Ex Parte Shurling – no prior approval, no attorney fees

In Ex Parte Shurling, decided April 9, 2014, the S.C. Supreme Court denied approximately $30,000.00 in attorney fees to two attorneys who were appointed to represent a client charged with murder, assault with intent to kill, criminal conspiracy, possession of a weapon during a violent crime, and possession of marijuana, because the attorneys did not obtain an order pre-approving the amount of their attorney fees.

South Carolina authorizes attorney fees in the amount of $40/hour out of court and $60/hour in court, up to a total of $3500.00 for appointed felony cases, including murder.  The same statute authorizes $500.00 in expenses, only if it is pre-approved.  This may seem like a lot of money to a layperson, but the truth is most law offices lose money at $40.00 an hour, taking into consideration their overhead, office staff, expenses, and paying clients whose cases they are not working on, or whose cases they miss completely because they are in a week long murder trial.

In this case, the attorney obtained a funding order that pre-authorized attorney fees of $100.00/hour (closer to a reasonable rate and closer to what federal courts pay), up to $15,000.00.  She just did not go back and get another funding order to increase the amount once she had reached the $15,000.00 limit.

On the one hand, all they had to do was go back and get a new order increasing the amount of attorney fees allowed.  Of course, one would have to keep careful track of their hours, anticipate when the limit is about to be reached, and then stop work on the case until a judge authorizes the increase.  On the other hand, if the amount of work that went into defending the client through trial was reasonable, then it was reasonable.  Its reasonableness doesn’t depend on whether the attorney has the foresight to have a judge pre-approve the attorney fees.

Denying an attorney payment for work they have already completed, based on their failure to get pre-approval, seems kind of shitty, to put it bluntly.  The state needs money, so indigent defense uses any excuse they can find to not pay the attorneys who work defending indigent clients.  Our state does not value attorneys who defend indigents.  Our legislature does not value them.  Our courts do not value them.  Our Office of Indigent Defense does not value attorneys who defend indigents.  Or the rights of indigents, for that matter.

Last year, the Commission on Indigent Defense moved to a system of conflict attorneys to save the state even more money.  Attorneys who volunteer for the conflict attorney contracts will get appointed cases at a flat rate of $900 per case, no matter the type case – drug possession, drug trafficking, armed robbery, murder, plea or trial, a flat rate of $900 per case.  How many attorneys can afford to shut down their office and try a murder case for $900?

We are guaranteed the right to counsel, not the right to counsel of our choice and not the right to the best counsel.  If we are asking the state to pay for our defense, we take what they give us, right?  Of course, we are guaranteed the right to effective assistance of counsel.  If we are convicted and we think we got the shaft, we can then file an action for post-conviction relief, alleging ineffective assistance of counsel, and we will get another appointed attorney to handle our PCR claim, one who has volunteered for a contract to handle PCR’s for a per-case flat rate.


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