               IN THE SUPREME COURT OF IOWA

                              No. 07–0870

                        Filed November 24, 2010


KENT A. SIMMONS,

      Appellant,

vs.

STATE PUBLIC DEFENDER,

      Appellee.



      Appeal from the Iowa District Court for Scott County, David H.

Sivright, Jr., Judge.



      An attorney appeals from an order by the district court affirming a

decision by the state public defender to limit fees for representing

indigent defendants on appeal to $1500. REVERSED AND REMANDED.



      Kent A. Simmons, Davenport, pro se.



      Mark C. Smith, State Appellate Defender, for appellee.
                                         2

APPEL, Justice.

       In this case, we are asked to review determinations by the state

public defender rejecting the payment of fees to a court-appointed

appellate counsel in excess of $1500. In the underlying criminal cases,

appellate     counsel   successfully    obtained     reversal    of   the    criminal

convictions on the ground that the defendants were provided ineffective

assistance of counsel at trial. In response to a fee application in each

case, the state public defender determined that under his administrative

rules, counsel was not entitled to compensation in excess of $1500 per

appeal.

       The district court affirmed the decisions of the state public

defender,     largely   based    upon    the   existence    of   a    rule   limiting

compensation to $1500 per appeal except in cases that are so unusual

and factually or legally complex as to be “beyond the purview of both the

attorney and the state public defender.” See Iowa Admin. Code r. 493—

12.5 (2006). 1 For the reasons expressed below, we reverse the decision

of the district court and remand the case to the district court for further

proceedings.

       I. Factual and Procedural History.
       A. Nature of the Underlying Cases. The fee applications in these

cases arise out of challenges to convictions based on ineffective

assistance of counsel.          In both cases, attorney Kent Simmons was

appointed by the court to represent defendants in their appeals—one

involving a postconviction relief proceeding and the other involving a

direct appeal. The result in both cases was the reversal of convictions



       1Allcitations to the Iowa Administrative Code refer to the 2006 version unless
otherwise provided.
                                     3

carrying lengthy prison terms and the grant of new trials for the

defendants.

      In the first case, Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008),

Millam was convicted of two counts of sexual abuse. His original appeal

was dismissed as frivolous under Iowa Rule of Appellate Procedure 6.104

(now rule 6.1005).     Millam, 745 N.W.2d at 721.         Millam filed an

application for postconviction relief, asserting that his trial counsel

provided ineffective assistance of counsel by failing to present evidence of

a victim’s prior false accusation of sexual abuse. Id. The district court

granted the application for postconviction relief, but was reversed by the

court of appeals. Id. We granted further review, vacated the decision of

the court of appeals, affirmed the judgment of the district court, and

remanded the case for a new trial. Id. at 724.

      In the second case, State v. Cromer, 765 N.W.2d 1, 5 (Iowa 2009),

Cromer was convicted of third-degree sexual abuse. On direct appeal,

the defendant claimed that trial counsel provided ineffective assistance of

counsel because of trial counsel’s failure to object to the admission of a

tape-recorded conversation between the defendant and the victim.

Cromer, 765 N.W.2d at 6. The court of appeals affirmed the conviction.

Id. On further review, this court vacated the court of appeals decision,

reversed the district court judgment, and remanded the case for a new

trial. Id. at 12.

      B. Statutory, Regulatory, and Contractual Context of Indigent

Representation. Iowa Code section 13B.4(3) (2007) authorizes the state

public defender to contract with private attorneys to provide services to

indigent persons. The state public defender is directed to establish “fee

limitations” for particular categories of cases. Iowa Code § 13B.4(4)(a).
                                            4

The fee limitations are to be reviewed at least every three years. Id. In

establishing the fee limitations, the state public defender is directed to:
       consider public input during the establishment and review
       process, and any available information regarding ordinary
       and customary charges for like services; the number of cases
       in which legal services to indigents are anticipated; the
       seriousness of the charge; an appropriate allocation of
       resources among the types of cases; experience with existing
       hourly rates, claims, and fee limitations; and any other
       factors determined to be relevant.

