Friday, February 23, 2007
FAIR PAYMENT FOR COURT APPOINTED LAWYERS
South Carolina Bar President Bradish J. Waring published the following letter in several newspapers. But, while we do not dispute that many attorneys are underpaid and voluntarily contribute to society, we also note that we are aware of an instance wherein the "losing party" in a family case was ordered to pay his ex-wife's "reasonable" attorney's $450 per hour. The award was reversed on Appeal partially because the South Carolina Court of Appeals found that there was no evidential support in the record to support the lower Court's decision; in other words, the Court of Appeals determined that "the fix was in" on the lower Court level.
The bottom line is that Mr. Waring and some of his friends may have some legitimate complaints. However, unless and until some fee caps are put in place across the board and the word "reasonable" is better defined, we say let things stay as they are.
________________________________________________________________________________
I am obligated to respond to recently published letters in order to dispel misconceptions regarding the court appointment funding crisis in South Carolina.
Particularly egregious is the suggestion that South Carolina lawyers do not hold in the highest regard the lawyers' oath and only begrudgingly provide pro bono services to the indigent. That notion is ludicrous.
The legal profession has historically risen to the defense of the disadvantaged to preserve the interests of justice in society, and this state's lawyers remain true to their calling.
At issue is the real-life impact of the operation of Appellate Court Rule 608, the mechanism by which two-thirds of the practicing lawyers in the state are appointed as counsel or guardians, irrespective of lack of experience or expertise in areas of law that are of critical importance to the citizens involved. For example, lawyers without courtroom experience are routinely assigned to matters as critical as whether someone's parental rights should be terminated. This has resulted in serious inefficiencies in our court system.
Additionally, because little or no funds are allocated to support these appointments, or the costs associated with handling these serious cases, the application of the rule is unconstitutional in several respects. Examples are taking of property without compensation and denial of equal protection. Lawyers are funding filing fees, expert witness fees, deposition fees, etc., out of their own pockets. The rule also places the livelihood of some rural and solo practitioners at risk when they carry open overwhelming case loads on assigned clients, some for as long as 18 years.
South Carolina Bar President Bradish J. Waring published the following letter in several newspapers. But, while we do not dispute that many attorneys are underpaid and voluntarily contribute to society, we also note that we are aware of an instance wherein the "losing party" in a family case was ordered to pay his ex-wife's "reasonable" attorney's $450 per hour. The award was reversed on Appeal partially because the South Carolina Court of Appeals found that there was no evidential support in the record to support the lower Court's decision; in other words, the Court of Appeals determined that "the fix was in" on the lower Court level.
The bottom line is that Mr. Waring and some of his friends may have some legitimate complaints. However, unless and until some fee caps are put in place across the board and the word "reasonable" is better defined, we say let things stay as they are.
________________________________________________________________________________
I am obligated to respond to recently published letters in order to dispel misconceptions regarding the court appointment funding crisis in South Carolina.
Particularly egregious is the suggestion that South Carolina lawyers do not hold in the highest regard the lawyers' oath and only begrudgingly provide pro bono services to the indigent. That notion is ludicrous.
The legal profession has historically risen to the defense of the disadvantaged to preserve the interests of justice in society, and this state's lawyers remain true to their calling.
At issue is the real-life impact of the operation of Appellate Court Rule 608, the mechanism by which two-thirds of the practicing lawyers in the state are appointed as counsel or guardians, irrespective of lack of experience or expertise in areas of law that are of critical importance to the citizens involved. For example, lawyers without courtroom experience are routinely assigned to matters as critical as whether someone's parental rights should be terminated. This has resulted in serious inefficiencies in our court system.
Additionally, because little or no funds are allocated to support these appointments, or the costs associated with handling these serious cases, the application of the rule is unconstitutional in several respects. Examples are taking of property without compensation and denial of equal protection. Lawyers are funding filing fees, expert witness fees, deposition fees, etc., out of their own pockets. The rule also places the livelihood of some rural and solo practitioners at risk when they carry open overwhelming case loads on assigned clients, some for as long as 18 years.
Uncompensated appointment systems have been ruled unconstitutional in 11 states. In 1994, our own Supreme Court recognized that, at a certain point, excessive civil appointments may constitute a taking. We believe that point has come.
At the request of the South Carolina Bar, the S.C. Supreme Court recently created the Access to Justice Commission to expand access to civil legal representation to citizens of low and modest means. By improving the present court appointment system, more lawyers will have the opportunity to give back through pro bono service in a manner consistent with their professional training and law practices.
No person, at the risk of loss of a license, should be compelled to provide free services to the point that the ability to earn a livelihood is at risk. Surely, on this simple truth, we can agree. It's time for South Carolina to change the system for the betterment of its citizens.
BRADISH J. WARING
President, South Carolina Bar
205 King St.
