Liability for Court-Appointed Counsel

 Posted on May 19, 2009 in Uncategorized

In Texas, a lawyer is responsible for her client until she is removed from the case by the judge. If something goes undone while the lawyer is responsible, she can be grieved and (in certain narrow circumstances) sued.

So when (for example) a defendant makes bail, appointed counsel remains legally on the hook until new counsel substitutes in or the judge signs an order removing the lawyer.I mention this because it appears from my review of cases in which indigent people made bail that the standard practice of Harris County's criminal judges when defendants make bail is to treat appointed counsel as though they're off the case (and won't be paid for any more work) but not put anything on the record.

If I took court-appointed cases in the county, I would find this objectionable: until there's a record of my removal, it's my case; if something needs to be done I have to do it; if I have to do it, I'm going to do it; and if I'm going to do it, I should be paid for it.

It wouldn't be hard for a judge to sign an order removing appointed counsel when a defendant makes bail, thereby making an explicit record of the gap in representation until the defendant hires counsel or convinces the judge that he's still indigent (or gets rearrested).

A record: there's the rub. No judge wants to make a clear record that he has (unlawfully) deprived an accused person of counsel while criminal proceedings are pending. Better to keep the appointed lawyer as a scapegoat, with an understanding that she won't be paid for actually doing anything.

So why don't those who rely on judges to appoint them to cases raise a stink when those judges stop paying them to represent indigent people on bail, but don't sign orders taking them off the cases?

Put that way, the question answers itself, doesn't it?