The Breath of the Unfee’d Lawyer: Statutory Fee Limitations and Ineffective Assistance of Counsel in Capital Litigation

This Note argues that fee limitations deprive indigent defendants of their right to effective assistance of counsel. Part I of this Note reviews state court decisions that address Sixth Amendment challenges to fee limitations, yet fail to address the broader concerns about the appointed counsel system. Part II considers the inherent disincentives and burdens fee limitations impose on attorneys and suggests that the limits threaten the indigent accused’s right to effective assistance of counsel. A comparison of the fee limitations and the time required to prepare and try a capital case reveals the gross inadequacy of statutory fee provisions. In Part III, this Note argues that, under the current system, the attorney’s duty as an officer of the court and the pro bono obligation are improperly invoked in defense of the fee limitations. This Note concludes that the state should shoulder the burden of indigent representation in capital litigation as an essential cost of the criminal justice system.