Id. The state public defender is required to adopt rules to implement the

chapter. Id. § 13B.4(8).
       The administrative rule adopted by the state public defender is

found at Iowa Administrative Code rule 493—12.5. At the time of the

applications for fees in this case, the administrative rule provided that

fees for appeals for contract attorneys were limited to a cap of $1500,

with $1000 payable on the filing of a proof brief and the balance upon

the filing of the final brief. Iowa Admin. Code r. 493—12.5. The cap on
fees, however, was subject to the following exception: 2
              12.5(4). Unusually complicated cases. In an appeal
       that is unusually complicated, the attorney may negotiate
       with the state public defender for a fee in excess of the fees
       contained in rule 12.5 (13B, 815). However, this rule does
       not require that the state public defender agree to a higher
       fee in any particular case. The term “unusually complicated”
       as used in this rule means that the case is highly exceptional
       and complex from a legal or factual perspective and so
       atypical as to be beyond the purview of both the attorney and
       the state public defender. A case is not considered unusually
       complicated merely because the client is difficult to work

        2The provision of the administrative code establishing an exception to the fee cap

has since been amended to allow additional fees in cases that are “highly exceptional
and complex from a legal or factual perspective” without the requirement that a case be
“so atypical as to be beyond the purview of both the attorney and the state public
defender.” See Iowa Admin. Code r. 493—12.5(4) (2010). In addition, the permissible
fee on appeal has been increased to $1800 for each appellate case, with $1200 payable
upon filing of the proof brief. Id. r. 493—12.5 (2010). The remainder is paid after the
final brief is filed.
                                          5
      with or because the case took longer than the attorney
      anticipated. A case in which an application for further
      review is filed or a case in which oral argument is held at a
      location other than Des Moines is generally deemed to be
      “atypical” as that term is used in the rule.

Iowa Admin. Code r. 493—12.5(4) (emphasis added).

      In both cases, Simmons entered into a fee contract with the state

public defender.      Among other things, paragraph three of the contract

provided that the contractor would be paid “for reasonable and necessary

legal services performed by the Contractor under this Contract, pursuant

to administrative rule adopted by the State Public Defender.”
      Iowa Code section 13B.4(4)(d) provides an avenue for judicial

review of the action of the state public defender on a fee application.

According to this provision of the Code, “[n]otwithstanding chapter 17A,”

an action for judicial review may be filed with the district court by motion

with the court having jurisdiction over the original appointment. Iowa

Code § 13B.4(4)(d). “If a claim or portion of a claim is denied, the action

of the state public defender shall be affirmed unless the action conflicts

with a statute or an administrative rule.” Id. § 13B.4(4)(d)(5). “If a claim

is reduced for being excessive, the claimant shall have the burden to

establish by a preponderance of the evidence that the amount of

compensation        and   expenses   is   reasonable    and   necessary.”   Id.

§ 13B.4(4)(d)(6).

      C. Procedural Background.               On September 27, 2006, Simmons

filed fee claims in each case after filing his opening page proof brief as

permitted by the administrative rule. In Millam, counsel filed a claim for

a first installment of $3980. In Cromer, counsel filed a claim for a first

installment of $4040.        In response to the claims, the state public

defender cited the terms of the fee contract, noting that only $1000 was

due at the filing of the proof brief and that the claims were approved only
                                     6

in this reduced amount.      Simmons appealed both decisions to the

district court.

      The district court consolidated the appeals for hearing only. At the

original hearing, the court adjourned the proceedings to allow further

discussions between Simmons and the state public defender regarding

whether Simmons was entitled to compensation in excess of the fee cap

because the cases were unusually complicated.           The state public

defender determined that because Simmons conceded in his district

court pleadings that he was not entitled to additional compensation

under the “unusually complicated” exception to the flat fee, the state

public   defender   could   not   grant   him   additional   compensation.

Nonetheless, the state public defender offered Simmons an additional

$2500 to settle the cases, an offer Simmons rejected.

      As a result of the lack of resolution, the matter was heard again by

the district court.    Simmons presented evidence including billing

statements, excerpts from his fee contracts with the state public

defender, commentary by past Iowa State Bar Association President Alan

Fredregill on the inadequacy of fees paid to appointed counsel, a survey

of the Iowa State Bar Association indicating the average overhead per

lawyer for most Iowa attorneys exceeds $40 per hour, and an affidavit

from a criminal law attorney offering her opinion that the fees in both

cases were reasonable and necessary and stating her unwillingness to

work as a contract attorney in light of the fee cap.         Simmons also

presented copies of various pleadings and correspondence with the state

public defender. Simmons pointed out that if the decision of the state

public defender stood, he would be compensated at a rate of less than

$12 per hour for services that were necessary and reasonable on behalf
                                       7

of his client. With overhead costs of the average lawyer approaching $40

per hour, Simmons, in effect, was working for free.

