- The Washington Times - Tuesday, March 27, 2007

RICHMOND — Gov. Timothy M. Kaine is proposing expanding legislation to improve pay for lawyers appointed to represent poor people.

Mr. Kaine’s amendment would allow judges to waive caps on court-appointed lawyers’ fees in juvenile court and for representing indigent adults charged with misdemeanors in general district court. Legislation passed by the General Assembly raised the caps across the board but limited the waiver to adult felony cases in circuit court.

Lawmakers will vote on Mr. Kaine’s amendments when they reconvene for the one-day veto override session April 4.

“There is no doubt the state would have been sued without the amendment the governor has requested,” said Steve Benjamin of Richmond, a member of the National Association of Criminal Defense Lawyers’ board of directors.

The association, represented by Washington law firm Covington & Burling, had prepared a lawsuit challenging Virginia’s lowest-in-the-nation fee caps. The lawsuit was put on hold last year to give legislators time to address the problem.

Kaine spokesman Kevin Hall said the threat of a lawsuit had nothing to do with the governor’s action.

“Issues of fairness prompted these amendments,” he said in an e-mail.

Mr. Benjamin said that the legislation passed by the General Assembly, while a vast improvement over the current system, was “fundamentally deficient” because it covered only adult felonies.

“Representation is just as important to a juvenile as to an adult,” he said. “The consequences are every bit as grave; the crimes just as serious.”

He also noted that some misdemeanors are punishable by up to a year in jail — a terrifying prospect for defendants relying on court-appointed lawyers who now are compensated for only the first couple of hours of work on the case.

As amended by the governor, Mr. Benjamin said, the legislation will help Virginia shed its reputation as the state least likely to give indigent defendants a fair shake.

“This is a landmark piece of legislation because it better ensures our criminal-justice system will function reliably,” Mr. Benjamin said.

The bill raises the fee cap from $1,235 to $2,085 for felonies carrying a prison sentence of 20 years to life in prison and from $445 to $600 for lesser felonies. The caps for juveniles and for adult misdemeanors double to $240.

With the governor’s amendment, however, judges would be able to waive caps in any case that warrants higher pay — not just adult felonies.

Mr. Kaine did not propose increasing the $8.2 million in the state budget for paying the higher fees. Instead, that money will be spread thinner.

“There is clearly still not enough money to cover all waivers — everyone concedes that,” Mr. Hall said. “This is just a start on increasing compensation and providing relief from the caps.”

Mr. Benjamin said data collected by the Virginia Supreme Court, which will administer the funds, will give legislators and other state officials an idea of how much money they need to allocate in the future to cover all judicially approved waivers.

“Everyone involved with this is dealing in good faith,” said Mr. Benjamin, who praised Mr. Kaine, Attorney General Bob McDonnell and Sen. Kenneth W. Stolle, Virginia Beach Republican and sponsor of the legislation, for fixing what he described as a broken system.


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