Hagopian v. Justice Administrative Com'n
| Decision Date | 12 August 2009 |
| Docket Number | No. 2D08-5077.,2D08-5077. |
| Citation | 18 So.3d 625 |
| Parties | Gregory HAGOPIAN, Petitioner, v. JUSTICE ADMINISTRATIVE COMMISSION, Terry Green, and State of Florida, Respondents. |
| Court | Florida District Court of Appeals |
D. Todd Doss, Lake City, for Petitioner.
Stephen M. Presnell, General Counsel, and Christian D. Lake, Assistant General Counsel, Tallahassee, for Respondent the Justice Administrative Commission.
Kevin T. Beck and Todd A. Foster of Cohen, Jayson & Foster, P.A., Tampa, for Respondent Terry Green.
Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent the State of Florida.
Donnie Murrell, West Palm Beach, for Amicus Curiae the Criminal Law Section of the Florida Bar.
Larry G. Turner of Turner & Hodge, LLP, and Sonya Rudenstine, Gainesville, for Amicus Curiae the Florida Association of Criminal Defense Lawyers.
Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for Amicus Curiae the Florida Association for Women Lawyers.
Randall C. Marshall and Maria Kayanan, Miami, for Amicus Curiae the American Civil Liberties Union of Florida.
Gregory Hagopian, a member of The Florida Bar, petitions this court for a writ of certiorari1 to quash a circuit court order denying his motion to withdraw as counsel for Terry Green in a complex prosecution under the Florida RICO (Racketeer Influenced and Corrupt Organization) Act, sections 895.01-.06, Florida Statutes (2008). Because Mr. Hagopian established grounds for withdrawal from the representation in accordance with rule 4-6.2, Rules Regulating The Florida Bar, we grant the petition and quash the circuit court's order.
In an effort to combat gang activity in Manatee County, the Statewide Prosecutor began charging persons alleged to be gang members with the offense of racketeering. Terry Green was one of the persons so charged. In 2008, an information was filed in the Manatee County Circuit Court charging Mr. Green and eleven codefendants with one count of racketeering and one count of conspiracy to commit racketeering. The circuit court appointed the public defender to represent one of Mr. Green's codefendants and appointed the five Manatee County attorneys whose names appeared on the registry list maintained by the clerk of the circuit court to represent five more of the codefendants. The circuit court could not appoint the Office of Criminal Conflict and Civil Regional Counsel to represent Mr. Green or any of his codefendants because of a conflict of interest. As a result of the shortage of available attorneys to represent the remaining defendants in Mr. Green's case and similar cases, the circuit court created an "Involuntary Appointment List" and began appointing attorneys whose names were placed on the Involuntary Appointment List to represent Mr. Green and other codefendants. The first two attorneys involuntarily appointed to represent Mr. Green were granted leave to withdraw because they lacked the requisite experience. The circuit court then appointed Mr. Hagopian—a sole practitioner—from the Involuntary Appointment List to represent Mr. Green. Mr. Hagopian moved to withdraw from Mr. Green's case, but the circuit court denied his motion. Mr. Hagopian now seeks review by certiorari of the order denying his motion to withdraw.
Some familiarity with chapter 2007-62, Laws of Florida, is necessary to understand the facts of this case. Chapter 2007-62 "creat[ed] a revamped system of court-appointed counsel to represent indigent defendants primarily in those cases in which the public defender has a conflict." Crist v. Fla. Ass'n of Criminal Def. Lawyers, Inc., 978 So.2d 134, 137 (Fla.2008). To this end, chapter 2007-62 established five Offices of Criminal Conflict and Civil Regional Counsel (the OCCCRC). § 27.511(1), Fla. Stat. (2007); Crist, 978 So.2d at 137. As was the case before chapter 2007-62, the public defender in each circuit has primary responsibility for representing indigent persons under arrest for, or charged with, a felony and in certain other matters. § 27.51(1); Crist, 978 So.2d at 138. If the public defender is unable to represent an indigent person because of a conflict of interest, the new system requires that the OCCCRC be appointed to provide legal services to that person. § 27.511(5); Crist, 978 So.2d at 138. If the OCCCRC is unable to provide representation because of a conflict of interest, then the court is required to appoint private counsel from a registry of individual attorneys. § 27.40(2); Crist, 978 So.2d at 138.