      Simmons also filed a written professional statement.                Simmons

stated that brief writing was “a time-consuming, arduous task.”                    He

recalled seminars he attended where former justices of this court

emphasized the importance of selectively analyzing cases and writing law

and facts as a seamless web. All this, according to Simmons, takes time,

even in a case that cannot be characterized as “atypical.”                The rule,

according to Simmons, is “Prepare. Prepare. Prepare.”

      The district court upheld the decision of the state public defender.

According   to   the   district   court,   the   flat-fee   limitations     in     the

administrative rules were valid and not contrary to the statute. On the

constitutional question of whether the flat fee violated an indigent client’s

right to counsel, the district court, citing United States v. Dillon, 346 F.2d

633 (9th Cir. 1965), held that an attorney has an obligation to represent

indigents in criminal cases without payment of a fee, except as may be

provided by statute.

      On appeal, Simmons raises three interrelated claims.                       First,

Simmons claims that the administrative rule, which the state public

defender seeks to enforce, fails to carry out the legislature’s mandate for

providing reasonable fees for reasonable and necessary services and, as a

result, is unenforceable. Second, Simmons argues that the flat-fee rule

cannot be enforced because it is null and void on its face, or, in the

alternative, because it violates the enabling statutes as applied to the two

appeals. Finally, Simmons argues that the fee cap has a chilling effect

on the constitutional and statutory rights to effective assistance of

counsel.
                                       8

      II. Standard of Review.

      Our review of a decision by the district court reviewing the state

public defender’s denial of a claim for attorney’s fees is for correction of

errors at law. Iowa R. App. P. 6.907. To the extent a claim on appeal

involves constitutional issues, our review is de novo. Lewis v. Iowa Dist.

Ct., 555 N.W.2d 216, 218 (Iowa 1996).
      III. Overview of the State’s Obligation to Provide Effective
Assistance of Counsel.
      A. Relationship Between Statutory and Constitutional Issues.

In this case, Simmons raises both constitutional and statutory issues.

Ordinarily, we look to statutory issues first in order to avoid unnecessary

constitutional questions. State v. Fuhrmann, 261 N.W.2d 475, 477 n.1

(Iowa 1978).

      Looking solely at the language of the various statutory provisions,

this appeal appears to present a straightforward question. The statute

authorizes the state public defender to establish fee limitations for
certain categories of cases. Iowa Code § 13B.4(4)(a). Acting pursuant to

this statutory authority, the state public defender established fee

limitations by promulgating Iowa Administrative Code rule 493—12.5.

The state public defender then entered into contracts with Simmons that

incorporated the fee limitations. See id. § 13B.4(3) (permitting the state

public defender to contract with “persons admitted to practice law in this

state”). Chapter 13B further provides that the state public defender has

the authority to deny claims “not payable” under the contract and that

any such denial shall be affirmed on review unless it “conflicts with a

statute or an administrative rule.” Id. §§ 13B.4(4)(c)(2)(c), .4(4)(d)(5).

      The question, however, is more complicated. While we often decide

cases on statutory grounds to avoid constitutional infirmities, a corollary
                                       9

of this rule is the notion that our interpretation of statutes is often

powered by our desire to avoid the constitutional problem.                   Iowa

Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Visser, 629 N.W.2d 376, 380

(Iowa 2001); see also State v. White, 545 N.W.2d 552, 557 (Iowa 1996). If

fairly possible, a statute will be construed to avoid doubt as to

constitutionality. Thompson v. Joint Drainage Dist. No. 3-11, 259 Iowa

462, 468, 143 N.W.2d 326, 330 (1966); Jacobs v. Miller, 253 Iowa 213,

218, 111 N.W.2d 673, 676 (1961).

      As a result, the scope of the constitutional right to counsel

provided to indigent defendants under the state and federal constitutions

is intertwined and tends to merge with our interpretation of chapter 13B.

