Rest in Peace, Criminal Defense “Gray Panels”

Until fairly recently in the history of the United States, the private Bar handled the criminal defense of indigent defendants in an unorganized way largely through appointments of attorneys by the bench to represent unrepresented persons. The Supreme Court’s decision of Gideon v. Wainwright upheld the right of indigent persons to receive legal counsel in criminal cases as a realization of their Sixth Amendment right to counsel; the methods of implementing the rights under Gideon differed from state to state and within states. Some states established local or state-wide Public Defender offices to provide defendants such legal counsel, while other jurisdictions relied in part or in whole upon the private Bar to provide such representation, either pro bono or under contract. The history of the delivery of such services is a bit more complex than the foregoing but this is a blog post, not a treatise.

Many Bar Associations additionally established panels of attorneys to assist defendants who, though not indigent, found it particularly difficult to retain an attorney by falling the “gray” zone between being fully able to pay and being truly indigent. These panels, sometimes called “Gray Panels” or “Low-fee panels”, were prevalent in many Maryland’s local voluntary Bar associations and provided legal services as sharply reduced, but non-zero, fees. Many newer attorneys developed their skills as Gray Panel attorneys, ideally under appropriate mentorship. The Gray Panel defendant did not become a public charge of the government, the Public Defender’s budgets were not strained or burdened with the representation of the non-indigent and the private Bar provided a “low bono” pro bono service to the public at large while still developing their skills of newer attorneys.

Rest in Peace, Maryland Gray Panels. You deserved a better funeral than you got.

The decision of the Court of Appeals of Maryland in DeWolfe v. Richmond appears to have signaled the death knell of the Gray Panels for most practical purposes. While it is unlikely that the Court, in ruling that persons facing bail reviews have a right to counsel by the Public Defender, intended to kill the Gray Panels, the practical result has been the killing of the Gray Panels. The Maryland Office of the Public Defender has, in the aftermath of that decision, essentially stopped screening defendants for indigency and accordingly has stopped making referrals for the many persons who fall between comfortable affluence and poverty – i.e. most of us. The OPD must now in practice take all comers not self-evidently of means, accepting an affidavit of indigency that they may not verify financially as it did previously.

A number of evils have occurred or been aggravated in part as a result of the de-facto State takeover of a large sector of the criminal defense work once performed, for full fee or reduced fee, by the private Gray Panel Bar. One is the strain upon the public fisc, with OPD budgets already near the breaking point even before this decision. Another is the long-term deprivation to the Bar as a whole of the skill-set development of criminal defense attorneys not employed by the Office of the Public Defender. Another is the injury to the right of counsel of actual, non-fraudulent indigent defendants who are not committing perjury when they swear that they are indigent; those persons must compete unfairly for the limited resources of OPD attorneys occupied with the defense of the increasingly non-indigent defendants who are merely reluctant, rather than unable, to hire private counsel. Another evil, perhaps the least of the evils, is the economic strain on private attorneys who must now compete unfairly against the State for their livelihoods.

It is demoralizing to handle all of the responsibilities of running a private practice while knowing that the State is providing for free a competitive substitute for services which one’s own hard-built law practice provides for hire – for healthy, employed persons who could pay some fee, but would rather perjure themselves on an indigency form and use the taxpayers’ lawyer. Certainly some fraction of the OPD clientele is in fact indigent; their constitutional right to effective counsel at no charge is impeded through the perjuring free-riders competing for their public defenders’ attention, focus and professional time. Private attorneys are under a lot of pressure to provide pro bono services; pro bono agencies, government functionaries and the most sanctimonious among the Bar Association leadership remind us of our duty to work for free often. Yet we who must compete with the largest pro bono firm eventually must, you know, pay bills which the massive pro bono criminal defense firm that is the OPD pays with – taxpayer money (perversely, funded in tiny part by income taxes on inter alia private attorneys.)

A defacto socialization of a large part of professional criminal defense work should require an act of the General Assembly deciding that the private Bar shall be a luxury item for the Lindsay Lohans of Maryland, but shall be a public welfare benefit for all other defendants. The Public Defender could have its budget multiplied by a factor of, say, 5 or 6; it would become the largest law firm in many counties in Maryland after the State’s Attorney’s Office. Maryland could do to criminal defense what Britain did to the private practice of medicine – make it largely publicly administered and free on delivery but lawful to provide privately for the wealthy out-of-pocket paying patients – but a Euro-socialist approach to legal services should result from an act of the General Assembly, not from the unintended fallout of a court case.

That last comment may shock you as excessive, but I hear from my fellow members of the Bar often. Almost every criminal defense attorney I know who isn’t employed by the OPD is hurting. Attorneys have fired their advertising companies or even owe them back balances. The few who may not be hurting quite as much advertise grossly slashed fees so low that one wonders how they can provide quality representation, pay their expenses and pay their taxes on their fees; they have to be hurting themselves or their clients (or both.)

Clients should not be overcharged, of course; we owe it to clients ethically not to charge more than a reasonable fee. Dramatically less than a reasonable fee, however, if undercharged in every case (as opposed to the reasonable case-by-case Gray Panel reduction) leads to a high-volume, low-budget approach to law practice that is inconsistent with long-term professional standards. Put it this way: would you let a lowball, price-slashing dentist drill your child’s teeth, or be happy that a “blue-light special” engineer designs and builds a dam next to your farm? “My Cousin Vinny” didn’t charge his cousin much, either.

The result has been that the pool of quality representation in the private Bar will shrink somewhat, leading non-indigent clients with fewer long-term choices when they need and want a private attorney when the talent pool of attorneys leaves the private defense Bar unreplaced by others or even, in this economy, leaves the practice of law altogether. The Office of the Public Defender will approach “monopsony” – becoming step by step not the a dominant provider but a dominant consumer of legal talent, rendering the rest of the legal market less elastic and less healthy for paying clients. It will never go all the way, of course; the purely private criminal defense Bar will never be eradicated, just rendered smaller, thinner and less committed to quality criminal defense – and who, with the OPD as a mighty if unenthusiastic competitor, can blame them?

If you are union member with full-time benefits, you are almost certainly not truly “indigent”, though you perhaps should get a meaningful discount from a private attorney if times are tight. If you are an independent sex worker with enough money coming in to afford the 4-star hotel room where you got stung, you probably have enough money to pay an attorney a substantially reduced fee. If you can afford the SUV in which you got charged with a DUI, you are probably not whom the Supreme Court considered as eligible for a taxpayer-funded defense in Gideon; maybe a private lawyer should chop her fee by 2/3 and provide you services for hire. If you are a Marylander, you should ask why your taxes have gone up and will go up in the future when a) private attorneys exist to private services to the clients whose bills your taxes help pay and b) private attorneys will be less inclined to persevere in criminal defense and stay sharp if they have to compete with the government’s free services, giving you and your family fewer choices in the long term if you or they get charged with a jailable offense.

RIP Gray Panels; apparently we hardly knew ye.

Posted in All

Leave a Reply

Your email address will not be published. Required fields are marked *