MSBA gives stamp of approval to $100 hike in lawyer license fee
by Barbara L. Jones Associate Editor
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Under legislation passed last month, the Minnesota Supreme Court may assess a public defender fee on licensed attorneys actively engaged in the practice of law. The fee can’t be more than $75 or less than the civil Legal Services fee and the money is to be deposited in a special revenue account used to fund public defense. Public defenders have asked the high court to approve a $75 assessment; Legal Services has jointly petitioned for the court to raise the Legal Services assessment from its current level of $50 to $75.
The reluctance of some MSBA members came not from an unwillingness to support the work of either group of lawyers, but a belief that lawyers should not be singled out to fund a constitutional obligation of government, providing a criminal defender for those without the funds to pay for their own. (The increased assessment for Legal Services was not controversial.)
The legislation came about as a way to alleviate, at least in part, reductions to public defense that have resulted in layoffs and cutbacks. During this past legislative session alone, the public defender board saw its budget slashed by $2 million.
Absent the $75 registration fee increase, the board contends it would be necessary to eliminate 35 public defenders, leading to average public defender caseloads more than double what the American Bar Association recommends.
A matter of principle
Outgoing President Michael Ford told the Assembly, “Legal Assistance and pro bono are within the social contract we as a profession are party to. The public defense is a constitutional obligation. That’s the difference. We want to make the record that we ain’t happy,” Ford said.
Some viewed the assessment as a trade for the Legislature not enacting a sales tax on legal services. (The Legislature chose not to act on such a proposal last session.)
If it was a “trade,” that trade may not work, warned Apple Valley attorney Michael Molenda. Although the Legislature didn’t approve the tax this session, lawyers ultimately could end up with both an assessment and a sales tax, he said. “We may have stuck the wrong oar in the water.”
Unringing the bell
Other lawyers warned that once this assessment is made, it will be very difficult to undo.
Minneapolis attorney Tom Tinkham opposed the resolution, but reluctantly. “There’s no principled way to draw a line when you start down this road,” he warned. “As a matter of principle the organization shouldn’t support this.”
Doctors aren’t taxed for medical care and teachers don’t pay for education, and there is no reason that lawyers should pay for a constitutional obligation of the state, Tinkham said, wondering what else the Legislature will decide is the sole responsibility of lawyers.
But the profession doesn’t have a good choice, said Minneapolis lawyer Fred Finch. “Tom Tinkham is right as a matter of policy. But how will we provide defenders to represent people?” he asked.
It is not effective to have judges appoint lawyers to represent the indigent pro bono because most civil lawyers won’t know how to do so, Finch said. Prosecutions will be stalled, and “if we can’t process criminal cases the civil calendar goes out the window,” he warned. (Several civil lawyers spoke up to emphasize that they could not provide an effective criminal defense.)
While the ideal approach would be to tell the Legislature “to do [its] job” and not tax lawyers, failure to support the resolution would be a disservice to the criminal justice system, Finch said.
What about us?
County attorneys are also hit by budget cuts because state aid to counties has been reduced and also because counties have been asked to pay the costs of representing parents in child abuse cases since the defenders will no longer do so.
Rice County Attorney Paul Beaumaster told the Assembly that he felt somewhat “abandoned” by the bar association, which he said did not issue a resolution expressing support for funding for county attorney offices. (Later he told Minnesota Lawyer that “abandoned” was too strong a word.) Beaumaster told Minnesota Lawyer that Rice County’s state aid was reduced by 5 percent.
Keith Carlson, executive director of the Minnesota Inter-County Association, told Minnesota Lawyer that general purpose aid received by counties will be cut in 2009 and 2010 under the governor’s proposed unallotments. The cut in 2009 would be $33 million out of an initially authorized $227.9 million. In 2010, the cut would be $67 million out of an initially authorized $231.9 million, or about 1.2 to 2.4 percent of county budgets. All counties except those under 5,000 population are affected.
Additionally, the Legislature enacted a requirement for counties to repay the state $32.7 million of aid received by counties in 2008 to offset the impact of federal aid cuts, Carlson said.
Ford said at the Assembly meeting that the MSBA had written to Gov. Tim Pawlenty urging him to remember the role of the county attorneys when balancing the budget, and copied that letter to the leaders of the Minnesota County Attorney Association. He reiterated support for the county attorneys at the convention. “We’ll follow up. If you need someone to come to a county board meeting, let us know,” Ford said.
Leo Brisbois, incoming president of the MSBA, told Minnesota Lawyer that the association would “continue to emphasize that part of the justice system when and if we get back to the Legislature.”
Currently, most attorneys on active status pay an annual fee of $217 to maintain their license. (The rules allow attorneys making less than $25,000 per year or those on military duty or inactive status to pay less.) Of the $217, $50 goes to the Legal Services Advisory Committee, which makes grants to Legal Services programs serving low-income clients.
