Attorney wins fees complaint
Ruling may aid public defenders

By Carol Sowers
©The Arizona Republic
Jan. 31, 2001

A private defense attorney has convinced a judge that he needed more money to fairly represent a poor client facing execution, setting the stage for other attorneys to demand better pay when they take indigent cases.


Maricopa County Superior Court Judge Kenneth Fields said in a ruling made public Tuesday that Mike Terribile was not paid reasonably by Maricopa County for his defense of Richard Rivas, a convicted murderer.

"The more I read this ruling, the happier I am," said Terribile, who had fought for months for the decision.

Fields' decision grew out of a two-day hearing earlier this month in which Terribile's lawyers put on a parade of witnesses decrying Maricopa County's poor pay of private attorneys hired by its Office of Court Appointed Counsel to defend poor suspects in criminal cases. Last summer, another judge denied Terribile's request for more money.

But this time Fields ordered Terribile and OCAC to negotiate a "reasonable amount of compensation" and report to him by Feb. 9.

Fields' ruling applies only to Terribile's case and does not carry the weight of a higher-court decision. But Terribile and other contract attorneys say they will have a powerful weapon to demand better pay from OCAC or take their pleas to a judge.

"This (ruling) allows these contract attorneys who represent indigent defendants to go to OCAC and tell them you are not paying me reasonably and I am going to the judge," Terribile said. "That's what I did this for."

Fields said that under his 1997 OCAC contract, Terribile was paid $72 per hour. But with about 100 more hours of work to do to prepare for the death-penalty phase of Rivas' case, the hourly rate would sink to less than $23 under the contract, amounting to unreasonable compensation.

Fields' ruling says that OCAC contracts with private attorneys are legal only because the court has the power to ensure that lawyers representing poor clients are being paid enough to protect constitutional rights to a sound defense.

That is a crucial point for some contract attorneys who say OCAC has put them in an ethical quandary by denying them enough money to properly represent their clients.

Mark Kennedy, a defense attorney who has headed the OCAC office part-time since September, said he could think of no cases in which lawyers' requests for more money had been turned down.

Terribile disagrees, saying that when he approached the agency, "They laughed me off."

Terribile's case targeted OCAC's so-called flat-fee contracts, which pay lawyers a certain amount for several cases. Lawyers have argued that the money doesn't stretch far enough and that they have had little luck in prying more out of the county. But Kennedy, who believes the county will consider appealing the ruling, argues that because some cases are resolved quickly, lawyers are paid fairly overall.


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