Standard:

Public defense attorneys and staff should be compensated at a rate commensurate with their training and experience. To attract and retain qualified personnel, compensation and benefit levels should be comparable to those of attorneys and staff in prosecutorial offices in the area.

For assigned counsel, reasonable compensation should be provided. Compensation should reflect the time and labor required to be spent by the attorney and the degree of professional experience demanded by the case. Assigned counsel should be compensated for out-of-pocket expenses.

Contracts should provide for extraordinary compensation over and above the normal contract terms for cases which require an extraordinary amount of time and preparation, including, but not limited to, death penalty cases. Services which require extraordinary fees should be defined in the contract.

Related Standards:

American Bar Association, Standards for Criminal Justice, 5-2.4 and 5-3.1.

American Bar Association, Guidelines for the Appointment and Performance in Death Penalty Cases, 1988, Standard 10-1.

National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, 1973, Standards 13.7 and 13.11.

National Legal Aid and Defender Association, Standards for Defender Services, Standard IV-4.

National Legal Aid and Defender Association, Guidelines for Negotiating and Awarding Indigent Legal Defense Contracts, 1984, Standard III-10 and III-11. ¹

Seattle-King County Bar Association Indigent Defense Services Task Force, Guidelines for Accreditation of Defender Agencies, 1982, Guideline No. 6.

Commentary: ²

The report on public defense commissioned by the 1988 legislature found that salaries for public defenders in Washington are lower than in other states. Further, the report said, there are no state standards which assume parity in salary and job classification between public defenders and prosecuting attorneys. (The Spangenberg Group, Indigent Defense Services in Washington, 1989, p. ii.)

The ability to attract and retain qualified lawyers in criminal defense programs is extremely difficult when the compensation is inadequate. Many of the most skilled attorneys quickly move on, creating defender offices where inexperienced attorneys handle the bulk of the cases. Lawyers who know they will not receive compensation which reflects the time and effort they have put into a case may fail to do all within their power to vigorously defend their client. The resulting cynicism of clients toward their attorneys or of the attorneys themselves toward the system can only undermine the public's confidence in the judicial system and the integrity of the fact-finding process. No other members of the criminal justice system are asked to work for patently inadequate wages, and yet public defense attorneys routinely represent clients at a fraction of the rate which private attorneys would receive.

The American Bar Association's Standards for Criminal Justice (5-3.1) suggests that defender salaries be "comparable to that provided their counterparts in the prosecutorial offices" so that the quality of the defense bar remains high and so that public defenders might have the same career opportunities as prosecutors.

Parity between public defense attorneys and staff and those in prosecutorial offices should not be limited to salary. Rather, the total compensation package, including medical, sick leave, insurance, and retirement benefits, should be equal. An attorney's "counterpart" in a prosecutor's office should be determined based upon professional experience and the type of case each lawyer is qualified to handle.

The 1988 report on public defense also found that the fees paid to assigned counsel in Washington were frequently inadequate. Judges cited the difficulty in securing competent counsel, particularly in serious felony cases, because of the low level of compensation. Experienced attorneys were withdrawing their names from assigned counsel lists rather than accept payment which in no way reflected the time and professional experience demanded by the appointment. In King County, for example, assigned counsel receive $22 per hour, a rate unchanged in a decade.

One measure of whether compensation for defense attorneys is adequate is to compare the fees paid to assigned counsel, contract, or public defense attorneys to those paid to privately retained counsel in the same jurisdiction for performing the same type of work. The NLADA Guidelines note that compensation should reflect "the customary compensation in the community for similar services rendered by privately retained counsel to a non-indigent client or by government or other publicly-paid attorneys to a public client...."

Extraordinary compensation should be provided for those cases which demand exceptional amounts of time and labor, as well as an unusually high degree of professional ability. Counsel in death penalty cases have duties and functions significantly different than those of counsel in ordinary criminal cases. Death penalty cases now involve two "trials", the trial phase and the penalty proceeding at which the decision to take or spare the client's life is made. The length, complexity, and extreme pressure of death penalty representation must be reflected in the compensation.

Extraordinary compensation is also warranted in those cases in which unusually large number of counts have been filed against one defendant, or when the government has had several years to develop its case or has retained an unusually high number of specified experts. Each of these situations is likely to produce exceptional amounts of evidence, much of it highly specialized, and will demand extraordinary amounts of attorney time.

These exceptional cases can seldom be predicted either by the attorney or the contracting authority and there is no reason why the financial burden of such cases should fall upon the defense attorney. Contracts which do not make some provision for such cases will discourage qualified attorneys from participating or will invite contract padding to protect the attorney against the unforeseen financially disastrous case.