Even though we prefer to decide cases on statutory rather than

constitutional grounds, in this case we must have a firm understanding

of the constitutional icebergs that must be avoided in order to guide us

in our statutory interpretation.        Only if the statute can bear no

reasonable construction that avoids constitutional doubt do we proceed

definitively to decide the constitutional issue. See Thompson, 259 Iowa

at 468, 143 N.W.2d at 330; Miller, 253 Iowa at 218, 111 N.W.2d at 676.

      In this case, it is therefore necessary to review the right to counsel

under the United States and Iowa Constitutions. We then turn to the

proper interpretation of the statutes involved in this case implementing

the right to counsel, giving due consideration to the constitutional

contours present in this case.         Only if the statute cannot bear a

constitutional   construction    do    we   consider     the   merits   of    the

constitutional issues.

      B. Critical   Nature      of    the   Right   to     Counsel      in    the

Constitutional Scheme.       The right to counsel embraced in the Sixth

Amendment to the United States Constitution and article I, section 10 of
                                      10

the Iowa Constitution are not constitutional appendices. As noted by the

United States Supreme Court, “there is no right more essential than the

right to assistance of counsel.” Lakeside v. Oregon, 435 U.S. 333, 341,

98 S. Ct. 1091, 1096, 55 L. Ed. 2d 319, 326 (1978). This theme has

been reprised by scholarship on this issue:
       Without a lawyer’s aid, it is quite unlikely that an accused
       will be able to enjoy the advantages of the other enumerated
       rights. Without counsel, there is little chance for a fair battle
       between equally able adversaries. Counsel’s most basic role
       is to ensure that the confrontation between opponents
       contemplated by our Constitution actually does take place.

James J. Tomkovicz, The Right to the Assistance of Counsel: A Reference

Guide to the United States Constitution 128 (Jack Stark ed. 2002).

       The critical importance of the right to counsel is demonstrated by

two well-accepted legal doctrines. First, all defendants are entitled not

simply to counsel, but to effective assistance of counsel.          Cuyler v.

Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 1716, 64 L. Ed. 2d 333,

343–44 (1980); McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct.

1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970); Powell v. Alabama,

287 U.S. 45, 71, 53 S. Ct. 55, 65, 77 L. Ed. 158, 171–72 (1932). Form

does not prevail over substance.       While criminal defendants are not

entitled to perfect counsel, they are entitled to a real, zealous advocate

who will fiercely seek to protect their interests within the bounds of the

law.

       Second, if a person is indigent, the state has the constitutional

obligation to provide an effective lawyer at state expense. In Iowa, this

basic premise was recognized years ago in Hall v. Washington County, 2

Greene 473, 478–79 (Iowa 1850).        In this case, we held that a lawyer

appointed pursuant to statute was entitled to compensation, even

though the statute did not authorize compensation, in order to ensure
                                    11

that “the arm of the law will [not] be too short to accomplish its designs.”

Hall, 2 Greene at 476.      The United States Supreme Court came to

essentially the same conclusion regarding the right to counsel more than

one hundred years later in Gideon v. Wainwright, 372 U.S. 335, 343–45,

83 S. Ct. 792, 796–97, 9 L. Ed. 2d 799, 804–06 (1963).

      Substantively, what is expected of appellate counsel in order to be

effective has been considered by the United States Supreme Court in a

handful of cases. The Supreme Court has emphasized that in performing

appellate functions, counsel must be more than a showpiece or amicus

curiae, but a real advocate. Ellis v. United States, 356 U.S. 674, 675, 78

S. Ct. 974, 975, 2 L. Ed. 2d 1060, 1061 (1958). Appellate counsel must

examine the record to determine what potential errors are preserved for

appeal.   Anders v. California, 386 U.S. 738, 742–44, 87 S. Ct. 1396,

1399–1400, 18 L. Ed. 2d 493, 497–98 (1967).            Once counsel has

determined the potential issues, counsel must conduct adequate

research to determine which issues to press on appeal. McCoy v. Ct. of

Appeals of Wis., 486 U.S. 429, 438–39, 108 S. Ct. 1895, 1902, 100 L. Ed.

2d 440, 453–54 (1988). In most cases, counsel must consult with his

client regarding his right to appeal and the potential grounds for appeal.

