IN THE SUPREME COURT OF IOWA
No. 07–0870
Filed November 24, 2010
KENT A. SIMMONS,
Appellant,
vs.
STATE PUBLIC DEFENDER,
Appellee.
Appeal from the Iowa District Court for Scott County, David H.
Sivright, Jr., Judge.
An attorney appeals from an order by the district court affirming a
decision by the state public defender to limit fees for representing
indigent defendants on appeal to $1500. REVERSED AND REMANDED.
Kent A. Simmons, Davenport, pro se.
Mark C. Smith, State Appellate Defender, for appellee.
2
APPEL, Justice.
In this case, we are asked to review determinations by the state
public defender rejecting the payment of fees to a court-appointed
appellate counsel in excess of $1500. In the underlying criminal cases,
appellate counsel successfully obtained reversal of the criminal
convictions on the ground that the defendants were provided ineffective
assistance of counsel at trial. In response to a fee application in each
case, the state public defender determined that under his administrative
rules, counsel was not entitled to compensation in excess of $1500 per
appeal.
The district court affirmed the decisions of the state public
defender, largely based upon the existence of a rule limiting
compensation to $1500 per appeal except in cases that are so unusual
and factually or legally complex as to be “beyond the purview of both the
attorney and the state public defender.” See Iowa Admin. Code r. 493—
12.5 (2006). 1 For the reasons expressed below, we reverse the decision
of the district court and remand the case to the district court for further
proceedings.
I. Factual and Procedural History.
A. Nature of the Underlying Cases. The fee applications in these
cases arise out of challenges to convictions based on ineffective
assistance of counsel. In both cases, attorney Kent Simmons was
appointed by the court to represent defendants in their appeals—one
involving a postconviction relief proceeding and the other involving a
direct appeal. The result in both cases was the reversal of convictions
1Allcitations to the Iowa Administrative Code refer to the 2006 version unless
otherwise provided.
3
carrying lengthy prison terms and the grant of new trials for the
defendants.
In the first case, Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008),
Millam was convicted of two counts of sexual abuse. His original appeal
was dismissed as frivolous under Iowa Rule of Appellate Procedure 6.104
(now rule 6.1005). Millam, 745 N.W.2d at 721. Millam filed an
application for postconviction relief, asserting that his trial counsel
provided ineffective assistance of counsel by failing to present evidence of
a victim’s prior false accusation of sexual abuse. Id. The district court
granted the application for postconviction relief, but was reversed by the
court of appeals. Id. We granted further review, vacated the decision of
the court of appeals, affirmed the judgment of the district court, and
remanded the case for a new trial. Id. at 724.
In the second case, State v. Cromer, 765 N.W.2d 1, 5 (Iowa 2009),
Cromer was convicted of third-degree sexual abuse. On direct appeal,
the defendant claimed that trial counsel provided ineffective assistance of
counsel because of trial counsel’s failure to object to the admission of a
tape-recorded conversation between the defendant and the victim.
Cromer, 765 N.W.2d at 6. The court of appeals affirmed the conviction.
Id. On further review, this court vacated the court of appeals decision,
reversed the district court judgment, and remanded the case for a new
trial. Id. at 12.
B. Statutory, Regulatory, and Contractual Context of Indigent
Representation. Iowa Code section 13B.4(3) (2007) authorizes the state
public defender to contract with private attorneys to provide services to
indigent persons. The state public defender is directed to establish “fee
limitations” for particular categories of cases. Iowa Code § 13B.4(4)(a).
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The fee limitations are to be reviewed at least every three years. Id. In
establishing the fee limitations, the state public defender is directed to:
consider public input during the establishment and review
process, and any available information regarding ordinary
and customary charges for like services; the number of cases
in which legal services to indigents are anticipated; the
seriousness of the charge; an appropriate allocation of
resources among the types of cases; experience with existing
hourly rates, claims, and fee limitations; and any other
factors determined to be relevant.
Id. The state public defender is required to adopt rules to implement the
chapter. Id. § 13B.4(8).
The administrative rule adopted by the state public defender is
found at Iowa Administrative Code rule 493—12.5. At the time of the
applications for fees in this case, the administrative rule provided that
fees for appeals for contract attorneys were limited to a cap of $1500,
with $1000 payable on the filing of a proof brief and the balance upon
the filing of the final brief. Iowa Admin. Code r. 493—12.5. The cap on
fees, however, was subject to the following exception: 2
12.5(4). Unusually complicated cases. In an appeal
that is unusually complicated, the attorney may negotiate
with the state public defender for a fee in excess of the fees
contained in rule 12.5 (13B, 815). However, this rule does
not require that the state public defender agree to a higher
fee in any particular case. The term “unusually complicated”
as used in this rule means that the case is highly exceptional
and complex from a legal or factual perspective and so
atypical as to be beyond the purview of both the attorney and
the state public defender. A case is not considered unusually
complicated merely because the client is difficult to work
2The provision of the administrative code establishing an exception to the fee cap
has since been amended to allow additional fees in cases that are “highly exceptional
and complex from a legal or factual perspective” without the requirement that a case be
“so atypical as to be beyond the purview of both the attorney and the state public
defender.” See Iowa Admin. Code r. 493—12.5(4) (2010). In addition, the permissible
fee on appeal has been increased to $1800 for each appellate case, with $1200 payable
upon filing of the proof brief. Id. r. 493—12.5 (2010). The remainder is paid after the
final brief is filed.
5
with or because the case took longer than the attorney
anticipated. A case in which an application for further
review is filed or a case in which oral argument is held at a
location other than Des Moines is generally deemed to be
“atypical” as that term is used in the rule.
Iowa Admin. Code r. 493—12.5(4) (emphasis added).
In both cases, Simmons entered into a fee contract with the state
public defender. Among other things, paragraph three of the contract
provided that the contractor would be paid “for reasonable and necessary
legal services performed by the Contractor under this Contract, pursuant
to administrative rule adopted by the State Public Defender.”
Iowa Code section 13B.4(4)(d) provides an avenue for judicial
review of the action of the state public defender on a fee application.
According to this provision of the Code, “[n]otwithstanding chapter 17A,”
an action for judicial review may be filed with the district court by motion
with the court having jurisdiction over the original appointment. Iowa
Code § 13B.4(4)(d). “If a claim or portion of a claim is denied, the action
of the state public defender shall be affirmed unless the action conflicts
with a statute or an administrative rule.” Id. § 13B.4(4)(d)(5). “If a claim
is reduced for being excessive, the claimant shall have the burden to
establish by a preponderance of the evidence that the amount of
compensation and expenses is reasonable and necessary.” Id.
§ 13B.4(4)(d)(6).
C. Procedural Background. On September 27, 2006, Simmons
filed fee claims in each case after filing his opening page proof brief as
permitted by the administrative rule. In Millam, counsel filed a claim for
a first installment of $3980. In Cromer, counsel filed a claim for a first
installment of $4040. In response to the claims, the state public
defender cited the terms of the fee contract, noting that only $1000 was
due at the filing of the proof brief and that the claims were approved only
6
in this reduced amount. Simmons appealed both decisions to the
district court.
The district court consolidated the appeals for hearing only. At the
original hearing, the court adjourned the proceedings to allow further
discussions between Simmons and the state public defender regarding
whether Simmons was entitled to compensation in excess of the fee cap
because the cases were unusually complicated. The state public
defender determined that because Simmons conceded in his district
court pleadings that he was not entitled to additional compensation
under the “unusually complicated” exception to the flat fee, the state
public defender could not grant him additional compensation.
Nonetheless, the state public defender offered Simmons an additional
$2500 to settle the cases, an offer Simmons rejected.
