News and Information
September 27, 2007

Lawyers Slow to Request Fee-Cap Waivers


Waivers Sought in Only 205 of 40,000 Vouchers


Court-appointed attorneys have been slow to apply for new waivers of Virginia’s fee caps in criminal cases pursuant to Virginia Code Sec. 19.2-163. Hundreds of attorneys also have used the wrong form, or filled the right form out incorrectly, when they applied for payment—whether they requested a waiver or not.

In the first three months since July 1, when the waivers went into effect, only slightly more than two hundred waiver requests were among the almost forty thousand vouchers for criminal court-appointed work processed by the Supreme Court of Virginia’s Office of the Executive Secretary, which administers the waiver program. Of the waivers applied for as of September 26, 186 were granted some or all of the amounts they had requested. Of $40,410 in waiver fees requested, $34,069 was granted.

The response is frustrating to those who have worked for many years to convince the General Assembly to pay higher fees to court-appointed attorneys. Supporters of higher fees hope that the $8.2 million in waivers approved by the 2007 legislature are a stepping stone toward eliminating the fee caps altogether.

However, unless court-appointed attorneys accurately complete the revised FORM DC-40, LIST OF ALLOWANCES, and report actual time spent in and out of court per charge, the Supreme Court of Virginia will not have the data, and the supporters will not be able to prove their long-held premise that lawyers are putting in many more hours than they are paid for when defending the poor.

Many more fee vouchers—4,270—were returned to lawyers because of errors that included:

• Lawyers used the old form that is no longer in effect instead of using the revised FORM DC-40, LIST OF ALLOWANCES (REVISED 7/07).
• Many attorneys did not indicate the actual time spent in and out of court for each charge.
• Hundreds failed to include their Virginia State Bar member numbers – a requirement on the new form.

Because the returned vouchers were not processed, the Court does not know if they included waiver requests.

Betsy Wells Edwards of the Virginia Fair Trial Project is working to identify the reasons lawyers do not seem to be jumping at the chance to increase their pay for court-appointed clients.

“Getting waivers approved and partially funded was a major public policy breakthrough,??? Edwards said. “The legislature will be closely monitoring the requests for and paying out of waivers.

“It is very disheartening and potentially damaging for so few court-appointed lawyers to have sought waivers. If we are to succeed in upcoming sessions in getting more money for indigent defense in Virginia, it is imperative that court-appointed lawyers apply for waivers.???

One hypothesis to account for the slow response is that filling out the forms, which include recording actual time spent per charge, is a cultural change for lawyers who had become used to receiving the same low fee regardless of the time and effort required.

Edwards said she plans to work with criminal bar associations and other groups to present training sessions for possible continuing legal education credit.

The pressure to get the numbers in is building: The Supreme Court must report this fall on the early response, to General Assembly money committees. Proponents would like to use this and future quarterly reports from the Court to document the need for continued or additional funding during the 2008 and future General Assembly sessions. To do so, accurate and complete reporting by attorneys on the DC-40 is essential.

As lawyers adjust to the new required level of documentation, Court officials emphasize that timekeeping need not be complicated. For example, if a lawyer has a client who faces three charges, calculating time per charge can be as simple as dividing the total time spent on the client by three and listing that amount for each charge.

Links to more information, forms, and a training video for waivers is posted on the Virginia’s Judicial System Web site, www.courts.state.va.us.

Updated: Sep 27, 2007