can trust an officer of the court to tell the truth about his economic circumstances unless there’s some reason to doubt him. Indeed the Judge seemed to think the lawyer had understated his costs, if you look at pp 12-13 of the opinion.

    He has one full-time employee, a legal assistant. His office overhead is about $11,171 per month [T-85]. He arrives at the overhead figure by adding his average monthly expenditures for advertising, his health insurance, his employee’s salary and health insurance, taxes, business phone, office rent, and office supplies. This calculation is very conservative as it makes no mention of elements such as continuing legal education expenses, bar and professional organization dues, malpractice insurance, or the cost to acquire and maintain office furniture, machines and computers. [T-87-88] It excludes salary or any personal compensation.

    In other words, overhead is running at c. $134,000/yr, which puts a new cast on that hypothetical $156,000/year you would get if you could somehow bill almost 2100 hours per year (which likely is a rather high number): at $75/hour even working that hard (for you commonly have 20% unbillable hours next to your billables) you will net a princely $32,000 (before taxes) — below the national average wage in 2006, which was $38,651.41. I don’t think I’d call that the basis for a “lavish” lifestyle in Florida.

  9. Thomas says:

    You seem very confident that there’s some constitutional right for certain individuals to not bear a disproportionate burden of a pubic policy. I questioned whether you that right was generalized or if it applied only to the particular group you belong to and help reproduce. The latter, you clarify. Obviously an important principle is at work.

    The “suspect class” bit was a joke, but that’s always hard in print, and especially when your assertions about a lawyer’s constitutional right not be disproportionately burdened is right next to it. How to tell the serious stuff from the jokes?

    I do like that you remember that lawyers are officers of the court. That obviously comes both with benefits and burdens, but in this case you’d like to remember just the benefits. In any case I didn’t say that the lawyer was lying, only that he hadn’t been pressed to explain why accepting this case and the statutory fee arrangement would be unduly burdensome.

    The lawyer said that the case could take up to 500 hours to prepare, and up to another 500 hours in the event it goes to trial. Accepting those estimates, the case could take up to 1000 hours, leaving this lawyer, according to the judge, another 820 billable hours for the year. If he receives his standard profit margin of $111 per hour for those hours, then the lawyer would make 91000 for the year, after paying his overhead expenses (including his taxes). (This comes from p. 20 of the opinion.) How does that compare to the national average wage? Are you suggesting that one can’t live on that amount in Florida? (What on earth do you tell your students, most of whom will require a good amount of time before they reach that income level, if they ever do.)

  10. Michael says:

    At least one of us is confused: I said, given the numbers in the opinion, that the court persuaded me that the statutory $75/hour fee cap was confiscatory in this case and thus violated the Florida constitutional provision at issue. I suggested that the court’s response — raising the cap and making progress payments — was appropriate, even praisworthy.

    How you get from that to imputing to me that the judge’s solution, which I gather you say would have the lawyer clearing $90K/yr if this were his only case (I haven’t done the math, but that sounds plausible), is bad or unfair, I can’t begin to fathom. I suspect for some sole practitioner lawyers in Manatee County that might be a cut in pay, for others maybe a step up, but without more info it seems in a zone of appropriateness to me. Where on earth did I suggest that you can’t live on 90K in Florida? I said 32K was not “lavish” as it’s below the median household income. (I don’t have good data to hand, but if this were a household income, it would be around the borderline between the first and second quintile. Are the top 20% in the US living a “lavish” lifestyle? I suppose from some perspectives, maybe they are.)

    On the more interesting constitutional question I don’t have a worked out theory of the extent to which the federal Constitution protects individuals from being singled out to bear burdens for the general welfare. [Note that the decision relies on an interpretation of the Florida Constitution which clearly finds a right protecting lawyers from “confiscatory” burdens of this kind.] There are clearly a number of factors that pull both ways including but not limited to the 13th Amendment, the Takings Clause of the 5th & 14th Amendments, the Equal Protection Clause of 14th Amendment, the 16th Amendment, maybe even the 3rd Amendment, just for starters. There’s probably something to be found in the police power, nuisance law, and of course licensing law. It’s a big subject.

