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| Dedicated to the Right to Counsel in Louisiana | April 15, 1998 Vol 6, No. 3 |
COURT RULES ID PROGRAM MUST HELP RETAINED COUNSEL
(State v Jones 97 2593 March 4, 1998)
The second step in the process of formulating rules for use of IDB funds in hybrid cases
has been taken. Justice Traylor writes for the Supreme Court in State v Jones that a
defendant "having private counsel provided from a collateral source, may still be
entitled to State funding for auxilairy services provided he can meet the requirements of
Touchet."
Touchet (93 2839, La. 9/6/94, 642 So.2d 1213) held that indigents are entitled to a grant
of experts and others in Capital Cases consistent with guarantees of a fair trial.
The Court also reversed the Trial Court, which had removed private counsel after a hearing
in which the client had been determined indigent. The Court found that since the 6th
Amendment and the Louisiana Constitution (Art. 1 Sec. 13) provide for a right to counsel
of one's choice, the Trial Court could not remove counsel merely because the person is
indigent. A panel of the 5th Circuit had affirmed, 2 to 1.
While the Court would not address concerns regarding private counsel retained by a client
who becomes indigent as a result of the retainer, the Court did suggest that such facts
would be treated differently. ". . in such a case of potential abuse, the local
indigent defense board could challenge the defendant's indigent status, and if successful,
the trial court would declare defendant no longer indigent and thus ineligible for State
funded services."
This may be a bit optimistic, given the admittedly overwhelming power of the Right to
Counsel. It is not at all clear that the law would subsume that right to concerns for the
financial viability of the local IDB.
As to the second lawyer, the Court found "no reasoning nor find authority for the
proposition that an indigent defendant is entitled to two State-funded attorneys, but an
indigent defendant who has retained counsel from a collateral source is not entitled to a
second counsel."
The Court buys the "we saved you money" argument of the private lawyer, noting:
"It would therefore defy logic to punish such a defendant by refusing to appoint
co-counsel because he has, in effect, saved IDB funds through retention of private
counsel."
Equities regarding the variance in compensation are not considered. The decision clears
the way for more hybrid cases, in which a private lawyer gets a substantial fee from a
collateral source and then substantial assistance from the experts in the PD office.
The decision leaves for another day the question of what happens when the middle class
defendant spends all his money to hire a lawyer. Is there a point at which the
reasonableness of the fee will give rise to some protection for the IDB? Or will there
simply be a rule that the choice of counsel primes every other interest?
Procedures are tightening up at the Indigent Defense Supplemental Assistance Board.
Districts must file their quarterly financial and caseload reports as a pre-requisite for
District Assistance Funds.
The Supreme Court has recognized rulemaking authority in the State Board (R.S. 15:151.2
(E)) and the Board is considering draft rules at this time. Under this statutory
authority, the State has the power to mandate certain requirements at the District level.