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New fee rules rile South Florida defense lawyers

Accused of murdering his stepbrother in North Miami-Dade, Mordecai Ray faced life in prison but could not afford an attorney. So the judge appointed a lawyer for him, Thomas Cobitz.After more than two years, nearly 334 hours of work and $25,477.50 in legal bills to taxpayers, Cobitz delivered: In November 2010 a jury acquitted Ray.

But under new rules set to go into place July 1, a lawyer like Cobitz might only receive $2,000 for the same case — or a paltry $5.99 an hour. That’s well under Florida’s $7.67-an-hour minimum wage.

A change in the rule in how court-appointed criminal defense lawyers are paid, slipped into a bill by lawmakers in March, was designed to curb growing legal fees paid by the state. But the bill has sparked a furor among attorneys who say the poor, who are guaranteed the right to effective legal representation, will suffer because few quality lawyers will take their cases.

“It’s fundamentally unfair to make a lawyer choose between his own bottom line and the freedom of his client,” said Cobitz, who like many of his colleagues is vowing not to sign up for the new appointment system.

The rule change will create a voluntary pool of lawyers, dubbed the “Limited Registry,” that get first crack at felony appointments to represent certain indigent clients. The new rule does not apply to death penalty or racketeering cases.

The Florida Association of Criminal Defense Lawyers, including its Miami chapter, is preparing to challenge the new rule in court. The group is also asking members to voice their complaints to Miami-Dade’s chief judge.

In the United States, everyone accused of a crime is entitled to legal representation. In Miami-Dade, here’s how it works for those who can’t afford a lawyer:

The Miami-Dade Public Defender’s Office is appointed to represent anyone accused of a felony who can’t afford the hire a lawyer — but often, the office must “conflict” off a case because it already represents a co-defendant or a witness in the case.

In those cases, the state-funded Office of Criminal Conflict and Civil Regional Counsel — created in 2007 to lower the costs of legal bills from court-appointed private lawyers — takes the case.

But the Regional office often conflicts off a case too. If that happens, a poor defendant is appointed a private lawyer from a pool of attorneys who have signed up to accept taxpayer-funded cases.

The lawyer is selected from the pool at random in a system known around courthouses as “The Wheel.”

These court-appointed lawyers are paid certain flat rates but can also ask the courts to extend capped rates — up to a maximum of $75 an hour. The lawyers are paid only after the case is concluded, which in complex cases can take years.

“None of us are getting rich on these cases now,” said Miami lawyer Carmen Vizcaino, who is leading a FACDL committee examining the registry issue. “I take these cases, and many of us take these cases, because we have a calling to defend the poor and we love doing this type of work.”

But Senate Bill 1960, passed in March, created the “limited registry” pool of lawyers that will accept flat fees for most cases. The catch: Lawyers cannot ask for additional money.

A third-degree felony, punishable by up to five years in prison, would cost taxpayers just $750. The fees increase with the severity of the crime, with a first-degree felony case calling for a mandatory life term case fetching $2,500.

The reason for the change, lawmakers said, is that the amount of additional taxpayer money being paid to private lawyers was regularly increasing.

In the fiscal year ending in 2009, according to a Legislative analysis, the state overspent by $1 million the amount it pays to private defense lawyers. By the end of the 2009-10 fiscal year, it had overspent by $3.8 million.

Through the first 11 months of this fiscal year, which ends June 30, the state paid $6.5 million over its original budget of $3 million, records show.

State Sen. Ellyn Bogdanoff, the chair of the budget subcommittee on criminal and civil justice appropriations, said that keeping conflict legal costs down is key because overruns are taken from the court budget itself.

Bogdanoff, a Fort Lauderdale Republican, acknowledged that $2,500 for a first-degree murder case is “ridiculous,” but said the defense bar needs to present lawmakers a better solution to keeping conflict legal costs down.

“We have a huge problem and I honestly don’t know how to fix it,” she said. “It’s really going to be incumbent on defense attorneys to come up with a better plan.”

So what happens if no one signs up to be part of the pool of lawyers that accept the flat rates?

The current group of lawyers, which in Miami-Dade equals 150 attorneys, will still be appointed to represent the poor, but only after the system has given the limited registry lawyers a shot.

In an uncertain economy, the FACDL expects some lawyers to nevertheless sign up for the limited registry anyway, aiming to earn money through volume and plea bargaining cases quickly.

That worries some critics, who say those lawyers will shortchange their clients on the amount of time they spend on their cases.

“In any budgetary crisis, even when constitutional implications are involved, it creates the possibility that there will be some opportunists who may take advantage of the situation — to the detriment of their clients,” said Jude M. Faccidomo, the president of FACDL-Miami.