DPA Morton Policy

I. THE LAW

A.        In Kentucky, a person eligible under KRS Chapter 31 to be represented by public defender counsel is also entitled "[t]o be provided with the necessary services and facilities of representation including investigation and other preparation." KRS 31.110(1). Even when a person is otherwise eligible for indigency status under KRS Chapter 31, that person is disqualified from indigency status, for all purposes, if he is represented by a retained lawyer who will receive any fee, regardless of the token amount involved, and regardless of the source of the fee. Morton v. Commonwealth, Ky., 817 S.W.2d 218 (1991). Only if the indigent person has obtained truly pro bono counsel, who "has neither sought nor obtained any fee or the promise thereof for legal services rendered or promised," would the client be indigent for purposes of obtaining under KRS Chapter 31 the necessary services and facilities of representation, such as expert witnesses and investigative services. Morton, supra.

B.        The Morton decision acknowledges that an indigent may not be denied the statutory and constitutional right to obtain necessary services other than counsel simply because the accused has been able to retain private counsel. Instead the Morton opinion indicates that the indigent defendant must be allowed to discharge his or her retained counsel and then proceed with appointed counsel and claim indigency status for the purpose of obtaining other necessary services at state expense.

II. THE PRACTICAL APPLICATION OF THE LAW

A.        A trial judge has the right to declare an otherwise qualified indigent person ineligible for indigency status under KRS Chapter 31, for any and all purposes, if the indigent is represented by a retained attorney who is not serving in a truly pro bono fashion. Such a ruling, however, would be erroneous unless the court permits the indigent person the opportunity to discharge retained counsel and elect to be represented by KRS Chapter 31 counsel. An indigent who elects to discharge his retained counsel and obtain public defender counsel would then be eligible for all the necessary services and facilities of representation. Without such a knowing and intelligent waiver on the record by the indigent, the court may not declare an indigent person ineligible for the necessary services and facilities of representation. Conversely, the court may not discharge the retained counsel of an indigent person, even where the fee is only minimal, and appoint public defender counsel to enable the indigent to have access to other services, such as defense experts and investigation assistance, without the knowing and intelligent consent of the indigent.

B.        At the minimum it is incumbent upon public defender administrators, whether full-time or part-time, to take the necessary steps to insure that the Morton decision is interpreted and applied in this manner, even though these rulings are normally rendered in cases which do not initially involve public defender representation.

III. DEFICIENCIES IN THE MORTON PROCEDURE

A.         Under Morton, an eligible person apparently has the right, due to his indigency status, to give up his retained attorney's representation and proceed under the auspices of KRS Chapter 31. When the eligible person's attorney has been paid a fee other than a token or modest sum, the discharge of that retained attorney will not only allow the discharged attorney to keep the unearned fee, but will require the Department of Public Advocacy to provide representation to the indigent as a condition precedent to granting the indigent access to other necessary services of representation at no cost to the indigent. The Morton procedure fails to factor into the equation both the loss of that fee to the accused or to his family and/or friends or the potential for a windfall to the retained attorney who is required to withdraw to enable the indigent accused access to state funds for reasonably necessary expenses, such as expert witnesses and an investigator.

B.         In these types of situations fiscal concerns about "increas[ing] the cost to the public by abusive utilization" and "the financial burden on the Commonwealth" are neither met nor resolved by the procedure available under Morton to indigent persons. Indeed, the Morton procedure, as applied to numerous cases, will allow indigents "to impoverish" themselves "by payments to attorneys and have the Commonwealth pay all ... costs," once the indigent elects to discharge the retained counsel to obtain access to other necessary defense services.

C.         The Morton resolution works fine in situations where the retained lawyer's fee is "so trifling as to be unworthy of consideration as any attorney fee" or "merely token," but breaks down when the retained attorney's fee is perceived as substantial. The public would look askance at a public defender system which allowed a private attorney to pocket a $15,000.00 fee from an indigent accused's family or friends, while the taxpayers would have to pay not only the costs of reasonably necessary expenses, but also the cost of public defender counsel to replace the retained criminal lawyer who has been relieved by the court.

IV. THE DEPARTMENT'S COMMITMENT TO REFINING MORTON

A.        To insure the refinement and revisions of the Morton precedent through litigation, the Department of Public Advocacy, in situations where the retained counsel's fee is significant or substantial in relationship to the type of case charged, is committed to seeking the following judicial relief: (1) the indigent person with retained counsel is eligible under KRS Chapter 31 for funds to obtain the necessary services and facilities of representation, such as an investigator and expert witnesses, upon a judicial finding of the defendant's indigency and reasonable necessity for those services; (2) the Department of Public Advocacy be appointed as co-counsel or second chair to assist in the representation of the indigent person; and (3) the motion of retained defense counsel to withdraw be denied.

B.        By having the Department of Public Advocacy appointed as co-counsel or second chair, the Department will be able administratively to reduce or increase its involvement depending on the amount of fee paid the retained counsel in relationship to the type of charges brought against the indigent. If, for example, the fee in a felony case was modest and the retained counsel had already expended many hours on investigation and pretrial motion practice, the Department may assign counsel to function as first chair or co-counsel. Conversely, where the retained counsel's fee in a serious felony case was substantial, the Department may assign counsel to serve as second chair, leaving the defense primarily in the hands of the already well paid retained counsel, to reduce the cost to the public of the indigent's actual representation.

C.        By requiring the retained counsel to remain on the case, neither the indigent defendant nor the public lose the knowledge and work of the retained attorney which has already been purchased by the indigent or his family and friends.

D.        The Department of Public Advocacy believes that there is a good faith argument, as delineated above, for an extension, modification or reversal of the Morton decision. Ky. Rules of Professional Conduct, Rule 3.1, SCR 3.130. See Leasor v. Redmon, Ky., 734 S.W.2d 462, 464 & 466 (1987). This policy as a directive applies only to public defender attorneys when functioning in an administrative capacity and has no application as a directive to public defenders when representing indigent clients.

E.        A public defender attorney assigned to represent an indigent who has elected to discharge retained counsel under Morton to obtain eligibility under KRS Chapter 31 is free, as a matter of strategy, to seek on behalf of the indigent reconsideration of the discharge of retained counsel, utilizing the substance of this policy.

V. NOTIFICATION OF POTENTIAL AND ACTUAL MORTON RULINGS

A.         Any person, whether an attorney or a non-lawyer support person acting under the provisions of KRS Chapter 31, aware of a situation where a Morton ruling may be or has been rendered should bring this to the attention of his or her immediate supervisor who shall notify the appropriate Division Director, Trials or Post-Trial, in Frankfort.


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