Proposed changes to the public defender application process

Currently there is a bill before the South Carolina Senate Judiciary Committee which would create some significant changes to the process by which indigent defendant’s apply for a public defender. If passed, the law would require an applicant to supply more information regarding potential sources of income. Even more, the law would treat a willful misrepresentation or omission in the application process as a felony, punishable by five years in prison.

As an interesting aside, appointed counsel would have to “comply with Rule 407 of the South Carolina Rules of Professional Conduct” if the attorney determines that the defendant has violated the reporting requirements. This part of the bill is particularly bizarre because there is no “Rule 407 of the South Carolina Rules of Professional Conduct.” Instead, there is Rule 407 of the South Carolina Appellate Court Rules which contains all of the Rules of Professional Conduct. Moreover, all attorneys are bound by Rule 407 regardless of whether a statute specifically references it, making this a strange bit of throw away language. While the Rules do contain language controlling when an attorney is permitted to report illegal conduct by a client, they still contain the ironclad confidentiality requirements to which all attorneys must adhere. In this regard, it’s unclear what the purpose of this particular language is.

In any event, this bill is intended to require more information to determine whether a defendant is in fact indigent. Of course, appointment of counsel to indigent defendants is a fundamental right as recognized in the seminal U.S. Supreme Court case Gideon v. Wainwright. In Gideon, the Supreme Court held that the state must “provide counsel for defendants financially unable to employ counsel, unless the right is competently and intelligently waived.” United States v. McVay, 32 F. App’x 661, 663 (4th Cir. 2002).  Building on this, Rule 602 of the South Carolina Appellate Court Rules establishes a presumption of indigence “if the person’s net family income is less than or equal to the Poverty Guidelines established and revised annually by the United States Department of Health and Human Services and published in the Federal Register.” As stated in the rule, this is a presumption which may be rebutted.