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VOL. 35 | NO. 34 | Friday, August 26, 2011




Tenn. Supreme Court considers bidding system

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NASHVILLE (AP) — The Tennessee Supreme Court is considering having lawyers bid on representing the poor in certain types of cases.

As the demand for taxpayer-funded representation grows, the court is considering a draft amendment to its court rules to allow the Administrative Office of the Courts to solicit bids to represent indigent persons for a fixed fee

While the aim is to contain costs, the result could harm defenses, according to Laura Dykes, a past president of the Tennessee Association of Criminal Defense Lawyers.

"We think it will compromise the quality of representation that indigent defendants get," said Dykes, an assistant public defender in Nashville.

The cost of indigent representation has climbed from $19.9 million in fiscal 2004-05 to $37.5 million currently.

Money from the indigent defense fund is paid to private attorneys who are appointed by judges to represent defendants who can't afford an attorney. The attorneys are appointed when a public defender isn't available or eligible. Money from the fund is also used for representing children and parents in child welfare cases, paying for expert witnesses and other costs.

"With the economy the way it is, we're just trying to be good stewards of taxpayer dollars," said Laura Click, spokeswoman for the court administrative office.

Click said the Supreme Court is considering contract legal representation in only two types of cases. Those would be contempt cases from nonpayment of child support and hearings on whether a person should be committed involuntarily to a mental health institution.

"There are situations where it does and doesn't make sense," Click said. "We recognize that. The idea is that when it does make sense, we'd like to put it in place to streamline the process."

The state legislature asked the court to look for savings after 126,000 claims were submitted for indigent defense last year.

Click said the court is taking comments on the proposal though Thursday. The court could adopt the plan, change it or reject it.

The current proposal does not limit bidding to the cases being considered, however, and some attorneys say it could be a harbinger of other flat-fee representation in the future.

"The problem is, it's just impossible to know," said Nashville attorney James Rose.

Critics of the plan also say it removes decisions from trial court judges.

"I certainly think it's judges' discretion to appoint the attorney that they feel has the best qualifications to provide competent and zealous representation," said David Howard, a Gallatin attorney and magistrate in the Sumner County Juvenile Court. "I prefer to appoint attorneys who I know will do a good job."

In a letter responding to the proposal, Clarksville lawyer Elizabeth Pugh suggested another cost-saving idea, noting her firm had been appointed to represent the son of a couple who made $100,000 per year.

"The solution is to stop appointing everyone a free lawyer," Pugh said.

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