TN Supreme Court Proposes 'Gun for Hire' Arrangement for Indigent Legal Cases

Currently, judges appoint attorneys in indigent cases when the public defender's office is unable to provide representation, either because of a conflict of interest, or too heavy of a caseload. These attorneys then bill the state for services rendered.

The court's proposal has critics up in arms, including attorneys, judges and both state and national legal organizations. They allege that the fixed fee arrangement will not only diminish the quality of legal services provided, but will take work away from attorneys and usurp the authority of local judges.


Laura Click, spokeswoman for the state courts, was quoted as saying in the August 31st tennessean.com article of the proposed change, ''TN lawyers may soon bid to defend poor'': ''With the economy the way it is, we're just trying to be good stewards of taxpayer dollars.'' In addition, Click explained the fixed fee contracts would only be used for two types of cases - those dealing with the non-payment of child support, and determining if an individual should be involuntarily committed to a mental health institution.

In support of the fixed fee arrangement, Click was also quoted as saying in the tennessean.com article: ''There are situations where it does and doesn't make sense. We recognize that. The idea is that when it does make sense, we'd like to put it in place to streamline the process.''

However, specific language addressing the two types of cases is not included in the proposal. Because of this, attorneys are concerned that the fixed fee arrangement could extend to other types of cases, which would bar some attorneys from taking on court-appointed cases, which is a mainstay for some practices.

Nashville attorney James Rose was quoted as saying in the tennessean.com article: ''They're giving all the discretion to a centralized government agency. It's a slap in the face to a lot of attorneys who have been doing this for a lot longer than me.''

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

''Because the lawyer will be paid the same amount, no matter how much or little he works on each case, it is in the lawyer's personal interest to devote as little time as possible to each appointed case, pocketing the fixed fee and using his time to do other more lucrative private work,'' David J. Carroll of the National Legal Aid & Defender Association was quoted as having written in a letter to the Supreme Court, per the tennessean.com article.

While these are all legitimate arguments, (though Carroll's opinion reads more like an accusation), it's difficult, if not impossible, to take sides against capitalism, and the powerful concept of laissez faire - especially when hundreds of years of history exist as a testament to their success.

Allowing lawyers to bid for work would enable competition, and drive down costs. This would open up the market to a new pool of talent, including young attorneys seeking experience, and would foster innovation as new means of winning business proliferated. In the end, just as many arguments could be made in favor of the proposal as against it, and the Tennessee Supreme Court, at the end of the day, would achieve its objectives: provide the best service at the lowest cost - a win-win for clients, and taxpayers.