South Carolina Lawyer
SC Lawyer, March 2007, #5.
Rule 608 Civil Court Appointments: Does Unfunded Mean Unconstitutional?
South Carolina LawyerMarch 2007Rule 608 Civil Court Appointments: Does Unfunded Mean Unconstitutional?By Bradish J. Waring, Wallace K. Lightsey and Burnet R. Maybank IIIA lawyer's time and advice are his stock in trade. - Abraham Lincoln
How can the legal profession and the State equitably and responsibly balance the public service aspect of the profession with the business realities of lawyering? This is the question that underlies the disconnect between the South Carolina Bar's ongoing call for fair compensation for civil court appointments and the response of the South Carolina courts and legislature.
On the one hand, is the right of indigents in certain cases to have competent counsel to protect their constitutional rights, such as in parental rights termination cases. It is understood that the legal profession's call to voluntary public service, as reflected in the revised Oath of Office for Attorneys, is a noble tradition that should be embraced, not abandoned. However, on the other hand it is believed that the State of South Carolina, through its current practice of refusing to adequately fund its own statutory provisions, seeks to fulfill its duty to such indigents at the unjustified expense of the constitutional rights of the attorneys so appointed. Such under-compensated appointments not only raise constitutional issues, such as governmental taking of property without just compensation, violations of equal protection and due process, and involuntary servitude, but are often ineffective in delivering the very thing that they were designed to provide - competent legal representation. There has to be a better way.
South Carolina's current court appointment compensation system
Rule 608 of the S.C. Appellate Court Rules authorizes the circuit or family court to appoint an attorney to serve as counsel or guardian ad litem for indigents within the State and outlines the process for such appointments. See S.C. App. Ct. R. 608. The Rule exempts 13 categories of attorneys from the appointments, including attorneys employed by the government. See S.C. App. Ct. R. 608(d). Section 14-1-235 of the S.C. Code provides what appears to be a limitation on court appointments, stating, "A judge, court, or court official shall not appoint an attorney to represent a party in a civil action unless the authority to make the appointment is specifically provided by statute." S.C. Code Ann. § 14-1-235 (Supp. 2006). However, because the S.C. Code provides for appointment in a wide variety of cases, in practice the statute has no real limiting effect.
Court-appointed attorneys in civil cases (excluding post conviction relief cases) are entitled to be paid a "reasonable fee" based on $40 per hour, with a $1,750 cap. Funds for civil appointments are to be paid from the Civil Appointment Fund (Fund) created by the legislature in 1999.
See 1999-2000 S.C. General Appropriations Act, H. 3696. However, appropriations cuts have caused resources earmarked for the Fund to dwindle. And although increases in court fines have helped to sustain the Fund, as the 2003-2004 Accountability Report from the Commission on Indigent Defense, which operates the Fund, states, "[t]he main barrier to the successful operation of this Agency is adequate appropriated funding. . . . [s]trong appropriated funds are necessary." S.C. Comm'n on Indigent Def., FY 2003-2004 Accountability Report 4 (2004). Furthermore, many attorneys eligible to receive pay for civil court appointments do not file for reimbursement, in all likelihood due to the impracticality of applying to receive such low amounts resulting from the caps imposed and the delay in obtaining such requested funds. See id.
Effects of inadequate compensation for mandatory service
Given the low compensation rates and caps and the lack of substantial appropriations, the effect of the current system is, in essence, a mandate that lawyers carry the bulk of the financial burden for the execution of a largely public function - providing access to courts for indigents in certain cases. While attorneys should be encouraged to be civic-minded and provide a portion of their services pro bono to the community, the current court appointment system raises serious ethical and efficiency issues.
Although attorneys are required to be competent in the matters they handle, see S.C. App. Ct. R. 407, R. 1.1, court-appointed attorneys who do not litigate for a living have little or no experience in the types of cases for which they have been appointed. This can result in inadequate representation and may even rise to the level of ineffective assistance of counsel in some cases. Such ineffective assistance of counsel can have the effect of further straining judicial resources, for instance where continuances or delays result. Additionally, inexperienced counsel is likely to submit for...