Macon lawyers concerned about new flat fee schedule

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Brittney Burns – Staff Writer

Western North Carolina lawyers met in the courthouse in Macon County on Thursday to hear from Thomas Mahr, executive director of North Carolina’s Office of Indigent Defense Services.

In August 2000, the North Carolina General Assembly passed the Indigent Defense Services Act of 2000 (“IDS Act”), which created the Office of Indigent Defense Services (“IDS Office”) and its 13-member governing body, the Commission on Indigent Defense Services (“IDS Commission”).  The law made it possible for those in need of assistance in the court system to apply for court-appointed lawyers.

Court-appointed lawyers in North Carolina are paid one of three ways. Nine counties in the state compensate court-appointed lawyers based on contract services and a set amount of cases. Two counties in the state, Rowan and Cabarrus counties, have a set fee schedule for court-appointed lawyers based on the type of case being handled. The remaining counties are under a set rate fee schedule that compensates court-appointed lawyers at a rate of $55 an hour for their services.

Last year, the North Carolina General Assembly passed legislation to approve a six county pilot program to test out a model fee schedule for Indigent Defense Services provided by the state. The six counties selected for the program includes Burke, Davidson, Iredell, Lincoln, Watauga, and Macon counties. While Burke, Davidson, Iredell, and Lincoln counties are single county court districts, where lawyers operate within one county, both Watauga and Macon counties are part of larger service areas, where lawyers often have cases in multiple counties. Macon is in the 30th judicial district, which serves Cherokee, Clay, Graham, Macon, Swain, Jackson and Haywood counties. Based on the program, the lawyers will still receive the hourly rates in all counties in the district except Macon.

The pilot project for district courts across the state is an attempt to get a uniform attorney fee schedule. The Administrative Office of the Courts, in consultation with the Office of Indigent Defense Services and the chief district court judges and judicial district bars of selected judicial districts mandate that they must establish and implement a pilot project to establish a uniform fee schedule for payment of attorney fees for the defense of indigent defendants in district court.

Mahr presented that proposed fee schedule to lawyers who serve Macon County last Thursday and was met with questions and concerns about the program and its impact on individuals receiving services in Western North Carolina.

Lawyer concerns ranged from how the flat fees wouldn’t fairly compensate Macon County lawyers for the travel time associated with traveling the extensive distance of the district, to how as a smaller district, cost are typically higher in Macon compared to other counties in the state.

According to Mahr, when the flat fee schedule was established, a provision in the pilot program deemed extraordinary services was included to cover additional cost for cases that require more than the average time for a specific case. For example, the proposed fee schedule would have a flat model fee of $400 for Class A-D felonies. If a case far exceeds the average time for such cases, a judge can deem the case to be an extraordinary case and additional funds would be provided to the lawyer beyond the flat $400 fee.

Rich Cassidy, a lawyer practicing in Macon County, like most lawyers in attendance, was vocal in his opposition to the flat fee schedule. In an email sent to his colleagues, Cassidy said, “There are occasions where $185 for a class 1-3 misdemeanor, $200 for a class A1 misdemeanor, $230 for a felony, or $300 for a DWI will make you more money than if you pled them at $55 an hour,” he wrote. “However, that will only happen if you can plead that case that morning. If you sit through the docket call, throughout the Domestic Violence Protective Orders, jump the line, through the court appointed applications, 96-hour hearings, and inmate issues, you will lose money through the passage of time. That is especially true if your case is a trial and not a plea. And your losses will mount if you do not handle it that day and have two, three, or more court appearances.”

According to Mahr, the pilot program was implemented by the state as a means to save money. A flat fee is more predictable than an hourly fee, in theory. But in practice, with a specific budget for extraordinary cases, which have few guidelines to follow and is left up to a judge to decide, attempting to budget for the number of times a case would be deemed extraordinary seems as impossible to predict as how many hours lawyers will report each year.

Mahr said in reality, his Indigent Defense Services budget hasn’t change from year to year. The types of cases are hard to predict, but on average, the money spent to provide the services typically stays the same.

In February there were 58 instances where court-appointed lawyers were assigned to a case. The cost of those cases ranged from $27.50 for a Class H Felony that was pled to $4,760 for a Class C Felony. The Class C Felony at $55 an hour equates to 86.5 hours of work on behalf of the court-appointed lawyer.

For February alone, $19,019 was spent in Macon County for the 58 cases of Indigent Defense Services. The average cost per case was $327.90. The proposed flat fee schedule breaks down the cost of cases based on the type of case. For example, the fee proposes a flat $300 fee for DWI cases. In February, there were six DWI cases in Macon County with the most expensive case costing $396. Only two of the six cases exceeded the $300 flat fee proposed, with the average cost of the cases reaching $224.50, meaning that for four of the six cases, lawyers would have made more money under the flat fee schedule than they would have based on the hourly rate.

The flat fee proposal would charge a flat $185 fee for probation violation cases. In February, there were four such cases ranging from $55, one hour of work, to $414, 7.5 hours of work. The average case cost was $238. Out of the four cases in February, all but one case would have exceeded the $185 proposed by the new fees, meaning lawyers would have lost money each time.

Felony cases in Macon County accounted for 20 of the 58 court-appointed cases in February. The proposed fee for felony cases is $230, while the average cost was $286.13. Eleven out of the 20 cases cost more than $230, once again lawyers would have lost money based on the proposed fees.

Lawyers in the 30th Judicial District pick and choose which counties they want to represent. While most lawyers work multiple counties, they aren’t required to provide services in any specific county. Cassidy shared his concern of what would happen to defendants in Macon County if lawyers choose to remove their name from the Indigent Defense Service list in Macon County because of the probability of losing money and not being fairly compensated for their work.

Mahr urged lawyers to not do that and to at least try the proposed fee schedule out before coming off the list, but said if that were to happen, his office would have to report to the state and the legislation may possibly be changed from there.

The pilot program has no set end date, but will be implemented by mid-April. While the law was passed last year, the counties that are participating were just selected and informed. Mahr said there is the possibility of continuously monitoring the program’s success and changes may be possible based on that information.

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