    I suspect the final answer will be something like “some, but not too much” but without much more thinking than I can do in the grading season, I can’t even attempt to draw a line, much less a bright one. Citations to relevant cases or articles welcomed.

    Whether the standard of oppressiveness permitted is the same for workers as landowners is an interesting question. I am not even sure to what extent the burdens are commensurable, but the more they are, the more it would seem that argues for a similar standard. Similarly, to what extent having a license changes the calculation is also interesting. There are surely some set of conditions that the government cannot attach to a license; but it’s also surely that case that there can be some conditions permitted. Again, hard questions. But whether the protections available lawyers are different from other licensed professionals? That’s easy: Not much. Why at all? Because we require lawyers to make the justice system work, which affects constitutional rights in a way that the supply of licensed cosmetologists may not.

  11. Thomas says:

    It isn’t the judge’s solution that leads this lawyer to earn only $90,000; that’s the effect of the statute, which you think is unconstitutional. That’s how much the lawyer would make if he earned a profit of $111 per hour on 820 hours while earning only his overhead cost on the 1000 hours required by this case. The judge says that, assuming 1000 hours are required, the lawyer needs to earn at least $125,000 or the effect of the statute is confiscatory. Why can’t the lawyer live on that for the year, given that you think it’s in the zone of appropriateness? (One of my objections to the opinion was that the judge wasn’t more clear on exactly how much the lawyer earned, and how much the lawyer would earn under different scenarios. I think that lack of clarity was intentional.)

    As for the differences between the professions, I’m inclined in the abstract to agree–yes, lawyers are different. But I think you have it wrong when you talk about the “protections available” rather than the “appropriate burdens on” lawyers.

  12. Michael says:

    The court found that doing this case would get in the way of doing other work, or at least doing as much of it.

    I really have no idea what the going rate is in Manatee County for criminal defense work, nor how many hours a sole practitioner can expect to bill a year there. Without that information it is hard to get to the level of detail we’re drifting towards. The court suggested that going rate for this lawyer for this case would be $100,000 per 500 hours, i.e. $200,000 for the case. The court is giving him $125,000. That’s a big discount. Assuming the truth of the initial price estimate, are you arguing this rate is too high or too low?

    The case for “too low” is that any discount, modulo the value of the certain income stream, is a Takings. The case for “too high” is that it’s “lavish” money. Which is yours?

  13. Thomas says:

    I was at my kid’s soccer game yesterday, talking to another lawyer who has a national practice, including a significant number of cases in FL. His firm has offices in Florida, but he’s not licensed there, only in our state. The clients he works for are sophisticated. They want him and his firm to do the work. He’s been licensed for 13 years. He’s spending his free time this summer preparing to take the bar exam in FL because the FL rules prevent him from doing almost anything, and he can’t waive in.

    That’s a long way of saying that I’m not persuaded by what the “going rate” for lawyers in FL is. If the “going rate” is relevant, it’s relevant as one more bit of evidence of the benefits of being a member of the FL bar, and thus may justify the sacrifice, such as it is, demanded by the FL statute at issue in this case.

    The case said this lawyer doesn’t bill by the hour. I’d expect that he does a fair amount of flat fee plea bargain work; that’s what most folks in that biz do (“That’ll be $5000, and then another $x if it goes to trial”). That’s why the court had to back into a per hour fee–he didn’t have one. What the court suggests is that the lawyer makes a little over $200,000 each year, and that moving him too far from that number would be unconstitutional. I don’t buy that.

  14. Don't get fooled again. says:

    I’m a lawyer. Haworth is great at protecting the lawyers — wink, wink — but you should see what he does to the pro se folks. Oliver Wendell Holmes said the powerful should prevail over the weak and it’s the judges’ job to ensure that happens. This is the Haworth m.o. and the prevailing school of thought in this circuit. Actions and inactions speak louder than words. I’ve seen way too many of those who were defenseless/unable to adequately defend themselves be wrongfully trampled and then forgotten while the lawyers patted each other on the backs and posed for pro bono photo ops. Don’t forget the kid at the end of The Emperor’s New Clothes — you can’t tell ’em what they don’t want to hear and if one repeats a story enough times, for many an untruth can be morphed into a ‘truth.’

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