As a result of the lack of resolution, the matter was heard again by
the district court. Simmons presented evidence including billing
statements, excerpts from his fee contracts with the state public
defender, commentary by past Iowa State Bar Association President Alan
Fredregill on the inadequacy of fees paid to appointed counsel, a survey
of the Iowa State Bar Association indicating the average overhead per
lawyer for most Iowa attorneys exceeds $40 per hour, and an affidavit
from a criminal law attorney offering her opinion that the fees in both
cases were reasonable and necessary and stating her unwillingness to
work as a contract attorney in light of the fee cap. Simmons also
presented copies of various pleadings and correspondence with the state
public defender. Simmons pointed out that if the decision of the state
public defender stood, he would be compensated at a rate of less than
$12 per hour for services that were necessary and reasonable on behalf
7
of his client. With overhead costs of the average lawyer approaching $40
per hour, Simmons, in effect, was working for free.
Simmons also filed a written professional statement. Simmons
stated that brief writing was “a time-consuming, arduous task.” He
recalled seminars he attended where former justices of this court
emphasized the importance of selectively analyzing cases and writing law
and facts as a seamless web. All this, according to Simmons, takes time,
even in a case that cannot be characterized as “atypical.” The rule,
according to Simmons, is “Prepare. Prepare. Prepare.”
The district court upheld the decision of the state public defender.
According to the district court, the flat-fee limitations in the
administrative rules were valid and not contrary to the statute. On the
constitutional question of whether the flat fee violated an indigent client’s
right to counsel, the district court, citing United States v. Dillon, 346 F.2d
633 (9th Cir. 1965), held that an attorney has an obligation to represent
indigents in criminal cases without payment of a fee, except as may be
provided by statute.
On appeal, Simmons raises three interrelated claims. First,
Simmons claims that the administrative rule, which the state public
defender seeks to enforce, fails to carry out the legislature’s mandate for
providing reasonable fees for reasonable and necessary services and, as a
result, is unenforceable. Second, Simmons argues that the flat-fee rule
cannot be enforced because it is null and void on its face, or, in the
alternative, because it violates the enabling statutes as applied to the two
appeals. Finally, Simmons argues that the fee cap has a chilling effect
on the constitutional and statutory rights to effective assistance of
counsel.
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II. Standard of Review.
Our review of a decision by the district court reviewing the state
public defender’s denial of a claim for attorney’s fees is for correction of
errors at law. Iowa R. App. P. 6.907. To the extent a claim on appeal
involves constitutional issues, our review is de novo. Lewis v. Iowa Dist.
Ct., 555 N.W.2d 216, 218 (Iowa 1996).
III. Overview of the State’s Obligation to Provide Effective
Assistance of Counsel.
A. Relationship Between Statutory and Constitutional Issues.
In this case, Simmons raises both constitutional and statutory issues.
Ordinarily, we look to statutory issues first in order to avoid unnecessary
constitutional questions. State v. Fuhrmann, 261 N.W.2d 475, 477 n.1
(Iowa 1978).
Looking solely at the language of the various statutory provisions,
this appeal appears to present a straightforward question. The statute
authorizes the state public defender to establish fee limitations for
certain categories of cases. Iowa Code § 13B.4(4)(a). Acting pursuant to
this statutory authority, the state public defender established fee
limitations by promulgating Iowa Administrative Code rule 493—12.5.
The state public defender then entered into contracts with Simmons that
incorporated the fee limitations. See id. § 13B.4(3) (permitting the state
public defender to contract with “persons admitted to practice law in this
state”). Chapter 13B further provides that the state public defender has
the authority to deny claims “not payable” under the contract and that
any such denial shall be affirmed on review unless it “conflicts with a
statute or an administrative rule.” Id. §§ 13B.4(4)(c)(2)(c), .4(4)(d)(5).
The question, however, is more complicated. While we often decide
cases on statutory grounds to avoid constitutional infirmities, a corollary
9
of this rule is the notion that our interpretation of statutes is often
powered by our desire to avoid the constitutional problem. Iowa
Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Visser, 629 N.W.2d 376, 380
(Iowa 2001); see also State v. White, 545 N.W.2d 552, 557 (Iowa 1996). If
fairly possible, a statute will be construed to avoid doubt as to
constitutionality. Thompson v. Joint Drainage Dist. No. 3-11, 259 Iowa
462, 468, 143 N.W.2d 326, 330 (1966); Jacobs v. Miller, 253 Iowa 213,
218, 111 N.W.2d 673, 676 (1961).
As a result, the scope of the constitutional right to counsel
provided to indigent defendants under the state and federal constitutions
is intertwined and tends to merge with our interpretation of chapter 13B.
Even though we prefer to decide cases on statutory rather than
constitutional grounds, in this case we must have a firm understanding
of the constitutional icebergs that must be avoided in order to guide us
in our statutory interpretation. Only if the statute can bear no
reasonable construction that avoids constitutional doubt do we proceed
definitively to decide the constitutional issue. See Thompson, 259 Iowa
at 468, 143 N.W.2d at 330; Miller, 253 Iowa at 218, 111 N.W.2d at 676.
In this case, it is therefore necessary to review the right to counsel
under the United States and Iowa Constitutions. We then turn to the
proper interpretation of the statutes involved in this case implementing
the right to counsel, giving due consideration to the constitutional
contours present in this case. Only if the statute cannot bear a
constitutional construction do we consider the merits of the
constitutional issues.
B. Critical Nature of the Right to Counsel in the
Constitutional Scheme. The right to counsel embraced in the Sixth
Amendment to the United States Constitution and article I, section 10 of
10
the Iowa Constitution are not constitutional appendices. As noted by the
United States Supreme Court, “there is no right more essential than the
right to assistance of counsel.” Lakeside v. Oregon, 435 U.S. 333, 341,
98 S. Ct. 1091, 1096, 55 L. Ed. 2d 319, 326 (1978). This theme has
been reprised by scholarship on this issue:
Without a lawyer’s aid, it is quite unlikely that an accused
will be able to enjoy the advantages of the other enumerated
rights. Without counsel, there is little chance for a fair battle
between equally able adversaries. Counsel’s most basic role
is to ensure that the confrontation between opponents
contemplated by our Constitution actually does take place.
James J. Tomkovicz, The Right to the Assistance of Counsel: A Reference
Guide to the United States Constitution 128 (Jack Stark ed. 2002).
The critical importance of the right to counsel is demonstrated by
two well-accepted legal doctrines. First, all defendants are entitled not
simply to counsel, but to effective assistance of counsel. Cuyler v.
Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 1716, 64 L. Ed. 2d 333,
343–44 (1980); McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct.
1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970); Powell v. Alabama,
287 U.S. 45, 71, 53 S. Ct. 55, 65, 77 L. Ed. 158, 171–72 (1932). Form
does not prevail over substance. While criminal defendants are not
entitled to perfect counsel, they are entitled to a real, zealous advocate
who will fiercely seek to protect their interests within the bounds of the
law.
Second, if a person is indigent, the state has the constitutional
obligation to provide an effective lawyer at state expense. In Iowa, this
basic premise was recognized years ago in Hall v. Washington County, 2
Greene 473, 478–79 (Iowa 1850). In this case, we held that a lawyer
appointed pursuant to statute was entitled to compensation, even
though the statute did not authorize compensation, in order to ensure
11
that “the arm of the law will [not] be too short to accomplish its designs.”
Hall, 2 Greene at 476. The United States Supreme Court came to
essentially the same conclusion regarding the right to counsel more than
one hundred years later in Gideon v. Wainwright, 372 U.S. 335, 343–45,
83 S. Ct. 792, 796–97, 9 L. Ed. 2d 799, 804–06 (1963).
Substantively, what is expected of appellate counsel in order to be
effective has been considered by the United States Supreme Court in a
handful of cases. The Supreme Court has emphasized that in performing
appellate functions, counsel must be more than a showpiece or amicus
curiae, but a real advocate. Ellis v. United States, 356 U.S. 674, 675, 78
S. Ct. 974, 975, 2 L. Ed. 2d 1060, 1061 (1958). Appellate counsel must
examine the record to determine what potential errors are preserved for
appeal. Anders v. California, 386 U.S. 738, 742–44, 87 S. Ct. 1396,
1399–1400, 18 L. Ed. 2d 493, 497–98 (1967). Once counsel has
determined the potential issues, counsel must conduct adequate
research to determine which issues to press on appeal. McCoy v. Ct. of
Appeals of Wis., 486 U.S. 429, 438–39, 108 S. Ct. 1895, 1902, 100 L. Ed.
