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The flux now engulfing the way in which the defenders of indigent criminal defendants are compensated in England's Crown Court provides a sober lesson for U.S. lawyers. Once, U.S. lawyers, who themselves are appointed to represent indigent defendants, could have cited English practice to support a hefty increase in the meager compensation they receive in many jurisdictions. For in balancing the tension between encouraging effective representation, but at bearable social cost, U.S. jurisdictions stress the latter, all but ignoring the former. The English approach, by contrast, has paid generously, at least in serious cases, thereby implicitly recognizing that defenders could be induced by acceptable remuneration to represent indigents and to do so effectively.

Spiraling costs in England, however, have brought dramatic changes, and have occurred in a rush . . . Seemingly ignored by the Government in implementing these changes in compensation is the way that such shifts can alter the advocate's incentives to appear and to perform effectively. Here, the U.S. experience is instructive. Indigent defendants do not select the lawyer; judges or court personnel make these decisions instead. Even if the defendant had the power his counterpart in the United Kingdom now does to choose the lawyer, many lawyers would refuse the appointment. Not bound by the cab-rank rule to represent any client who seeks help, many able lawyers do not take appointments, discouraged by the very low fees. Those lawyers who do accept appointments are not encouraged by incentives to perform appropriately. They are chosen whether they lack acuity or zealousness. They are not rewarded for a stellar or efficient performance or punished for a lackluster one. Nor do they need to respond to the defendant's desires because of the defendant's difficulty in replacing the appointed lawyer. Lawyers thus do not need to develop a reputation for zealous, compassionate representation in order to attract and to keep work.

Publication Citation

23 Fordham Int'l L.J. 1128-1154 (2000)