Chapter 2007-62 also made several major changes to the manner in which private counsel are compensated for their services on behalf of indigent clients.2 First, chapter 2007-62 established a new flat fee system. Section 27.5304(5) provides in pertinent part:
The compensation for representation in a criminal proceeding shall not exceed the following:
(a) 1. For misdemeanors and juveniles represented at the trial level: $1,000.
2. For noncapital, nonlife felonies represented at the trial level: $2,500.
3. For life felonies represented at the trial level: $3,000.
4. For capital cases represented at the trial level: $15,000. For purposes of this subparagraph, a "capital case" is any offense for which the potential sentence is death and the state has not waived seeking the death penalty.
5. For representation on appeal: $2,000.
This flat fee schedule obviously provides minimal compensation in cases that prove to be complicated or time-consuming for appointed counsel.
Second, chapter 2007-62 recognized that it might be necessary to exceed the statutory maximums "on rare occasions" in cases "that require[ ] extraordinary and unusual effort." § 27.5304(12). However, chapter 2007-62 established complicated and time-consuming procedures for obtaining a fee in excess of the statutory maximum. These procedures include prior notice to the Justice Administrative Commission (JAC), an opportunity for the JAC to review and object to the proposed billing, the filing of an appropriate motion and a hearing before the chief judge of the circuit or a designee. § 27.5304(12)(a). At the hearing, the chief judge or designee is directed to "consider criteria such as the number of witnesses, the complexity of the factual and legal issues, and the length of trial." § 27.5304(12)(b)(1). By itself, a trial does not "constitute competent[,] substantial evidence of an extraordinary and unusual effort." Id. In criminal cases, fees exceeding the statutory maximums "may not be granted if the number of work hours does not exceed 75 or the number of the state's witnesses deposed does not exceed 20." Id.
Furthermore, even if the chief judge or designee determines that the case required counsel to make extraordinary and unusual efforts, the compensation authorized under chapter 2007-62 is limited to twice the flat fee, unless the chief judge or designee determines that such an amount would be confiscatory, in which case the chief judge or designee may order compensation at a maximum hourly rate of $75 for noncapital cases and $100 for capital cases. § 27.5304(12)(d). We note that the maximum hourly rates of $75 for noncapital cases and $100 for capital cases are substantially below market rates for similar services.3
Third, chapter 2007-62 eliminated interim billing. Under prior law, an attorney could request a judicial determination that a matter was "extraordinary and unusual" while the case was pending. If so, counsel's services would be eligible for billing at an hourly rate, and the JAC could pay the attorney as the case progressed, usually at six-month intervals. § 27.5304(2), (10), Fla. Stat. (2006). Under chapter 2007-62, however, court-appointed counsel must not only wait until final disposition of the case to be paid but must also wait until final disposition to learn if payment for his or her services will qualify for the hourly rate. See § 27.5304(3), (12)(d).
The circuit court described the effect of the changes made by chapter 2007-62 in the compensation system on the criminal defense bar as follows:
Since the typical "extraordinary and unusual" case can be active for several months, if not years, and routinely consume hundreds of hours of professional time, the last sentence of section 27.5304(3) has proven to be an effective disincentive for the private bar. Few criminal defense lawyers are willing to risk the economic burden such an appointment would impose on their financial security, and gamble they will get fair compensation at the tail end of litigation.
These uncertainties about payment led to a substantial reduction in the number of attorneys in Manatee County willing to accept appointments to criminal cases under a JAC contract. In May 2007, when the Act went into effect, there were approximately fifteen attorneys practicing in Manatee County on the JAC registry list. A little over one year later, there were only five such attorneys. Of the five attorneys remaining on the JAC registry list, two attorneys declined to handle anything more serious than a second-degree felony. This left only three attorneys on the list who were available to defend persons accused of first-degree felonies or other more serious crimes.
While these changes to the system for paying court-appointed private counsel in criminal cases were occurring, law enforcement agencies were initiating aggressive strategies to target the criminal activities of street gangs in Manatee County. These aggressive strategies led to a number of individual arrests. However, according to the circuit court, the filing of two multidefendant cases was the factor that "had the most profound impact to date on the efficiency of circuit court operations." The first case, State v. Agustin, Manatee Circuit Court ...
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