2d 440, 453–54 (1988). In most cases, counsel must consult with his
client regarding his right to appeal and the potential grounds for appeal.
Roe v. Flores-Ortega, 528 U.S. 470, 479–80, 120 S. Ct. 1029, 1035–36,
145 L. Ed. 2d 985, 997 (2000). Counsel must comply with all local rules
to ensure that the appeal is heard. Evitts v. Lucey, 469 U.S. 387, 396–
97, 105 S. Ct. 830, 836–37, 83 L. Ed. 2d 821, 830 (1985). These cases,
of course, do not present the entirety of the right to counsel, but are
simply markers delineating the scope of the right in specific contexts.
C. Distinction Between Postconviction and Systemic Claims
Involving the Right to Counsel. The most familiar avenue for
enforcement of the right to effective assistance of counsel is through a
12
postconviction challenge to an underlying conviction. In considering a
postconviction challenge to a criminal conviction under the Sixth
Amendment, it is clear that not every claim of ineffective assistance, even
a meritorious one, requires reversal of a criminal conviction. Under
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674, 693 (1984), the United States Supreme Court held that
before a conviction could be reversed, the defendant needed to show both
that counsel’s performance was “deficient,” and that the deficiency
caused actual prejudice. The performance of counsel is deficient if it falls
“below an objective standard of reasonableness . . . under prevailing
professional norms.” Id. at 688, 104 S. Ct. at 2064–65, 80 L. Ed. 2d at
693–94. In determining whether the acts or omissions of counsel were
constitutionally deficient under Strickland, strong deference must be
provided to choices of counsel that might, with the benefit of hindsight,
appear questionable. Id. at 689–90, 104 S. Ct. at 2065–66, 80 L. Ed. 2d
at 694–95. In order to meet the prejudice prong under Strickland, a
defendant must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Because the relief sought was reversal of the accused’s conviction
and sentence, the application of the Strickland test is necessarily case
specific. The Supreme Court has held that the Strickland approach
applies in determining whether to overturn a conviction due to a violation
of the right to appellate counsel as well as trial counsel. 3 Smith v.
3In a number of cases, we have applied the Strickland test in determining
whether a conviction may be reversed on grounds of ineffective assistance of counsel.
See, e.g., State v. Canal, 773 N.W.2d 528, 532 (Iowa 2009); Anfinson v. State, 758
N.W.2d 496, 499–505 (Iowa 2008); State v. Schaer, 757 N.W.2d 630, 637–38 (Iowa
2008). In many of these cases, it appears that the parties made no distinction between
the Iowa Constitution and the United States Constitution. See Canal, 773 N.W.2d at
13
Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764, 145 L. Ed. 2d 756, 780
(2000).
There is, however, a second potential avenue for enforcement of the
right to counsel. This second avenue is based on the notion that in order
to ensure effective assistance of counsel for indigent defendants, the
state has an affirmative obligation to establish a system of indigent
defense that is reasonably likely to provide for zealous advocacy on
behalf of the criminal defendant. A claim that a state’s method of
providing counsel to indigent defendants does not adequately ensure
effective assistance of counsel is often referred to as a systemic or
structural challenge. See Rodger Citron, Note, (Un)Luckey v. Miller: The
Case for a Structural Injunction to Improve Indigent Defense Services, 101
Yale L.J. 481, 486, 501–02 (1991).
In cases involving systemic or structural challenges to the state’s
system of providing counsel, the focus is not on a post-hoc historical
review of a criminal trial, but is instead based on the structure through
which indigent defense is provided by the state. A structural challenge
involves a realistic assessment of whether the state has provided an
adequate framework for ensuring that the right to counsel is realized in
cases involving indigent defense.
In cases involving systemic or structural challenges, the state’s
weighty interest in the finality of a specific criminal judgment is not
____________________
532 (referring generally to “ineffective-assistance-of-counsel” claims); Anfinson, 758
N.W.2d at 499 (same); Schaer, 757 N.W.2d at 637–38 (same). As a result, under our
prudential rules, we ordinarily consider the substantive standards under the Iowa
Constitution the same as those developed by the United States Supreme Court under
the Federal Constitution. State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008); In re
Det. of Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000). Even in cases where no
substantive distinction has been advanced by the parties, we reserve the right to apply
the principles differently. State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009); Racing
Ass’n of Cent. Iowa v. Fitzgerald (RACI II), 675 N.W.2d 1, 6 (Iowa 2004).
14
involved. As a result, a showing of “actual prejudice” in a particular case
is arguably not applicable; instead, what is required is a showing that
the structural feature being challenged threatens or is likely to impair
realization of the right to effective assistance of counsel.
D. Nature of Structural Concerns Regarding Implementation
of Right to Counsel for Indigents.
1. Concerns regarding state efforts to implement Gideon. In the
wake of Gideon, the states have developed various mechanisms to
provide indigent defendants with effective assistance of counsel.
Notwithstanding the efforts of the states, including Iowa, there have been
expressions of concern nationally regarding the degree to which the
efforts have been adequate.
The American Bar Association (ABA) in particular has been
concerned about the quality of criminal representation for indigent
defendants, issuing repeated reports and opinions raising serious
questions about the quality of indigent defense across the nation. 4 In
4For example, in 1982, the ABA held a hearing to study the funding of indigent
defense services. The subsequent report concluded that “the financing of criminal
defense services for indigents is generally inadequate.” Gideon Undone: The Crisis in
Indigent Defense Funding, Summary, 1982 A.B.A. Standing Comm. Legal Aid & Indigent
Defendants, available at http://www.abanet.org/legalservices/downloads/sclaid/
indigentdefense/gideonundone.pdf. In 1993, the ABA Section on Criminal Justice
received a report regarding the status of indigent defense. See Richard Klein & Robert
Spangenberg, The Indigent Defense Crisis, 1993 A.B.A. Sec. of Crim. Just. According to
the report, the level of funding for a majority of the indigent defense programs around
the country “has reached the crisis level and threatens the effective implementation of
the Sixth Amendment right to counsel.” Id. at 1. In 2004, the ABA published a report
entitled Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice. This
document declared that the funding for indigent defense services was “shamefully
inadequate” and that “indigent defense . . . remains in a state of crisis, resulting in a
system that lacks fundamental fairness and places poor persons at constant risk of
wrongful conviction.” See Gideon’s Broken Promise: America’s Continuing Quest for
Equal Justice—A Report on the American Bar Association’s Hearings on the Right to
Counsel in Criminal Proceedings, 2004 A.B.A. Standing Comm. on Legal Aid & Indigent
Defendants 38.
In 2006, the ABA Standing Committee on Ethics and Professional Responsibility
issued an opinion calling on public defenders to withdraw from representation when
15
general, the ABA has expressed concerns about inadequate financing of
defense services for indigents and case overloads in public defender
offices. 5 In addition to the ABA, academic criticism of structural
deficiencies in the provision of legal defense to indigents has been
common. Only a little more than a decade after Gideon, a respected
jurist wrote powerful commentary regarding the inadequacy of criminal
defense services. See David L. Bazelon, The Realities of Gideon and
Argersinger, 64 Geo. L.J. 811 (1976); David L. Bazelon, The Defective
Assistance of Counsel, 42 U. Cin. L. Rev. 1 (1973). Since then, numerous
other articles have excoriated the quality of appointed counsel for
indigent defendants. See, e.g., Stephen B. Bright, Neither Equal Nor Just:
The Rationing and Denial of Legal Services to the Poor When Life and
Liberty are at Stake, 1997 Ann. Surv. Am. L. 783 (1997); Richard Klein,
The Eleventh Commandment: Thou Shalt Not Be Compelled to Render the
Ineffective Assistance of Counsel, 68 Ind. L.J. 363 (1993); Richard Klein,
The Emperor Gideon Has No Clothes: The Empty Promise of the
Constitutional Right to Effective Assistance of Counsel, 13 Hastings Const.
