Florida institutes a “dangerous game of chance” in conflict representation

July 23, 2012


David Carroll


Pleading The Sixth


Pleading the Sixth: A new Florida statute allows judges to limit compensation for private attorneys handling conflict indigent defense cases.  A June 2012 Florida Innocence Commission report says the law “invites ineffective assistance of counsel and wrongful convictions.”  As some circuits impose the new requirements, the Florida Association of Criminal Defense Lawyers seeks to have law ruled unconstitutional.

On March 9, 2012, both chambers of the Florida Legislature unanimously passed Senate Bill 1960 amending assigned counsel compensation requirements and allowing judges to “restrict the number of attorneys on the general registry list” to only those “willing to accept as full payment the flat fees” prescribed by Florida law. Prior to the legislative change, an attorney could seek additional compensation beyond the established flat rates whenever necessitated by extraordinary events in any particular case. As the July 15, 2012 Palm Beach Post points out, the inability of attorneys to be paid for the actual number of hours worked on a case may result in attorneys working below minimum wage on some of the most serious of conflict cases (e.g., if an attorney works 358 hours on a serious, non-capital felony for the flat fee of $2,500, the attorney effectively works for approximately $7.00/hour; Florida’s minimum wage is $7.67/hour).

In each of the state’s 20 judicial circuits (covering 67 counties) public defender offices staffed with full time employees provide primary representation to indigent defendants. Each office is overseen by a popularly elected chief public defender to ensure independence from the judiciary and other government agencies. When a circuit public defender has a conflict – for example when there are multiple co-defendants or in instances of case overload – secondary representation is provided by five regional conflict defender offices covering each of the state’s five appellate jurisdictions, which are likewise staffed by full time employees (although the chief conflict attorney is not popularly elected). All circuit and regional staff public defenders are paid government employees that receive a salary. Therefore, an attorney’s take home pay is not impacted by the legal needs of individualized cases.

The new law therefore impacts only the third layer of indigent defense representation in Florida. Under the new statute, the presiding judge in a judicial circuit has authority to restrict the number of attorneys appointed to these “third-level” conflicts to only those attorneys willing to accept the flat rates and nothing more, as was done in the 11th Judicial Circuit (Miami-Dade County) by Administrative Order 12-02 on June 29, 2012. In these circuits with the newly authorized administrative policy, the conflict attorney’s take home pay will be better or worse depending on how many hours she puts in on a case. This produces a financial conflict for the attorney that is generally unknown to the defendant. Such practices violate the American Bar Association, Ten Principles of a Public Defense Delivery SystemPrinciple 8 requires that assigned counsel to “be paid a reasonable fee in addition to actual overhead and expenses. Contracts with private attorneys for public defense services should never be let primarily on the basis of cost; they should specify performance requirements and the anticipated workload, provide an overflow or funding mechanism for excess, unusual, or complex cases, and separately fund expert, investigative, and other litigation support services.”

Florida Association of Criminal Defense Lawyers’ Response

On July 2, 2012, the Florida Association of Criminal Defense Lawyers (FACDL) filed an objection to the 11th Judicial Circuit administrative order seeking for it to be withdrawn as unconstitutional (or alternatively, seeking an evidentiary hearing to air their objections). Because a court may now have both a limited registry of attorneys and a general registry of attorneys unwilling to accept flat fees, a four-defendant case likely makes defendant number three the only one with an attorney that has a financial conflict (i.e., first defendant gets a circuit public defender, second defendant gets regional conflict defender, third defendant gets attorney working under a flat fee, and the fourth defendant gets a private attorney who can seek additional pay.  As the FACDL objection states:

Under such a ‘luck of the draw’ scenario the Equal Protection clause of the Fourteenth Amendment is violated. The new law creates a class of indigent defendants who become members of that class for no reason other than simple bad luck … the legislature has created a modern day Trojan Horse: the appointment of an attorney clothed in a conflict free appearance, but who by definition has a financial interest in the quickest resolution possible. To the client appointed a limited registry attorney, the conflict is secret. In a multiple defendant case, the court is by all appearances appointing lawyers from the public defender’s office, the regional counsel’s office, and from the general registry. But only one client gets an attorney who bears the weight of financial pressures no other attorney in the case has.

For FACDL, the new law and administrative order has turned Miami-Dade court appointment process into “a dangerous game of chance. Some clients will never know how lucky they were to be second or fourth in line for an appointed attorney. “

The new law has also recently come under fire from the Florida Innocence Commission, a 25-member commission of judges, prosecutors and defense attorneys established by order of the Florida Supreme Court, and funded by the legislature, to recommend solutions to ”eliminate or significantly reduce the causes for wrongful or erroneous convictions.” On June 25, 2012 the Florida Innocence Commission issued their final report that stated in addition to eyewitness identifications, false confessions, informants and jail house snitches, and invalid or faulty scientific evidence, that one of the biggest causes of wrongful convictions is the “underfunding of the criminal justice system in Florida” (emphasis original). As part of that, the commission finds the new compensation scheme to be “completely inadequate” and “invites ineffective assistance of counsel and wrongful convictions.” The report recommends that the Florida Legislature abandon the flat fee approach in favor of one that pays attorneys appropriately.

FACDL is taking a multi-faceted approach to the new law and expects to file other objections in those circuits that have also administratively adopted the flat fee method for conflict representation. FACDL also requested injunctive relief to halt the implementation of the new law on the grounds that it “violates the single subject rule” in Article III, Section 6 of the state Constitution that requires every law embrace just one subject matter. Senate Bill 1960 contained several different actions amending several different statutes (from revising how regional conflict chief defenders are nominated and appointed to a requirement that court clerks submit reports on traffic assessments in an electronic format). SB 1960 was amended and passed through a budget conference process, which means that it did not pass through any committees and there was no real opportunity for debate (which may explain the unanimous vote). FACDL used similar arguments in a petition to the Florida Supreme Court asking to quash – or void – the implementation of the law.


The state Supreme Court may be the best place to end the practice of flat fee contracting for indigent defense services in Florida. In 1986, the Court ruled in Makemson v. Martin County, 491 So. 2nd 1109 (Fla. 1986) that inflexible attorney compensation schemes that do not allow for additional compensation in extraordinary situations interferes with a defendant’s Sixth Amendment right to effective assistance of counsel. Strict flat fee contracting, the Makemson Court argued, forces attorneys to either skimp on their ethical duties to provide zealous advocacy or to essentially provide pro bono representation. “When the United States Supreme Court, in Gideon v. Wainwright, 372 U.S. 335 (1963), found fundamental the right to effective counsel and established the state’s duty to provide representation to the indigent,” the Florida Court explained, “it by no means intended to place the weight of this duty upon the shoulders of a few individual practitioners appointed by the court.” The Court went on to hold that “it is within the inherent power of Florida’s trial courts to allow, in extraordinary and unusual cases, departure from the statute’s fee guidelines when necessary in order to ensure that an attorney who has served the public by defending the accused is not compensated in an amount which is confiscatory of his or her time, energy and talents.”

“Pleading the Sixth” will keep you posted on developments in this case as they occur.