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Tennessee Supreme Court Proposes “Bidding” System For Indigent Legal Services

September 15, 2011

Tennessee Supreme Court Proposes “Bidding” System For Indigent Legal Services

Anyone who watches police or detective television shows is familiar with a person’s Miranda rights. “You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney, if you cannot afford one, one will be appointed to you.” However, a recent proposal under the consideration of the Tennessee Supreme Court could negatively impact the fundamental right to counsel in a criminal case. In an attempt to cut costs, the Tennessee Administrative Office of the Court has proposed a new system of payment for attorneys representing underprivileged defendants. The current structure calculates an attorney’s compensation by an hourly rate with a cap on total payment. However, in complex cases requiring significant amounts of time, the cap can pose a potential problem.
The proposed system eliminates the time factor and seeks to establish a flat-fee contract, awardable to the attorney who is the lowest bidder. Therefore, the issue of an attorney’s time and effort becomes moot, as an attorney’s compensation would be a lump sum derived purely from the number of cases handled. In speaking with the Tennessean, state courts spokeswoman Laura Click stated that the bidding system would only be used in two types of cases: contempt proceedings for the nonpayment of child support and proceedings involving the involuntary commitment of a person to a mental health institution. Conversely, AOC general counsel David Haines expressed the possibility that the system could be expanded to include other types of cases, such as criminal defense.
Critics of the new system worry that it could result in lower quality representation by creating a race to the bottom. Under the proposal, attorneys are only allowed to bid down, as they would be restricted from receiving more compensation than under the current system. Likewise, the system fails to establish the minimum experience and workload a lawyer must possess to participate in bidding. Moreover, since lawyers are would no longer be compensated for their time there is less of an incentive for quality representation, in addition to the possibility of clients being pressured to plead guilty more often. The potential for decrease in the quality of representation makes it likely that spending would actually increase as lengthy appeals and retrials would become necessary to correct attorney mistakes. “While it is important to conserve resources in the difficult budgetary times, savings should not come at the expense of the Constitution,” Virginia Sloan, president of the Washington-based Constitution Project.
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Posted By: Eston Whiteside