L.Q. 625 (1986). As noted by one author, everyone agrees that Gideon
was rightly decided, and no one believes it has been implemented.
Donald A. Dripps, Ineffective Assistance of Counsel: The Case for an Ex
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caseloads become unmanageable. ABA Comm. on Ethics and Prof’l Responsibility,
Formal Op. 06-441 (2006), available at http://www.abanet.org/legalservices/sclaid/
defender/downloads/ethics_opinion_defender_caseloads_06_441.pdf. Finally, in 2009,
a distinguished group of bipartisan and ideologically diverse lawyers and judges
sounded a warning siren for the states. See Nat’l Right to Counsel Comm., Justice
Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, Report of the
National Right to Counsel Committee (April 2009), available at http://
www.constitutionproject.org/manage/file/139.pdf. They declared that the resources
made available for indigent defense were grossly inadequate. See id. xi.
See footnote 3, above.
5
16
Ante Parity Standard, 88 J. Crim. L. & Criminology 242, 307–08 (1997)
[hereinafter The Case for an Ex Ante Parity Standard].
None of the above authorities focuses on Iowa and, as a result, no
conclusions on the state of indigent defense in Iowa may be drawn from
these studies. 6 The authorities do suggest, however, that we should be
vigilant in ensuring indigent defendants receive the effective assistance of
appellate counsel that the constitution demands. Otherwise, as noted by
this court in a case requiring the state to pay for the cost of statutorily
required counsel, “the arm of the law will be too short to accomplish its
designs.” Hall, 2 Greene at 476.
2. Efforts to address structural problems through standards for
indigent representation. In order to put some spine into the highly
important but rather vague concept of ineffective assistance of counsel,
professional organizations have developed standards for lawyers engaged
in the criminal defense of indigent persons. For example, in 1973, the
National Legal Aid and Defender Association (NLADA) developed workload
standards for public defenders, indicating that a public defender should
be engaged in no more than twenty-five appeals per year in order to do
the job adequately. See Nat’l Advisory Comm’n on Criminal Justice
Standards & Goals, Nat’l Legal Aid & Defender Ass’n, Standards for
Defense, Standard 13.12 (1973), available at http://www.nlada.org/
6Indigent defense in Iowa, however, has not been free from professional
criticism. In 1999, Professor Robert Rigg published a study that focused in part on the
provision of criminal defense services in Iowa. Among other things, Rigg noted the low
rates of criminal counsel compared to counsel retained by the state for other matters
and the high caseload carried by at least some public defenders in Iowa. See Robert
Rigg, The Constitution, Compensation, and Competence: A Case Study, 27 Am. J. Crim.
L. 1, 27–34 (1999). Rigg declared that the controlling factor in the Iowa system is “cost
containment rather than client representation.” Id. at 35.
17
Defender/Defender_Standards/Standards_For_The_Defense [hereinafter
Standards for the Defense].
Also, if Gideon is implemented by contracting with lawyers, ABA
and NLADA standards require that the lawyers receive reasonable
compensation. ABA standards require reasonable compensation for
attorneys under contract. ABA Criminal Justice Section Standards,
Providing Defense Services, Standard 5-3.3(b)(ix) (Am. Bar Ass’n 3d ed.
1992), available at http://www.abanet.org/crimjust/standards/defenses
_blk.html. The NLADA standard requires compensation at a rate that
reflects customary compensation in the jurisdiction for similar services,
the time and labor required by the attorney, and the degree of
professional skill and experience of the attorney. National Study
Comm’n on Defense Servs., Nat’l Legal Aid & Defender Ass’n, Guidelines
for Legal Defense Systems in the United States, Guideline III-3.1 (1976).
E. Potential Litigation Approaches to Structural
Shortcomings.
1. Introduction. For the most part, the proposed standards have
not been expressly or impliedly adopted by local jurisdictions. As a
result of the persistent presence of structural problems and the perceived
inadequacy of indigent defense, a number of academics have suggested
advocates resort to the courts to remedy the situation. See Jacqueline
McMurtrie, Unconscionable Contracting for Indigent Defense: Using
Contract Theory to Invalidate Conflict of Interest Clauses in Fixed-Fee
Contracts, 39 U. Mich. J.L. Reform 773, 776, 820–21 (2006) (suggesting
use of contract-law concepts to invalidate fixed-fee contractual
provisions); see also Note, Gideon’s Promise Unfulfilled: The Need for
Litigated Reform of Indigent Defense, 113 Harv. L. Rev. 2062 (2000)
18
[hereinafter Gideon’s Promise Unfulfilled]; Margaret H. Lemos, Note, Civil
Challenges to the Use of Low-Bid Contracts for Indigent Defense, 75 N.Y.U.
L. Rev. 1808 (2000) [hereinafter Civil Challenges]. These authorities
generally urge courts to explore judicial remedies that do not involve
efforts to reverse criminal convictions and thus are not subject to the
relatively demanding Strickland test.
2. Federal case law. There has not been a large body of federal
litigation dealing with structural problems in indigent defense. Part of
the reason may be that the federal government has been more generous
in providing resources for indigent defense. One case of interest,
however, is Luckey v. Harris (Luckey I), 860 F.2d 1012 (11th Cir. 1988).
In this case, indigent persons exposed or potentially exposed to the
criminal justice system and their lawyers brought a class action seeking
injunctive relief on the ground that Georgia’s system of indigent defense
violated the Sixth Amendment. Luckey, 860 F.2d at 1013. The lawsuit
sought to limit the number of cases an attorney could handle, set
standards for compensation for court-appointed counsel, and set
minimum standards for effective assistance of counsel. Id. at 1014. The
district court originally dismissed the case for failure to state a claim and
for violating the Eleventh Amendment. Id. at 1013. The district court
ruled that the plaintiffs’ action must be dismissed because they failed to
show that the Georgia indigent defense system produced “across-the-
board” violations of the Sixth Amendment under Strickland. Id. at 1016.
In reversing the district court, the Court of Appeals for the
Eleventh Circuit held that the Strickland standard did not apply in the
case. Id. at 1017. The court stated:
[D]eficiencies that do not meet the “ineffectiveness” standard
may nonetheless violate a defendant’s rights under the
[S]ixth [A]mendment. In the post-trial context, such errors
19
may be deemed harmless because they did not affect the
outcome of the trial. Whether an accused has been
prejudiced by the denial of a right is an issue that relates to
relief—whether the defendant is entitled to have his or her
conviction overturned—rather than to the question of
whether such a right exists and can be protected
prospectively.
Id. In short, the right to counsel according to the Eleventh Circuit does
not simply protect the defendant from trial outcomes. The court
concluded that the Strickland “concern[] for finality, concern that
extensive post-trial burdens would discourage counsel from accepting
cases, and concern for the independence of counsel” did not apply in a
setting where only prospective relief was sought. Id.
