The good feelings from Monday's announcement by the Philadelphia courts of the first fee increase for court-appointed criminal defense lawyers in more than 20 years quickly faded after the city's deputy managing director for criminal justice said funding for the new fees was not yet in place.
"Yesterday's announcement should have been a day of celebration, but it isn't," Benjamin Lerner said Tuesday. "I tried to make it clear that the city does not have the money to fund the fee increase, something the judges' governing board was aware of when we went over the issue … several months before."
Lerner said the new fee schedule announced by Common Pleas Court President Judge Sheila Woods-Skipper would add between $4.5 million and $5 million to the $9 million currently paid by the city to reimburse lawyers appointed by the courts to represent poor clients.
Lerner said his office had been working with State Rep. John Taylor, a Northeast Philadelphia Republican, on legislation that would use part of the filing fees for civil litigation to fund the increased fees for appointed criminal lawyers.
That legislation has not yet been introduced, Lerner added.
The new Guaranteed Fee System goes into effect Saturday, the start of the city's and courts' fiscal year.
In a statement Tuesday responding to Lerner's comments, Woods-Skipper said that although she was "sympathetic to the city's funding issues, the court's role, as it pertains to this matter, is to ensure that lawyers are reasonably and fairly compensated for the essential role they play in guaranteeing access to justice and quality representation to those who cannot afford counsel."
Woods-Skipper said that Lerner, as one of the 17 members of her Guaranteed Fee System Working Committee, knew of the pending order and "the necessity to prioritize this initiative and identify an appropriate funding source. That is not the court's role or responsibility."
Like Lerner, Center City lawyer James F. Berardinelli, a former city prosecutor now in private practice, was a member of the committee that drafted the new fee schedule.
Berardinelli said he believes that the new fee schedule was announced because of the approaching effective date and because committee members were confident that Taylor's funding legislation would be enacted.
Berardinelli said he had talked with Taylor's office and the civil bar about the bill and knew of no objections.
He said he did not think implementing the new fee schedule without the funding in place would create an immediate financial problem because court-appointed lawyers do not submit their fee requests until after a case has ended.
"I don't think you'll see much of an impact for several months," Berardinelli said.
Lerner, 76, was head of the Defender Association of Philadelphia from 1975 to 1990 and was appointed a Common Pleas Court judge in 1996. He served 16 years as the judge in charge of the "homicide calendar room," handling pretrial issues for every homicide case in the city.
Lerner left the bench in February 2016 when Mayor Kenney offered him the newly created post of deputy managing director for criminal justice. It was a job Lerner said he wanted because he thought the time was right for "real criminal justice reform, more than just a phase."
One of Lerner's first assignments was as a member of Woods-Skipper's working committee. In addition to his new role as deputy managing director for criminal justice, as a judge Lerner oversaw the February 2012 fee increase for lawyers appointed in homicide and death-penalty cases since 1997.
Lerner said he and the city were "completely behind a long-deferred substantial increase in the guaranteed fee system" but worried that the premature announcement could cause unneeded problems.
Center City lawyer Ronald L. Greenblatt, immediate past chairman of the Philadelphia chapter of the Pennsylvania Association of Criminal Defense Lawyers and a member of its executive committee, said he did not know about the need for legislation to fund the new fee schedule.