SC Lawyer, March 2005, #7. The imbalance of court appointments.

South Carolina Lawyer

2005.

SC Lawyer, March 2005, #7.

The imbalance of court appointments

South Carolina LawyerMarch 2005The imbalance of court appointmentsReport of the Task Force on Court AppointmentsThe Task Force on Court Appointments was created by the Board of Governors to address growing concern over the undue burden placed on members of the South Carolina Bar by Rule 608, South Carolina Appellate Court Rules.

The legal profession historically has stepped in when government has failed to preserve the interests of the less fortunate in society. Whether that service is recognized as an honor or a duty, in the past it has been undertaken willingly by a vast majority of lawyers. The revised Oath of Office for Attorneys preserves the concept of voluntary public service by calling on lawyers to ensure that justice is available to all citizens. Yet, as we carefully consider the burden imposed upon lawyers by Rule 608 and fair and reasonable alternatives to the plan imposed by that rule, we want to make clear that it is not the suggestion of the Task Force that the noble tradition of voluntary public service be abandoned.

Society as a whole has an obligation to ensure that persons who need representation and cannot secure it with their own resources are provided counsel. The legal profession's responsibility is to assist and not to bear this obligation alone.

Rule 608 was a legitimate temporary response to a problem facing the State. There were lawyers being grossly overburdened with court appointments while others were receiving none. There was incomplete data on the volume of appointments on which to project the fiscal responsibility of the State. There was an expectation that adequate funding would be provided.

Closer examination, however, has demonstrated that the burden on lawyers of court appointments is one in large part created by the State without the State in turn meeting its fiscal responsibility. Rule 608, in large part, has shifted the State's obligation to ensure, or desire to expedite, justice squarely to the shoulders of one segment of society - the lawyers. It has compelled service in a manner which is neither the most efficient use of voluntary service nor consistent with the spirit of the lawyer's traditional and historic role in society.

It is time to discard the temporary bridge effort effected through Rule 608. Experience has demonstrated that a new response is needed.

Practical Rationale for Change

There are practical problems encountered in any appointment system, but they are enhanced and exacerbated in the present system.

Notice of the appointment may come too late to provide complete service to the prospective client. At the same time, clients with appointed counsel need not and may not cooperate or may have unrealistic demands (e.g., attention, media coverage).

Where there is a right to trial counsel, that right is for effective counsel. Ineffective counsel raises the risk of burdening the judicial system where retrials are ordered.

Counsel are inefficient in serving clients in matters beyond their experience and expertise, and inefficient lawyers may not provide effective counsel to those clients. Inefficient counsel may also deplete the limited funding available by submitting for reimbursement more time than may be required by efficient counsel. Further, caps on reimbursement in a matter may limit reimbursement to counsel initially appointed to the case and may preclude entirely reimbursement to substitute counsel.

Expenses (e.g., copies, mileage, secretarial help) are being absorbed by counsel. Vouchers for fees are not submitted because there is no expectation of payment.

There are safety concerns when lawyers may be required to travel in unsafe areas of the state to investigate matters, conduct home visits to an uncooperative person, and otherwise gather evidence and inform herself or himself about the merits of a case.

There are extra burdens placed on judicial systems. The opposing side is not necessarily cooperative. Dockets are slowed by inefficient counsel who require continuances. Motions are required when erroneous appointments are made, further burdening the judicial process. Unfounded grievances may be filed, further burdening the lawyer discipline system, as well as imposing additional costs and burden in time and resources plus unwanted anxiety upon the appointed lawyer.

A limit on the number of appointments does not take into account that some cases run for years. Persons not entitled to representation even under the current statutory scheme are appointed counsel through inadequate screening.

There is anecdotal evidence that lawyers have left the practice or undertaken inactive member status as a means of survival of the effects of Rule 608, and exemptions such as Rule 608 (d)(1)(K) implicitly recognize that even one appointment can have a deleterious impact.

Paradoxically, there is an adverse effect on the...