Ultimately, the Luckey litigation was brought to a halt through
application of Younger abstention. Luckey v. Miller (Luckey V), 976 F.2d
673, 679 (11th Cir. 1992); see generally Younger v. Harris, 401 U.S. 37,
91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) (articulating the abstention
doctrine). Nonetheless, the Eleventh Circuit decision stands for the
proposition that even federal courts may recognize that Strickland
prejudice standards do not apply with respect to structural challenges
under the Sixth Amendment to the means of providing indigent defense. 7
3. State court cases. A number of theories have been advanced in
state courts to challenge fee caps on attorneys who represent indigent
defendants. These theories include those based in “takings” law, on the
inherent powers of the courts to supervise the judicial process, and on
7The issue of Strickland’s applicability in a structural challenge has not been
tested before the United States Supreme Court. Justice Blackman, however, has
expressed concern about structural obstacles to effective assistance of counsel. In
McFarland v. Scott, 512 U.S. 1256, 114 S. Ct. 2785, 129 L. Ed. 2d 896 (1994), Justice
Blackman decried a denial of certiorari in a death penalty case, noting “the absence of
funds to compensate lawyers prevents even qualified lawyers from being able to present
an adequate defense.” McFarland, 512 U.S. at 1257, 114 S. Ct. at 2786, 129 L. Ed. 2d
at 897 (Blackmun, J., dissenting).
20
the constitutional requirements of providing effective assistance of
counsel in criminal proceedings. All of the theories have one common
function—avoiding the application of the high Strickland standards in
dealing with the systemic problems related to the provision of criminal
defense.
Some courts have invalidated fee caps on grounds that the fee caps
amount to a taking of the property of attorneys in violation of due
process of law. See, e.g., DeLisio v. Alaska Superior Ct., 740 P.2d 437,
442–43 (Alaska 1987); Arnold v. Kemp, 813 S.W.2d 770, 775 (Ark. 1991);
State ex rel. Stephan v. Smith, 747 P.2d 816, 842 (Kan. 1987); State v.
Lynch, 796 P.2d 1150, 1158 (Okla. 1990); see also State ex rel. Partain v.
Oakley, 227 S.E.2d 314, 319 (W. Va. 1976), superseded by statute,
W. Va. Code § 29-21-1 (1989), as recognized in State ex rel. White v.
Trent, 519 S.E.2d 649, 652 (W. Va. 1999). These cases, however,
invariably involve situations where the attorney is involuntarily
appointed to represent the indigent defendant, a circumstance that is not
present in this case.
Other courts have invalidated fee caps on the ground that they
unduly invade the power of the courts to regulate the practice of law and
judicial proceedings. See, e.g., White v. Bd. of County Comm’rs, 537 So.
2d 1376, 1380 (Fla. 1989) (explaining that the judiciary’s “inherent
power to award attorney’s fees in excess of the . . . statutory fee cap”
permits a court to award fees in excess of the statutory maximum);
Makemson v. Martin County, 491 So. 2d 1109, 1111 (Fla. 1986) (finding
that a statutory fee limitation is unconstitutional “when applied in such
a manner as to curtail the court’s inherent power to ensure the adequate
representation of the criminally accused”); In re Recorder’s Ct. Bar Ass’n,
503 N.W.2d 885, 897 (Mich. 1993) (striking down fixed-fee system and
21
directing development of an alternate system of payment); Smith v. State,
394 A.2d 834, 838 (N.H. 1978) (declaring what constitutes reasonable
compensation is peculiarly within the judicial province and
determination of reasonableness is a judicial power implicitly in the
constitutional scheme); Lynch, 796 P.2d at 1163 (reasoning that the
Oklahoma Supreme Court’s “constitutional responsibilities” and
“inherent power” compelled the conclusion that the practice of
compulsory appointment of attorneys without providing adequate
compensation amounted to an unconstitutional taking of private
property). The common thread in these cases is that the judiciary has
the inherent constitutional responsibility over the judicial process and
that responsibility extends to ensuring that indigent criminal defendants
are provided adequate counsel.
A few courts have considered challenges to fee structures on due
process and ineffective-assistance-of-counsel grounds. For example, in
State v. Smith, 681 P.2d 1374, 1376 (Ariz. 1984), the Arizona Supreme
Court considered the validity of a low-bid contract for the provision of
services to indigent defendants in Mohave County, Arizona. The court
concluded the system as implemented violated federal constitutional
rights to due process and assistance of counsel. Smith, 681 P.2d at
1381. Among other things, the court noted that the system violated the
ABA standards for criminal justice and the NLADA guidelines by failing
to consider the time each attorney must spend in representation. Id. at
1379–81. The court concluded that there would be a presumption that
the system adversely affected the adequacy of representation in Mohave
County. Id. at 1384; see also Suzanne Mounts, The Right to Counsel and
the Indigent Defense System, 14 N.Y.U. Rev. L. & Soc. Change 221, 226–
22
27, 231 (1986) (arguing for shifting burdens of proof where systemic
shortcomings are present in indigent-defense representation).
Sometimes the pressure of potential constitutional violations has
influenced the interpretation of a state statute authorizing payment of
fees for indigent defense. Specifically, in Bailey v. State, 424 S.E.2d 503,
508 (S.C. 1992), the court held that controlling statutes could not be
interpreted as establishing absolute maximum remuneration for costs
and fees because they do not provide adequate compensation to ensure
effective assistance of counsel in capital cases. And, in May v. State, 672
So. 2d 1307, 1308–09 (Ala. Crim. App. 1993), the court avoided the
prospect of declaring a fee cap unconstitutional by a generous
construction of the underlying statute to allow reimbursement for
“overhead expenses.” See also Wilson v. State, 574 So. 2d 1338, 1340
(Miss. 1990) (noting that courts will construe a maximum-fee statute “ ‘to
enable [the statute] to withstand the constitutional attack and to carry
out the purpose embedded in the [statute]’ ” (quoting Frazier v. State ex
rel. Pittman, 504 So. 2d 675, 708 (Miss. 1987))). 8
While the structural ineffective-assistance-of-counsel cases involve
multiple theories, there are several themes that run throughout them.
First, the cases see a linkage between compensation and the provision of
effective assistance of counsel. See, e.g., Makemson, 491 So. 2d at 1114
8In contrast, in State v. Bacon, 658 A.2d 54, 66 (Vt. 1995), an attorney assigned
a complex murder case at a rate of $25 per hour sought to withdraw because the state
failed to pay his fee in a timely manner. Counsel also failed to test DNA evidence or
cross-examine the State’s DNA experts. Bacon, 658 A.2d at 67. On appeal, a claim of
conflict of interest was raised. Id. The court found that the conflict was present, but
held that there was no prejudice under Strickland. Id. at 68. For other cases applying
the Strickland test to structural challenges, see Stephan, 747 P.2d at 831–32; State v.
Robinson, 465 A.2d 1214, 1216 (N.H. 1983); Madden v. Township of Delran, 601 A.2d
211, 215 (N.J. 1992); State ex rel. Friedrich v. Circuit Ct., 531 N.W.2d 32, 40–44 (Wis.
1995).
23
(“The link between compensation and the quality of the representation
remains too clear.”); Jewell v. Maynard, 383 S.E.2d 536, 544 (W. Va.
1989) (concluding that it is unrealistic to expect appointed counsel to
remain “insulated from the economic reality of losing money each hour
they work”). Second, they challenge the notion that members of the bar
have an ethical obligation to pick up the gauntlet and provide assistance
of counsel in light of the state’s default. See, e.g., Makemson, 491 So. 2d
at 1114–15 (stating that pro bono implementation is haphazard, is
unfairly imposed in practice, and causes attorneys to bear the burden of
the state because of the increasing complexity and rising costs of cases);
Stephan, 747 P.2d at 835–36 (explaining that the obligation to provide
counsel for indigent defendants is that of the state); Jewell, 383 S.E.2d
at 543 (declaring notion that lawyers had obligation to provide services to
indigents free of charge has been “decimated” in recent scholarship
establishing the narrowness of English tradition and lack of applicability
in modern day setting). Third, they regard separation-of-powers
concepts as not presenting an obstacle to judicial action to ensure that
the right to counsel as guaranteed by state and federal constitutions is
effectively honored. See, e.g., Stephan, 747 P.2d at 842–43 (finding no
separation-of-powers issue in determining reasonable fee for indigent
defense); Wilson, 574 So. 2d at 1342 (Robertson, J., concurring) (“If an
adequate courthouse is essential to the administration of justice, so are
competent counsel.”); Smith, 394 A.2d at 838 (noting that if the
obligation to represent indigent defendants springs from judicial
authority, so too does authority to determine reasonable compensation).