Roe v. Flores-Ortega, 528 U.S. 470, 479–80, 120 S. Ct. 1029, 1035–36,

145 L. Ed. 2d 985, 997 (2000). Counsel must comply with all local rules

to ensure that the appeal is heard. Evitts v. Lucey, 469 U.S. 387, 396–

97, 105 S. Ct. 830, 836–37, 83 L. Ed. 2d 821, 830 (1985). These cases,

of course, do not present the entirety of the right to counsel, but are

simply markers delineating the scope of the right in specific contexts.

      C. Distinction Between Postconviction and Systemic Claims

Involving the Right to Counsel.           The most familiar avenue for

enforcement of the right to effective assistance of counsel is through a
                                         12

postconviction challenge to an underlying conviction. In considering a

postconviction challenge to a criminal conviction under the Sixth

Amendment, it is clear that not every claim of ineffective assistance, even

a meritorious one, requires reversal of a criminal conviction.                Under

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80

L. Ed. 2d 674, 693 (1984), the United States Supreme Court held that

before a conviction could be reversed, the defendant needed to show both

that counsel’s performance was “deficient,” and that the deficiency

caused actual prejudice. The performance of counsel is deficient if it falls

“below an objective standard of reasonableness . . . under prevailing

professional norms.” Id. at 688, 104 S. Ct. at 2064–65, 80 L. Ed. 2d at

693–94. In determining whether the acts or omissions of counsel were

constitutionally deficient under Strickland, strong deference must be

provided to choices of counsel that might, with the benefit of hindsight,

appear questionable. Id. at 689–90, 104 S. Ct. at 2065–66, 80 L. Ed. 2d

at 694–95.     In order to meet the prejudice prong under Strickland, a

defendant must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

       Because the relief sought was reversal of the accused’s conviction

and sentence, the application of the Strickland test is necessarily case

specific.   The Supreme Court has held that the Strickland approach

applies in determining whether to overturn a conviction due to a violation

of the right to appellate counsel as well as trial counsel. 3               Smith v.

       3In a number of cases, we have applied the Strickland test in determining

whether a conviction may be reversed on grounds of ineffective assistance of counsel.
See, e.g., State v. Canal, 773 N.W.2d 528, 532 (Iowa 2009); Anfinson v. State, 758
N.W.2d 496, 499–505 (Iowa 2008); State v. Schaer, 757 N.W.2d 630, 637–38 (Iowa
2008). In many of these cases, it appears that the parties made no distinction between
the Iowa Constitution and the United States Constitution. See Canal, 773 N.W.2d at
                                         13

Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764, 145 L. Ed. 2d 756, 780

(2000).

       There is, however, a second potential avenue for enforcement of the

right to counsel. This second avenue is based on the notion that in order

to ensure effective assistance of counsel for indigent defendants, the

state has an affirmative obligation to establish a system of indigent

defense that is reasonably likely to provide for zealous advocacy on

behalf of the criminal defendant.           A claim that a state’s method of

providing counsel to indigent defendants does not adequately ensure

effective assistance of counsel is often referred to as a systemic or

structural challenge. See Rodger Citron, Note, (Un)Luckey v. Miller: The

Case for a Structural Injunction to Improve Indigent Defense Services, 101

Yale L.J. 481, 486, 501–02 (1991).

       In cases involving systemic or structural challenges to the state’s

system of providing counsel, the focus is not on a post-hoc historical

review of a criminal trial, but is instead based on the structure through

which indigent defense is provided by the state. A structural challenge

involves a realistic assessment of whether the state has provided an

adequate framework for ensuring that the right to counsel is realized in

cases involving indigent defense.

       In cases involving systemic or structural challenges, the state’s

weighty interest in the finality of a specific criminal judgment is not

____________________
532 (referring generally to “ineffective-assistance-of-counsel” claims); Anfinson, 758
N.W.2d at 499 (same); Schaer, 757 N.W.2d at 637–38 (same). As a result, under our
prudential rules, we ordinarily consider the substantive standards under the Iowa
Constitution the same as those developed by the United States Supreme Court under
the Federal Constitution. State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa 2008); In re
Det. of Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000). Even in cases where no
substantive distinction has been advanced by the parties, we reserve the right to apply
the principles differently. State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009); Racing
Ass’n of Cent. Iowa v. Fitzgerald (RACI II), 675 N.W.2d 1, 6 (Iowa 2004).
                                          14

involved. As a result, a showing of “actual prejudice” in a particular case

is arguably not applicable; instead, what is required is a showing that

the structural feature being challenged threatens or is likely to impair

realization of the right to effective assistance of counsel.

