At first glance, it looks like the criminal defense-focused solo practitioner has a tough row to plow for the foreseeable future, but in reality this is a valuable opportunity to revamp our practices. I have spent close to a decade focused on practicing in the criminal defense world representing thousands of indigent clients, with a majority of that time being spent in solo and small firm practice. I give this background to convey my experience in indigent defense, how the COVID-19 pandemic has impacted my practice, and how we are preparing for our journey into uncharted territory.
I make my living primarily as a criminal defense trial attorney. This means if I’m not going to court and litigating cases, I’m not providing income for my practice. While I make a living off my hired cases I, like most defense attorneys, keep the lights on with appointed cases. Nearly all defense attorneys will feel the sting of the effects of COVID-19. However, this may be the time that we analyze the current state of indigent defense in Texas.
If you are not aware of fee scheduling on appointed cases, let me catch you up. It’s awfully difficult to make a living unless you are turning and burning defendants like a judicial feedlot or submitting hourly vouchers that are scrutinized and generally cut due to county commissioners’ budget fears.
Currently, I see the average misdemeanor voucher bringing in around $300 a plea, while felony cases are being paid around $500 on average. Keep in mind, a voucher for an appointed case is generally only submitted upon resolution. This has led me to schedule monthly large plea dockets to work through my hired and appointed cases together to maximize time and revenue by spending more time preparing cases in advance of dockets, rather than the day of.
Since mid-March I’ve seen a pattern of courts shutting down all non-essential hearings well into May. Court coordinators and district judges I regularly practice under are doing a great job of trying to conjure up pragmatic solutions to adhere to social distancing while attempting to avoid any violation of constitutional rights for incarcerated individuals, but we don’t have a unified solution yet. We are being told that jails are shutting down visitation to everyone but attorneys and medical staff, but then we as attorneys must weigh the potential consequences of contracting or spreading COVID-19. I have reached out via telephone to my incarcerated clients to explain that I am playing it safe and sheltering in place between my locked office and my house. I then update them on discovery review and my suggested actions on each individual case. It is crucial for attorneys to stay in touch with their clients during this time of uncertainty, especially their indigent clients. Double-check contact information for your clients and verify multiple forms of contact information. The individuals we represent look to us for counsel, and we have an opportunity to rise to the occasion—not only concerning pending legal matters but also on their societal outlook.
Rather than sitting in your house or office waiting for the sky to fall, this is the time to work with the state on reaching desirable plea bargains on your non-triable cases. The general consensus seems to be aimed at clearing the jails of all but violent defendants and flight risks. The state and defense have an interest judicially and economically to negotiate in a reasonable manner.
At this point, we’ve gone over how we get paid on indigent cases, the need to continue working on our indigent clients’ cases, and the shared desire to continue moving forward with dockets. Now, how do we put this in practice and continue to produce income on appointed matters? I believe it’s going to take streamlining, partial vouchering, and implementation of telework in our courtrooms and jails.
First, we must streamline our cases. We have all been guilty at some point of waiting until the day of docket call to attempt resolution. In an ideal world this would not be an issue, but as a practical matter, it occurs when we have too many balls in the air while trying to run a successful business. This is easily avoided by simply putting in the prep work before a docket. With dockets getting moved out for months, there is no excuse besides illness to keep us from being fully prepared to move forward on our clients’ matters. This means you need to get your discovery, view said discovery, communicate with your client, communicate with the state, present options to your client, and in turn prepare for a plea or start filing pre-trial motions. If a resolution through a plea is available for an incarcerated client, email or call the court coordinator to see if it’s feasible to proceed with said plea.
When you have a plan in place before docket call, you can resolve a number of cases in one day and get paid while effectively representing your clients’ interests. This preparation saves you time, your clients’ time, the court’s time, and taxpayers’ dollars. You may be thinking, Why put in the time on appointed cases if I’m not going to be able to voucher until case completion and I have no clue when the next normal docket will be? This leads me to my next suggestion, partial vouchering.
In my experience, I rarely submit partial vouchers on appointed cases. Due to COVID-19, we won’t be able to turn in vouchers regularly like we are used to, thus facilitating the need for partial vouchering. Besides the obvious issues with due process, there may be little incentive for the solo practitioner to work for the foreseeable future on indigent cases without the implementation of partial vouchering. Moving to a monthly accounting or vouchering system could create more reasonable returns on cases and more quality attorneys taking appointed cases. Monthly vouchering, though more time consuming for all involved, would enable judges to track case progress and incentivize attorneys to put in the required time and effort to represent our indigent population. Thus, trimming the fat of ineffective representation and rewarding the zealous advocate. Even with moving to partial vouchering, how can we get pre-trial matters and pleas heard during the pandemic? The answer is cohesive statewide infrastructure for teleworking.
I recently viewed the TexasBarCLE free webcast “Practicing Law in the Shadow of COVID-19” and recommend all practitioners use this free information. In the presentation, Jefferson Fisher explains that this disaster is pushing us into the world of teleworking much earlier than any of us expected. I have often wondered how I could work remotely as a criminal defense trial attorney. The answer is the implementation of teleworking in our jails and courtrooms. The Zoom platform is starting to be used, and it appears to be a viable solution for conducting business while practicing social distancing. Through Zoom-type platforms, we can have group meetings with defense counsel, a prosecutor, a judge, a court reporter, and the defendant without the need for inmate transportation or physical appearance in one location by all parties. I envision a scenario where I send plea paperwork to a jail electronically, the jail presents my client with said paperwork, I have a Zoom meeting with my client going through admonishments, and paperwork is signed and sent electronically to the district attorney’s office to be signed and sent to the clerk’s office. The next step is a teleconference between the clerk and my client and for my client to be sworn in. The clerk then sends the paperwork to the judge, and we conduct a remote plea. This sounds like an arduous process, but once a system is in place, we will have embarked on a new era of court proceedings.
In closing, we are in a fluid environment that could have catastrophic economic and medical implications. However, the solo practitioner that is heavily involved in indigent defense has the opportunity to thrive and enact positive change in this often criticized system.
Zachary Morris has spent almost the past decade advocating and litigating cases for the criminally accused in Texas. He spent just under two years at the Bowie County Public Defender’s Office after graduating from the Texas Tech University School of Law. Morris has been in his current office in Lampasas since 2016 but has represented clients in the greater Austin area, Central Texas, and the Hill Country since 2013.