4. Iowa case law. The first Iowa cases dealing with compensation
of court-appointed attorneys indicated that the courts had common law
power to provide for compensation of appointed counsel. See Hall, 2
24
Greene at 476–78. In Hall, a case decided before the constitution of
1857 was adopted, the Iowa court held that where services were
performed by a lawyer appointed
in obedience to direct mandate of statutory law, under the
direction of a tribunal to which the enforcement of that law
is committed, reasonable compensation to the person who
performs that service is a necessary incident; otherwise, the
arm of the law will be too short to accomplish its designs.
Id. at 476; see generally Robert Rigg, The Constitution, Compensation,
and Competence: A Case Study, 27 Am. J. Crim. L. 1, 47–48 (1999)
(concluding that “[u]nderfunding abandons the Sixth Amendment’s
mandate that every citizen charged with a crime deserves effective
assistance of counsel”).
This court followed Hall almost a century later in Ferguson v.
Pottawattamie County, 224 Iowa 516, 278 N.W. 223 (1938). In Ferguson,
the court held that court-appointed lawyers who represented two juvenile
defendants were entitled to compensation for their services from the
public notwithstanding the lack of any specific statutory authorization
for compensation. 224 Iowa at 519–20, 278 N.W. at 224.
After Gideon, this court considered a number of cases involving
fees for defense counsel. In Soldat v. Iowa District Court, 283 N.W.2d
497, 498 (Iowa 1979), the court considered the meaning of legislation
authorizing reasonable compensation for indigent defense decided by the
trial court on a case-by-case basis. The court found that “reasonable”
fees did not mean compensation normally charged for a privately
retained case. Soldat, 283 N.W.2d at 499. The court reasoned that a
discount from a fee that would be obtained in a private case was
appropriate in light of the ethical obligation of lawyers to represent the
defenseless and the oppressed. Id. at 499–500.
25
In Hulse v. Wilfvat, 306 N.W.2d 707, 708 (Iowa 1981), the court
considered reasonable compensation for appointed counsel under a
statute that defined reasonable compensation as including “the ordinary
and customary charges for like services in the community.” The court
determined that, under this statute, full compensation for reasonably
necessary services was appropriate but emphasized that a factor to be
considered was certainty of payment. Hulse, 306 N.W.2d at 712.
The issue of permissible restrictions on fees for representation of
indigent defendants in criminal proceedings was revisited in Coonrad v.
Van Metre, 362 N.W.2d 197 (Iowa 1985). In Coonrad, the majority of the
court held that a fee of $40 per hour—awarded pursuant to a judicial
district rule establishing $40 as an average to be paid for criminal
defense—was not an abuse of discretion, notwithstanding testimony from
other attorneys that they received fees of $50 to $75 per hour for similar
work. Coonrad, 362 N.W.2d at 199–200. In a concurring opinion,
Justice Schultz declared,
I believe that it is self-evident that to attract able
counsel to accept court appointments, the State must
provide adequate remuneration. As in any other profession,
the skills and abilities of attorneys that practice law vary.
The more able attorneys can command larger fees. Despite
ethical considerations, it is obvious that modern day law
offices have high overhead which must be paid from the fees
that a lawyer can generate.
Id. at 201 (Schultz, J., concurring).
In September 1985, the court issued guidelines on costs of court-
appointed counsel. The guidelines generally provided for a procedure for
establishing fees for court-appointed counsel. See 1985 Iowa Supreme
Ct. Supervisory Order, In re Costs of Court-Appointed Counsel ¶ 1. The
guidelines expressly stated that there should be no discount based upon
an attorney’s duty to represent the poor. Id. ¶ 6. The guidelines
26
established fee caps for classes of criminal offenses which could,
however, be exceeded with prior approval of the district court. Id. ¶ 4(b).
The guidelines expressly stated that they did not “prevent public bodies
from establishing public defender offices pursuant to statute or from
entering contracts for attorney services consistent with constitutional
and statutory constraints.” Id. ¶ 2.
Compensation afforded under the guidelines was challenged in
Postma v. Iowa District Court, 439 N.W.2d 179 (Iowa 1989). In Postma,
an appointed lawyer sought to recover $6546 at $60 per hour. Postma,
439 N.W.2d at 180. The district court, however, approved only payment
at $45 per hour up to the cap of $1000 for the type of crime involved. Id.
In Postma, the lawyer’s claim for additional compensation failed for two
reasons. First, the lawyer failed to obtain prior approval for a fee in
excess of the categorical caps as required by the rule. Id. at 182.
Second, the court held that there was no chilling effect with respect to
state or federal constitutional rights in light of the fact that the defendant
was found not guilty. Id.
Fee issues were revisited in Lewis. In this case, attorneys
challenged the guidelines as violating equal protection principles. Lewis,
555 N.W.2d at 217. The court noted that the court-appointed attorneys
prosecuting the case had standing to challenge the constitutionality of
the statutory fee schedule because the rights of the attorneys were
“inextricably linked” with the rights of indigent defendants. Id. On the
merits, however, the court rejected the plaintiffs’ claims. Id. at 219–21.
The court inaccurately stated that Sixth Amendment claims in similar
cases “have not been [found] tenable unless the court-appointed counsel
is totally uncompensated or unless the bar is required to assume the
entire burden of indigent defense.” See id. at 220. The court apparently
27
believed that the Strickland standard of prejudice for postconviction relief
actions applied in a claim for pretrial relief, rejected application of any
presumption of ineffectiveness, and suggested that the plaintiffs’ case
was deficient because there was no showing that a particular litigant was
placed at a disadvantage by the fee guidelines. See id. at 219–21. The
court cited with approval Ex parte Grayson, 479 So. 2d 76 (Ala. 1985),
one of the harsher Sixth Amendment cases where the Alabama Supreme
Court upheld an expense maximum of $500 and an attorney fee
maximum of $1000 in capital cases. See id. at 219–20; see also Ex parte
Grayson, 479 So. 2d at 79–80.
IV. Construction of Statutes in Light of Constitutional
Principles.
A. Introduction. We now consider the proper construction of the
various provisions of Iowa Code chapter 13B in light of the potential
constitutional implications of article I, section 10 of the Iowa
Constitution. In order to do so, we examine the potential merit of the
underlying constitutional claims. In this undertaking, it is not necessary
to make an express holding on the constitutional issue. See Thompson,
259 Iowa at 468, 143 N.W.2d at 330; Miller, 253 Iowa at 218, 111 N.W.2d
at 676. We need only find that the constitutional issues are sufficiently
serious that the statute should be interpreted in a fashion to avoid
constitutional difficulties, if reasonably possible. See Thompson, 259
Iowa at 468, 143 N.W.2d at 330; Miller, 253 Iowa at 218, 111 N.W.2d at
676.
B. Obstacles to Consideration of Constitutional Issues. We
first clear away some procedural underbrush. There is some question
regarding whether a lawyer has standing to assert the constitutional
claims arising from systemic right-to-counsel claims. See Portman v.
28
County of Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993). We have held,
however, that a lawyer appointed to represent an indigent defendant has
standing to assert the constitutional claims of defendants’ rights under
article I, section 10 of the Iowa Constitution. Lewis, 555 N.W.2d at 218–
19. We have found that the issues of a defendant’s right to effective
assistance of counsel and an attorney’s right to fair compensation are
“inextricably linked.” Id. at 219; see also Makemson, 491 So. 2d at 1112.