       D. Nature of Structural Concerns Regarding Implementation

of Right to Counsel for Indigents.

       1. Concerns regarding state efforts to implement Gideon. In the

wake of Gideon, the states have developed various mechanisms to

provide indigent defendants with effective assistance of counsel.

Notwithstanding the efforts of the states, including Iowa, there have been

expressions of concern nationally regarding the degree to which the

efforts have been adequate.

       The American Bar Association (ABA) in particular has been

concerned about the quality of criminal representation for indigent

defendants, issuing repeated reports and opinions raising serious

questions about the quality of indigent defense across the nation. 4 In

       4For  example, in 1982, the ABA held a hearing to study the funding of indigent
defense services. The subsequent report concluded that “the financing of criminal
defense services for indigents is generally inadequate.” Gideon Undone: The Crisis in
Indigent Defense Funding, Summary, 1982 A.B.A. Standing Comm. Legal Aid & Indigent
Defendants, available at http://www.abanet.org/legalservices/downloads/sclaid/
indigentdefense/gideonundone.pdf. In 1993, the ABA Section on Criminal Justice
received a report regarding the status of indigent defense. See Richard Klein & Robert
Spangenberg, The Indigent Defense Crisis, 1993 A.B.A. Sec. of Crim. Just. According to
the report, the level of funding for a majority of the indigent defense programs around
the country “has reached the crisis level and threatens the effective implementation of
the Sixth Amendment right to counsel.” Id. at 1. In 2004, the ABA published a report
entitled Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice. This
document declared that the funding for indigent defense services was “shamefully
inadequate” and that “indigent defense . . . remains in a state of crisis, resulting in a
system that lacks fundamental fairness and places poor persons at constant risk of
wrongful conviction.” See Gideon’s Broken Promise: America’s Continuing Quest for
Equal Justice—A Report on the American Bar Association’s Hearings on the Right to
Counsel in Criminal Proceedings, 2004 A.B.A. Standing Comm. on Legal Aid & Indigent
Defendants 38.
       In 2006, the ABA Standing Committee on Ethics and Professional Responsibility
issued an opinion calling on public defenders to withdraw from representation when
                                           15

general, the ABA has expressed concerns about inadequate financing of

defense services for indigents and case overloads in public defender

offices. 5   In addition to the ABA, academic criticism of structural

deficiencies in the provision of legal defense to indigents has been

common.       Only a little more than a decade after Gideon, a respected

jurist wrote powerful commentary regarding the inadequacy of criminal

defense services.       See David L. Bazelon, The Realities of Gideon and

Argersinger, 64 Geo. L.J. 811 (1976); David L. Bazelon, The Defective

Assistance of Counsel, 42 U. Cin. L. Rev. 1 (1973). Since then, numerous

other articles have excoriated the quality of appointed counsel for

indigent defendants. See, e.g., Stephen B. Bright, Neither Equal Nor Just:

The Rationing and Denial of Legal Services to the Poor When Life and

Liberty are at Stake, 1997 Ann. Surv. Am. L. 783 (1997); Richard Klein,

The Eleventh Commandment: Thou Shalt Not Be Compelled to Render the

Ineffective Assistance of Counsel, 68 Ind. L.J. 363 (1993); Richard Klein,

The Emperor Gideon Has No Clothes: The Empty Promise of the

Constitutional Right to Effective Assistance of Counsel, 13 Hastings Const.

L.Q. 625 (1986). As noted by one author, everyone agrees that Gideon

was rightly decided, and no one believes it has been implemented.

