Liability for Court-Appointed Counsel

In Texas, a lawyer is responsible for her client until she is removed from the case by the judge. If something goes undone while the lawyer is responsible, she can be grieved and (in certain narrow circumstances) sued.

So when (for example) a defendant makes bail, appointed counsel remains legally on the hook until new counsel substitutes in or the judge signs an order removing the lawyer.

I mention this because it appears from my review of cases in which indigent people made bail that the standard practice of Harris County’s criminal judges when defendants make bail is to treat appointed counsel as though they’re off the case (and won’t be paid for any more work) but not put anything on the record.

If I took court-appointed cases in the county, I would find this objectionable: until there’s a record of my removal, it’s my case; if something needs to be done I have to do it; if I have to do it, I’m going to do it; and if I’m going to do it, I should be paid for it.

It wouldn’t be hard for a judge to sign an order removing appointed counsel when a defendant makes bail, thereby making an explicit record of the gap in representation until the defendant hires counsel or convinces the judge that he’s still indigent (or gets rearrested).

A record: there’s the rub. No judge wants to make a clear record that he has (unlawfully) deprived an accused person of counsel while criminal proceedings are pending. Better to keep the appointed lawyer as a scapegoat, with an understanding that she won’t be paid for actually doing anything.

So why don’t those who rely on judges to appoint them to cases raise a stink when those judges stop paying them to represent indigent people on bail, but don’t sign orders taking them off the cases?

Put that way, the question answers itself, doesn’t it?

0 responses to “Liability for Court-Appointed Counsel”

  1. Actually, Mark, I do not find that to be the case in the one court I take appointments in. If the person makes bond, they must establish their indigency status, and if they do, I am left on. If they don’t, I am taken off (via a motion to withdraw which is a form, or a motion to subsitute which is a form – made by the court & perfectly fine). As for indigency, and this absolutely does not apply in other courts I’ve been in, the one court I work in is tight with the financial reigns and makes these people get a JOB like the rest of us to hire their own lawyer.

    I think this particular blog is overstating the actual happenings at the courthouse – at least in SOME courts (not others – for certain. But, you make it appear across the board.)

    • When you’ve been appointed, your client has already been found to have been indigent, and is presumed to remain indigent (see CCP 26.04(p)). And the fact that a defendant makes bail is not relevant (see CCP 26.04(m)), except as it reflects the defendant’s own financial circumstances (which it usually doesn’t, since momma makes bail).

      When one of your clients makes bail and he still wants you to represent him, you do fight to keep the judge from firing you, don’t you? You explain to the court that your client is presumptively indigent and the mere fact of his making bail doesn’t change that?

      • I’ve never been taken off so . . . I’ve just seen her talking to other defendants about getting a job but it was when the lawyer got off, I think. I know that she insists that everyone at least try to get a job.

        I know the last audience case I was appointed on, which I got dismissed on the first day, had come to court 7 times THA (to hire a lawyer) and had still not gotten a job. His attitude was when his case was dismissed, he would get his old job back so he wasn’t getting a new lawyer. She just got exasperated, it seems.

        I think it is good that she won’t just easily appoint a lawyer. In fact, many people – I thought Mark included – didn’t want (& still don’t want – as I don’t want) – judges just appointing lawyers without the REAL inquiry into the financial position. The reality is that some of the judges quickly appoint lawyers & keep them on the case so they will plead them, and plead them faster. (I have found most people who make bond were not indigent in the first place – maybe didn’t have a lot of money – but not indigent – and they bring a lawyer with them when they get out. I have had a couple of people make bond & she left me on without a word.

        People think if they make bond, they will get a better deal. It is better if they intend to go to trial – I have a guy I told to get out who is just in that position. But, they don’t get a better deal usually if they have a good lawyer appointed who knows what the best deal is going to be.

        The court I work in on occasion, which is the only one I work in, is a good court with nice people & a concerned judge – in my opinion.

        • As I think of it, I believe maybe the younger ones are the ones she doesn’t really mess with but the older ones she wants working. I think I’ll try to pay attention to see if there is a pattern.

      • Thank you Mark. My parents posted bail for me without consulting me when I was charged with Criminal Trespass. I’m 100% indengent. I’d LOVE to have a job but not one interview call since my car blew it’s motor and I can’t afford to have it replaced to keep the out of town job I had just secured. Just because someone bonds you out DOES NOT mean he or she is not still unable to afford the lawyer of their choosing.

  2. What point is having a job when it comes to being able to afford a lawyer? Sharon Killer pulls down a buck fifty from the state every year, plus another 100k income, presumably from the land she and her daddy are partners in, and she has a net worth of more than 3 million — and SHE can’t afford an attorney to defend her in front of the CJC.

  3. At this point I don’t know if it is happening in every court, but here at Texas Fair Defense Project we have gotten several complaints from Harris County involving exactly this scenario. And even assuming that it’s acceptable policy to make a defendant who is released on bond re-establish indigency (see CCP 26.04(p)), the defendants we’ve talked to haven’t been allowed to present information showing that they are eligible for a court-appointed lawyer — rather. the courts have refused to give them the attorney request form or accept their financial documents but instead have just reset their cases and ordered them to find a job, as if that has anything to do with whether the defendant has the current financial ability to hire a lawyer.

  4. If the person has a job but only makes minimum wage, the judge will keep the appointed lawyer on, or appoint someone. She goes through the number of dependents, the expenses, etc. Michael is right – just because one has a job doesn’t mean one can hire an attorney. But, there is a difference in the cost of an attorney for a misdemeanor, a felony, and what Keller is facing. (I thought she didn’t qualify & even got caught failing to disclose some property she owned.) Anyway, going through the person’s life is part of determine indigency.

    Michael – is your argument that the working people (taxpayers) should pay for the lawyer? That is where the money comes from. Do you want to pay for everyone’s lawyer?

    The point of having a job is that the accused cannot just sit on his or her tuckus & do nothing because they feel too good for most jobs or they don’t want to work. That is the relevancy of having a job.

  5. I was on the State Bar Committee that came up with guidelines that were mostly adopted in the Indigent Defense Act. The two biggest complaints at the time were judges who equated indigency with the inability to make bond, and the different schemes in Harris (i.e. each judge has its own) It doesn’t look like things have changed that much.

    I don’t profess to know what’s like to practice in a big county like Harris. I spent a couple of months there trying a capital murder case years ago, and realized things work differently. I don’t see how anything but bad things can happen when a handful of lawyers get all the appointments in a certain court. Unfortunately, for many lawyers their livelihood goes ahead of the duty to defend their clients. They should never be put in that position though. Far too many judges see their job as protecting the county’s money. I wish I had the answer; but at know at least part of it lies in bringing it out in the open, and having an active criminal defense bar – which I know you do.

  6. I agree with Mark. A court appointed attorney is the attorney of record until removed by written order.(substitution, w/drawal, etc.) What’s wrong with just making the defendant repay the county for the court appointed fees once the case is settled? Oh, yeah, the guy might be found not guilty and/or the case dismiseed and then the county would be SOL for reimbursment.

  7. I would actually go further. The taxpayers should be on the hook for full representation in every criminal case. If the defendant can afford to and decides to hire someone that is fine, but if they want to take their chances with counsel that tax money is paying for tough for taxpayers.

    • And if I want to put people behind bars as I feel lots do deserve I should be willing to pay for it. I find the entire indegency requirement to be a massive government dodge.

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