There is also a question of whether Simmons must show
Strickland-type prejudice in this case in order to raise constitutional
issues. Where, as here, we are interpreting a statute to avoid potential
constitutional problems, we do not believe a showing of “actual
prejudice” in the case before us is required. Indeed, through our
construction of the applicable statutes, we are seeking to avoid potential
prejudice in the future. Although Simmons has already performed his
legal service, our consideration of the constitutionality of the hard-fee
cap is akin to a prospective challenge that requires establishment of an
ex ante or before-the-fact standard. See The Case for an Ex Ante Parity
Standard, 88 J. Crim. L. & Criminology at 243 (concluding that the
“Strickland inquiry into counsel’s effectiveness ex post should be
supplement[ed] by an ex ante inquiry into whether the defense is
institutionally equipped to litigate as effectively as the prosecution.”);
Gideon’s Promise Unfulfilled, 113 Harv. L. Rev. at 2070–71 (citing Smith,
681 P.2d at 1378 for the propositions that the prospective inquiry into
the method of providing counsel to indigent defendants is “both different
from the retrospective fairness inquiry and also necessary for compliance
with the Sixth Amendment”). The constitutional concerns in this case
are not based upon the performance of defense counsel but upon the
possibility that a statutory framework through which counsel is provided
29
has potential constitutional infirmities. See Wallace v. Kern, 392 F.
Supp. 834, 847 (E.D.N.Y. 1973), vacated on other grounds, 481 F.2d 621
(2d Cir. 1973); Civil Challenges, 75 N.Y.U. L. Rev. at 1824.
We conclude that the Strickland prejudice test does not apply in
cases involving systemic or structural challenges to the provision of
indigent defense counsel that do not involve efforts to vacate criminal
convictions. As pointed out in Luckey, the weighty policy reasons for the
high Strickland bar—namely, finality in criminal judgments and the fear
of a rash of ineffective-assistance claims—are simply not present here. 9
860 F.2d at 1017; see also Pruett v. State, 574 So. 2d 1342, 1359 (Miss.
1990); N.Y. County Lawyers’ Ass’n v. State, 745 N.Y.S.2d 376, 384 (Sup.
9The approach of Strickland to ineffective-assistance claims in the postconviction
context has its detractors. In his dissent, Justice Marshall suggested, among other
things, that it would be very difficult for a court to determine “prejudice” based on an
inadequate record developed by incompetent or ineffective counsel. Strickland, 466 U.S.
at 710, 104 S. Ct. at 2076, 80 L. Ed. 2d at 708 (Marshall, J., dissenting). Academic
commentary has been critical as well. See, e.g., Stephanos Bibas, The Psychology of
Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel, 2004 Utah L.
Rev. 1, 11 (2004); Sanjay K. Chhablani, Chornically Stricken: A Continuing Legacy of
Inffective Assistance of Counsel, 28 St. Louis U. Pub. L. Rev. 351, 390 (2009); Donald A.
Dripps, Ineffective Assistance of Counsel: The Case for an Ex Ante Parity Standard, 88
J. Crim. L. & Criminology 242, 270–71 (1997); William S. Geimer, A Decade of
Strickland’s Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4
Wm. & Mary Bill Rts. J. 91, 124 (1995); Jeffrey L. Kirchmeier, Drink, Drugs, and
Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the
Strickland Prejudice Requirement, 75 Neb. L. Rev. 425, 455–63 (1996); Richard Klein,
The Constitutionalization of In Effective Assistance of Counsel, 58 Md. L. Rev. 1433,
1445–52 (1999).
Regardless of the merits of the criticism, there is a hydraulic relationship
between the appropriateness of the Strickland ex post test in challenging convictions
and the degree to which the court is willing to take meaningful steps ex ante to mitigate
systemic or structural shortcomings in the right to counsel at trial. By addressing
systemic deficiencies at the front-end of the criminal process, it becomes more
acceptable to impose a relatively high bar for the vacation of convictions in
postconviction actions. The greater the systemic assurance that a defendant is
provided with effective trial counsel, the lesser the need for a broad avenue of
postconviction relief. See generally Pruett, 574 So. 2d at 1359 (discussing the
relationship between ex post and ex ante analyses of ineffective-assistance claims). To
the extent, however, that structural problems make effective assistance of counsel more
difficult, application of the relatively high bar to successful claims under the Strickland
rule is correspondingly less defensible.
30
Ct. 2002). In this case, the only issues relate to the enforceability of a
rule that limits the fee for appointed counsel and a contract provision
incorporating the rule. The state’s weighty interest in finality of criminal
convictions is not affected. In this setting of a fee challenge, we hold that
a lawyer may mount a successful challenge by showing that the fee
restrictions, if enforced, would have a substantial chilling effect on the
constitutional rights of criminal defendants. There is no requirement of
showing actual prejudice in a particular case. We question the
continuing validity of Lewis and any other precedent to the extent that
they are contrary to this proposition.
We also do not believe separation-of-powers concepts prevent us
from interpreting the statutes in a fashion to avoid potential
constitutional problems. It is the responsibility of the judicial branch to
ensure that indigents receive effective assistance of counsel as required
by article I, section 10. While it is true that an adverse ruling will have
some fiscal impact on the state, this is true in many situations. If the
court was constrained any time a ruling had fiscal impact, Gideon itself,
which has been characterized as an “enormous unfunded mandate
imposed upon the states,” would have been wrongly decided. See
Norman Lefstein, In Search of Gideon’s Promise: Lessons from England
and the Need for Federal Help, 55 Hastings L.J. 835, 843 (2004).
C. Substance of Systemic Right-to-Counsel Issues in This
Case. We now consider the extent to which Simmons’s constitutional
claims have merit. We begin by considering whether ethical
considerations are sufficient to trump structural right-to-counsel claims
based on grossly inadequate compensation. The district court in this
case relied upon Dillon, 346 F.2d at 637–38, which held that attorneys
31
are ethically obligated to provide adequate representation without
compensation.
Modern scholarship, however, has persuasively discredited the
Dillon view that historical traditions mandate attorneys to represent
criminal defendants for free or for little compensation. See David
Shapiro, The Enigma of the Lawyer’s Duty to Serve, 55 N.Y.U. L. Rev.
735, 740–49 (1980) (noting that the duty in English law was limited to
the very group of officers who had extraordinary privileges at court and
did not apply to ordinary attorneys); see also DeLisio, 740 P.2d at 441;
Stephan, 747 P.2d at 839–42; State ex rel. Scott v. Roper, 688 S.W.2d
757, 762–69 (Mo. 1985).
Further, the notion that the state’s obligations can be satisfied
indirectly through attorneys volunteering their time and effort arise from
the days when a criminal trial was not a long and complicated affair and
any generally trained lawyer could step in and handle a case or two
without substantial financial sacrifice. Those days have long passed as
the criminal law has increased in complexity, and the cost of operating a
law office has risen dramatically. Makemson, 491 So. 2d at 1114; Jewell,
383 S.E.2d at 542. The suggestion in Lewis that authorities do not
support a systemic right-to-counsel claim unless the substantial burden
of indigent defense is born by lawyers was inaccurate at the time and is
now out-of-step with present day realities in the legal profession.
In analyzing the merits of Simmons’s systemic or structural
claims, it is important to focus precisely on what the challenged rule
provides. It states that for appellate work, there is a fee cap of $1500
unless counsel can demonstrate that the work is “beyond the purview of
32
both the attorney and the state public defender.” 10 Iowa Admin. Code r.
493—12.5(4). In other words, under the state public defender’s rule
involved in this case, the attorney must demonstrate that he or she is not
capable of providing the representation and that the state public
defender cannot provide it either. In appellate work, an experienced
criminal lawyer will be hard pressed to say that the work is beyond his or
her capability. What is required, however, in a substantial criminal
appeal is the dedication of time and effort far in excess of compensation
of $1500 at an hourly rate of $50 per hour.
