Gideon Alert: Iowa S.Ct. finds rigid flat-fee contracts “substantially undermine” right to counsel

BY David Carroll on Wednesday, December 1, 2010 at 3:30 PM

The Iowa Supreme Court handed down a unanimous decision in Simmons v. State Public Defender, No. 07-0870 (Iowa Nov. 24, 2010), finding that a rigid fee cap of $1,500 per appellate case would “substantially undermine the right of indigents to effective assistance of counsel.”  The Court explained that “inadequate compensation will restrict the pool of attorneys willing to represent indigent defendants” and that “the low level of compensation threatens the quality of indigent representation because of the perverse economic incentives introduced into the criminal justice system. … Low compensation pits a lawyer’s economic interest … against the interest of the client.”  Reasoning that the fee caps at issue in the case would have a “profound chilling effect” on the right to counsel and that the legislature intended to uphold the right to counsel, the Court held that Iowa rules imposing a hard-fee cap are unenforceable.

In Iowa, indigent defense services are 100% state-funded and primarily administered through a statewide public defense agency.  The State Public Defender is appointed and serves at the pleasure of the governor and there is no independent commission as would be required under national standards.  Though the majority of services are provided by staff public defenders, the state public defender contracts with private attorneys to provide representation in areas not covered by staff attorneys (e.g., federal habeas) and to handle overload of the primary system.  Iowa law required the state public defender to establish “fee limitations” for contract counsel.  Following the Simmons decision, the state public defender must “authorize only a range of hourly rates that might be charged, the procedure for making fee claims, and soft-fee caps in categories of cases that may be rebutted by a showing of reasonableness and necessity.”
In reaching their decision, the Court examined the real-life results of fee caps on attorneys’ ability to earn a living.  Citing national workload standards supported by NLADA and the ABA that under no circumstances should a lawyer who exclusively handles appeals carry more than twenty-five appeals in a given year, the Court determined that a full-time lawyer would earn a gross income of $40,000 in Iowa.  “From this figure, the attorney must pay for overhead which, according to the Iowa State Bar Association survey offered into evidence in this case, was, for the average Iowa lawyer, in excess of $70,000.  Even assuming that a criminal defense lawyer working on appeals would have less overhead than the average Iowa lawyer, it seems clear that it would be very difficult for a lawyer working under the state public defender’s rule to earn a living.”
The Court also looked at the actual hourly rate earned by the attorney in the cases in question.  Attorney Kent Simmons was appointed to represent two defendants: one case was a postconviction relief proceeding (Millam v. State, 745 N.W.2d 719 (Iowa 2008)) and the other was a direct appeal (State v. Cromer, 765 N.W.2d 1 (Iowa 2009)).  Simmons was eventually successful in both cases, obtaining reversals of the convictions and new trials, based on the ineffective assistance of trial counsel.  He was paid only $1,500 for each case.  Based on the actual number of reasonable and necessary hours he worked in representing his clients, the court determined that he was paid $12.56/hour (Millam) and $12.27/hour (Cromer).  The Court observed: “Over the long run, payment of such hourly rates to appellate counsel will have a chilling effect on qualified lawyers taking this work and would discourage thorough appellate preparation.”  They concluded: “We will not enforce a contractual provision that has a chilling effect on the constitutional rights of criminal defendants and is inconsistent with the legislature’s intent to provide indigent defendants with effective assistance of counsel.” 
The Simmons decision, in many ways, offers a road map to advocates in other states who are considering potential litigation strategies, as well as to the jurists who must preside over them.  The Iowa Court went to great lengths to carefully analyze Strickland v. Washington.  The Court determined that “the Strickland prejudice test does not apply in cases involving systemic or structural challenges to the provision of indigent defense counsel that do not involve efforts to vacate criminal convictions.”  In a fee challenge case, the Court held that the issue was whether “the fee restrictions, if enforced, would have a substantial chilling effect on the constitutional rights of criminal defendants.”   
The Iowa Supreme Court deserves recognition for firmly acknowledging that “all defendants are entitled not simply to counsel, but to effective assistance of counsel” and that “the state has the constitutional obligation to provide an effective lawyer at state expense.”  As they observed: “Form does not prevail over substance.  While criminal defendants are not entitled to perfect counsel, they are entitled to a real, zealous advocate who will fiercely seek to protect their interests within the bounds of the law.”  That cannot occur without public defense attorneys having the time, tools, training and resources to treat each client’s case appropriately.  “[E]veryone agrees that Gideon was rightly decided,” the Court observed, “and no one believes it has been implemented” in the majority of states.  Here’s hoping other state supreme courts will soon follow in giving life to the right to counsel.