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Florida Law
Unwilling Public Defenders
Thanks to state cutbacks, more private attorneys can expect to become reluctant public defenders.
 “This case has 382 witnesses and boxes of discovery — and I’m by myself.” — Attorney Gregory Hagopian, sole practitioner [Photo: Alex Stafford] |
Last May, 20-year-old Terry Green and 15 other men were arrested and accused of being members of the Third Shift, a drug-trafficking gang in Manatee County. To avoid a conflict of interest, the public defender’s office could only represent one of the men. An attorney from the local office of the Criminal Conflict and Civil Regional Counsel took the case of another. Ordinarily, private attorneys who sign up to represent defendants in such cases would have handled the rest, but there weren’t enough attorneys on the list. Since 2007, when the state cut the compensation for attorneys willing to take on conflict cases from public defenders, few attorneys have signed up.
That left 12th Circuit Chief Judge Lee Haworth with a problem. The cases against the accused gang members who did not have legal representation could not move forward, so Haworth simply appointed attorneys to the men. For Green, Haworth randomly assigned Bradenton lawyer Gregory Hagopian, a sole practitioner and a former president of the Manatee County Bar Association. But Hagopian didn’t want anything to do with the case. Saying the time spent defending Green would be unfair to his other clients and might also bankrupt his practice, he appealed the appointment, claiming the money he would earn from the state for representing Green would amount to a fraction of the up to $100,000 the work might actually be worth. The appeal was rejected, and Hagopian continues to represent Green. So far, he estimates he has worked 80 hours on the case with potentially many more hours to come.
“This case has 382 witnesses and boxes of discovery — and I’m by myself,” Hagopian says. “I’ve had to spend all these hours defending and doing work on behalf of Mr. Green and then also defend myself from the appointment. It has taken away from my practice.” He adds that it isn’t exactly the best situation for Green, either: “He’s getting a lawyer who didn’t want to represent him.”
While Hagopian’s situation is rare, L.D. Murrell Jr., chairman of The Florida Bar’s criminal law section, expects more attorneys will find themselves in similar circumstances this year, particularly with many public defenders’ offices across the state swamped. Last year, for example, the Miami-Dade Public Defender’s Office stopped taking some felony cases. Miami-Dade Public Defender Bennett Brummer justified the move by saying budget cuts had left his office with too few attorneys to handle the work. Pinellas-Pasco Public Defender Bob Dillinger says budget cuts might force his office to reject some misdemeanor cases.
Murrell says a private attorney would “be a fool” to sign up to take one of those cases, since, in most instances, the most they could hope to be paid would be $2,500. “As a private defense attorney, I can tell you it costs me more to operate my office and stay in business than the justice administration commission is authorized to pay me,” he says. “So why should I sign up to go bankrupt?” Open-ended, potentially lengthy criminal cases aren’t good candidates for pro bono work, either. “I believe in pro bono,” Murrell says, “but I believe in selecting the cases I choose to be involved in.”
The solution? Murrell knows this isn’t a good time to get any extra money from the Legislature, but he says state funding is key. “The judges are between a rock and a hard place,” he says. “I don’t blame the judges. The irony here in my opinion is you can’t blame anybody who works in the criminal justice system. I think the judges are operating in good faith, the prosecutors are operating in good faith and the defense bar is, too. It’s sort of the Legislature that has created the problem by not funding the system.”
