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Legislators pass Indigent Defense Reform

By Peter Teske

JUNE 10, 2011



Mobile County for the most part looks to benefit from the final Indigent Defense reform bill passed by the Alabama Legislature June 9, according to local attorney and indigent defense advocate Jason Darley and another national reform expert.

The bill creates a State Office of Indigent Defense Services and a local advisory boards in each judicial circuit in the state. Those two bodies will be charged with determining the most efficient and effective way to deliver a defense to Alabama's poor.

Changed from many of the early drafts of the bill, the version signed into law will give the local advisory boards a larger say in determining whether a circuit should adopt an appointment, public defender or contract attorney system. If the state office doesn't agree with the system chosen, it then assumes the burden of proving the system ineffective before initiating a change.

The bill will also significantly change the way attorneys file their fee declaration forms.

Under the new law, attorneys can't charge for overhead expenses -- such as rent for an office, office supplies, travel costs, etc. Instead the previous fee structure -- a $60-per-hour in-court fee, $40-per-hour out-of-court fee and $25 overhead fee -- has been consolidated into a simple $70 per hour charge for work performed.

Additionally the cap set for what attorneys can earn on a specific type of case was bumped upwards by about $500 from misdemeanors to capital cases. Darley said in Mobile County, at least, attorneys might end up making more money.

The bill also drastically reduces the amount of time attorneys have to fill their billings by changing what is involved in a given case. Under the old system, an attorney had six years after a disposition was handed down in a case to file a fee declaration. This lengthy amount of time was offered because probation hearings and appeal work were considered the same as the original case.

The new system, from a billing standpoint, will see the original case as separate from probation hearings or appeals. Once the court has handed down a disposition, attorneys will now have 90 days to file their fee declaration.

Lagniappe has reported on the Indigent Defense System in Mobile County since 2007.

In that time, the focus of many of those articles has been two top-earning attorneys in the indigent defense system. Both earn salaries far greater than other attorneys doing indigent defense work, and some have questioned how they are able to get so many appointments.

Lee Hale Jr. and Habib Yazdi have both earned as much as $250,000 annually during the course of this publication's analysis. Overhead charges have consumed a large portion of those overall earnings for Yazdi, at least, according to Alabama Department of Finance records. Past critics of Alabama's indigent defense systems have essentially said the system wasn't set up to make that much money.

In 2008 when Yazdi earned $247,819, roughly $87,000 of that total was in overhead. In 2009 Yazdi earned roughly $95,000 from overhead with a $267,193 total. And in 2010, Yazdi brought home a total of $239,158 with roughly $85,000 of that bill being filed under overhead.

But even those figures aren't complete in reflecting Yazdi's workload over the course of one year. Previously, in order to gain a complete understanding of Yazdi's earnings in 2008 for instance, an investigator or auditor would have to wait until a report issued by the state comptroller in 2014.

Darley said these measures add a "level of safeguarding" for perceived abuses of the system.

"In addition to more ethics filings, you've also got another office (The State Office of Indigent Defense Services) looking at fee declarations," Darley said.

Even with the changes, Darley noted, many attorneys are likely to still receive notice documents and other items related to cases they've already submitted for billing.

"These are things that a lot of lawyers never even end up charging for," Darley said.

Continuity amongst attorney appointments for the same clients, he added, is something that will probably be worked out by judges as it was in the past system. National Legal Aid and Defender Association Researcher David Carroll summarized the bill rather positively from the standpoint of someone who has consistently urged reform for Alabama's system, but says the task of implementation is the real challenge.

"NLADA applauds Gov. Bentley, Sen. Ward and others for their leadership in getting SB 440 through the legislature," Carroll said.  "The bill offers hope that Alabama policy-makers can one day ensure equal access to justice while being accountable to Alabama tax-payers. Though it is certainly rewarding to reach a plateau and take a moment to acknowledge that something important was accomplished, the depth and the breadth of the issues still facing people of insufficient means in Alabama means that the toughest parts of the battle lie ahead. The work to effectively implement SB 440 in the coming months and years will be difficult.  NLADA remains optimistic that the Alabama State Bar, the Courts and other elected officials will be up to the task."

The reform bill is expected to save the state as much as $23.5 million, according to figures cited by the bill's sponsor.

Original versions of the bill had called for more drastic changes to Mobile County's system. Essentially, the early drafts would have forced Mobile County from an appointment system to either a public defender system or contract attorney system.

However, a group representing the 13th Judicial Circuit's interests, Darley said, lobbied against those drafts. One of the main points lobbyists drove home were the low costs and high number of cases cleared in Mobile County. Compared with Mobile's appointment system, Tuscaloosa's public defender system processed roughly a third of the cases for almost the same amount of money last year.

"For judges, attorneys and those who rely on the indigent defense system," Darley said, "I think Mobile County came out OK."

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What should be Mayor-elect Stimpson's top priority?

Examining the budget.
Evaluating city employees.
Addressing public safety issues.
Improving infrastructure.
Free fish plates.

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