This case, then, does not involve a flexible approach to fees where
an attorney can show the reasonableness and necessity of fees in excess
of a target amount. Thus, Lewis and Postma, which emphasized the
flexibility of the fee structures at issue in those cases, are inapposite.
See Lewis, 555 N.W.2d at 220; Postma, 439 N.W.2d at 182. Here, we are
dealing with a hard cap that prevents an attorney from recovering
additional fees even in a case where effort in excess of that authorized is
reasonable and necessary.
We also note that the concepts of “reasonable fee” and the
constitutional requirements of effective assistance of counsel are related
but not identical. A lawyer could receive a “reasonable fee” for very little
work, but a minimal performance might not provide effective assistance
of counsel in a particular case. The focus is thus not solely on providing
the lawyer with a reasonable fee, although that is important, but on
10In his reply brief, Simmons notes that the rule was amended after the district
court’s ruling. No one argued, however, that the amended rule provides the rule of
decision in this case. We note that the new rule has somewhat more flexibility than
what we have characterized as the hard cap in the rule before the court. The new rule
establishes a fee cap, but allows the fee cap to be exceeded in unusually complex cases.
We take no view, however, as to whether the new rule meets systemic constitutional
requirements imposed by article I, section 10.
33
showing that the system is designed to ensure that an indigent
defendant receives effective assistance of counsel. Here, we focus not on
establishing a system that provides reasonable compensation to a lawyer,
but on one that is designed to provide effective assistance of counsel.
See Makemson, 491 So. 2d at 1112 (noting what is at stake in a fee-cap
challenge was the right to effective representation rather than the
attorney’s right to fair compensation).
Based on our review of the case, we conclude that the plaintiff has
shown that if Iowa imposes a hard-and-fast fee cap of $1500 in all cases,
such a fee cap would in many cases substantially undermine the right of
indigents to effective assistance of counsel in criminal proceedings under
article I, section 10 of the Iowa Constitution. In reaching this
conclusion, we look at the facts of this case from three different
perspectives. All point to a profound chilling effect of the fee cap in this
case that, in effect, establishes a hard $1500 limitation on counsel.
First, we examine what the fee cap would mean for a full-time
attorney providing representation in criminal appeals. Under the NLADA
standards, a lawyer who handles appeals should limit his or her
workload to twenty-five appeals per year. Standards for the Defense,
Standard 13.12. Under this standard, a full-time lawyer working
pursuant to the appellate defender’s rule could receive a gross income of
$40,000. See id. From this figure, the attorney must pay for overhead
which, according to the Iowa State Bar Association survey offered into
evidence in this case, was, for the average Iowa lawyer, in excess of
$70,000. Even assuming that a criminal defense lawyer working on
appeals would have less overhead than the average Iowa lawyer, it seems
clear that it would be very difficult for a lawyer working under the state
public defender’s rule to earn a living.
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Second, we look at this case by considering the hourly rate paid to
Simmons for what the record establishes were reasonable and necessary
services. His hourly rates for the cases amount to $12.56 for Millam’s
appeal and $12.27 for Cromer’s appeal. Over the long run, payment of
such hourly rates to appellate counsel will have a chilling effect on
qualified lawyers taking this work and would discourage thorough
appellate preparation.
Third, we use our own expertise in considering the impact of a
$1500 fee cap for appellate work. State v. See, 387 N.W.2d 583, 586
(Iowa 1986) (stating that courts are experts in determining reasonable
fees); Smith, 394 A.2d at 838 (stating “it is peculiarly within the judicial
province to ascertain reasonable compensation” for court-appointed
counsel). No one can dispute that competent appellate representation
requires thorough mastery of the underlying facts, communications with
the client, research into applicable legal issues, consideration of which
issues to present on appeal, and then careful writing and rewriting. A
hard-fee cap of $1500 simply cannot provide adequate compensation in
many cases, including the two cases at issue here.
The implications of the inadequate compensation framework on the
provision of effective assistance of appellate counsel are multiple. First,
inadequate compensation will restrict the pool of attorneys willing to
represent indigent defendants. See State ex rel. Friedrich v. Circuit Ct.,
531 N.W.2d 32, 42–43, 44 (Wis. 1995); see also Coonrad, 362 N.W.2d at
201 (Schultz, J., concurring). Second, the low level of compensation
threatens the quality of indigent representation because of the perverse
economic incentives introduced into the criminal justice system. See,
e.g., Makemson, 491 So. 2d at 1112 (noting inextricable linkage between
compensation and defendants’ rights to effective assistance of counsel);
35
Stephan, 747 P.2d at 831 (observing inadequate compensation causes
inherent conflicts between attorney and client); Jewell, 383 S.E.2d at 544
(stating it is unrealistic to expect appointed counsel to remain insulated
from economic reality when losing money). Low compensation pits a
lawyer’s economic interest (recall Lincoln’s metaphor that a lawyer’s time
is his stock in trade) against the interest of the client in effective
representation. See Adele Bernhard, Take Courage: What the Courts Can
Do to Improve the Delivery of Criminal Defense Services, 63 U. Pitt. L. Rev.
293, 321 (2002) (declaring conflict of interest between attorney and client
in fixed-fee cases as “real”); see also Smith, 681 P.2d at 1381 (holding
fixed-price contract to represent defendants in county unconstitutional
for, among other things, failure to take into account time that the
attorney is expected to spend representing defendants, failure to provide
support costs, and failure to take into account the complexity of each
case); Olive v. Maas, 811 So. 2d 644, 652 (Fla. 2002) (stating mandatory
fee caps create “economic disincentive[s] for appointed counsel to spend
more than a minimal amount of time on case”).
D. Construction of Statutes to Avoid Constitutional
Infirmities. Ordinarily, we construe statutes to avoid potential
constitutional infirmity if we may reasonably do so. Visser, 629 N.W.2d
at 380; see also White, 545 N.W.2d at 557. We are also confident that
the legislature intended chapter 13B to implement Sixth Amendment
rights. See Iowa Code § 13B.2A (stating fee-limitation recommendations
“shall be consistent with the constitutional requirement to provide
effective assistance of counsel to those indigent persons for whom the
state is required to provide counsel”). In light of these principles, we
construe Iowa Code section 13B.4(4)(a) as not authorizing hard-fee caps
applicable in all cases. Instead, in order to avoid constitutional
36
difficulties, we construe the term “fee limitations” to authorize only a
range of hourly rates that might be charged, the procedure for making
fee claims, and soft-fee caps in categories of cases that may be rebutted
by a showing of reasonableness and necessity under Iowa Code section
13B.4(4)(d)(6). See Bailey, 424 S.E.2d at 508. As a result of this
interpretation, however, we find that the administrative rule in this case
establishing a hard-fee cap of $1500 for a criminal appeal violates the
statute and thus cannot be enforced against Simmons.
We also find that the implementing provision in Simmons’s
contract violates public policy. Although parties may incorporate
administrative rules as terms of a contract, the terms are not enforceable
if they are contrary to the intent of the enabling statute. See Bank of the
West v. Kline, 782 N.W.2d 453, 462 (Iowa 2010) (“It is well-established
Iowa law that contracts made in contravention of a statute are void, and
Iowa courts will not enforce such contracts.”). We will not enforce a
contractual provision that has a chilling effect on the constitutional
rights of criminal defendants and is inconsistent with the legislature’s
intent to provide indigent defendants with effective assistance of counsel.
V. Conclusion.
For the above reasons, we reverse the decision of the district court
and remand the matter to the district court for a determination of
reasonable and necessary fees that are consistent with the constitutional
mandate of effective assistance of counsel.
REVERSED AND REMANDED.
Kent A. Simmons Vs. State Public Defender
Combined Opinion