Donald A. Dripps, Ineffective Assistance of Counsel: The Case for an Ex



____________________
caseloads become unmanageable. ABA Comm. on Ethics and Prof’l Responsibility,
Formal Op. 06-441 (2006), available at http://www.abanet.org/legalservices/sclaid/
defender/downloads/ethics_opinion_defender_caseloads_06_441.pdf. Finally, in 2009,
a distinguished group of bipartisan and ideologically diverse lawyers and judges
sounded a warning siren for the states. See Nat’l Right to Counsel Comm., Justice
Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, Report of the
National Right to Counsel Committee (April 2009), available at http://
www.constitutionproject.org/manage/file/139.pdf. They declared that the resources
made available for indigent defense were grossly inadequate. See id. xi.
        See footnote 3, above.
       5
                                          16

Ante Parity Standard, 88 J. Crim. L. & Criminology 242, 307–08 (1997)

[hereinafter The Case for an Ex Ante Parity Standard].

       None of the above authorities focuses on Iowa and, as a result, no

conclusions on the state of indigent defense in Iowa may be drawn from

these studies. 6 The authorities do suggest, however, that we should be

vigilant in ensuring indigent defendants receive the effective assistance of

appellate counsel that the constitution demands. Otherwise, as noted by

this court in a case requiring the state to pay for the cost of statutorily

required counsel, “the arm of the law will be too short to accomplish its

designs.” Hall, 2 Greene at 476.

       2. Efforts to address structural problems through standards for

indigent representation.        In order to put some spine into the highly

important but rather vague concept of ineffective assistance of counsel,

professional organizations have developed standards for lawyers engaged

in the criminal defense of indigent persons. For example, in 1973, the

National Legal Aid and Defender Association (NLADA) developed workload

standards for public defenders, indicating that a public defender should

be engaged in no more than twenty-five appeals per year in order to do

the job adequately.        See Nat’l Advisory Comm’n on Criminal Justice

Standards & Goals, Nat’l Legal Aid & Defender Ass’n, Standards for

Defense, Standard 13.12 (1973), available at http://www.nlada.org/




       6Indigent  defense in Iowa, however, has not been free from professional
criticism. In 1999, Professor Robert Rigg published a study that focused in part on the
provision of criminal defense services in Iowa. Among other things, Rigg noted the low
rates of criminal counsel compared to counsel retained by the state for other matters
and the high caseload carried by at least some public defenders in Iowa. See Robert
Rigg, The Constitution, Compensation, and Competence: A Case Study, 27 Am. J. Crim.
L. 1, 27–34 (1999). Rigg declared that the controlling factor in the Iowa system is “cost
containment rather than client representation.” Id. at 35.
                                       17

Defender/Defender_Standards/Standards_For_The_Defense [hereinafter

Standards for the Defense].

      Also, if Gideon is implemented by contracting with lawyers, ABA

and NLADA standards require that the lawyers receive reasonable

compensation.     ABA standards require reasonable compensation for

attorneys under contract.      ABA Criminal Justice Section Standards,

Providing Defense Services, Standard 5-3.3(b)(ix) (Am. Bar Ass’n 3d ed.

1992), available at http://www.abanet.org/crimjust/standards/defenses

_blk.html.   The NLADA standard requires compensation at a rate that

reflects customary compensation in the jurisdiction for similar services,

the time and labor required by the attorney, and the degree of

professional skill and experience of the attorney.             National Study

Comm’n on Defense Servs., Nat’l Legal Aid & Defender Ass’n, Guidelines

for Legal Defense Systems in the United States, Guideline III-3.1 (1976).

      E. Potential        Litigation        Approaches       to      Structural

Shortcomings.

      1. Introduction. For the most part, the proposed standards have

not been expressly or impliedly adopted by local jurisdictions.            As a

result of the persistent presence of structural problems and the perceived

inadequacy of indigent defense, a number of academics have suggested

advocates resort to the courts to remedy the situation. See Jacqueline

McMurtrie, Unconscionable Contracting for Indigent Defense: Using

Contract Theory to Invalidate Conflict of Interest Clauses in Fixed-Fee

Contracts, 39 U. Mich. J.L. Reform 773, 776, 820–21 (2006) (suggesting

use   of   contract-law   concepts     to   invalidate   fixed-fee   contractual

provisions); see also Note, Gideon’s Promise Unfulfilled: The Need for

Litigated Reform of Indigent Defense, 113 Harv. L. Rev. 2062 (2000)
                                     18

[hereinafter Gideon’s Promise Unfulfilled]; Margaret H. Lemos, Note, Civil

Challenges to the Use of Low-Bid Contracts for Indigent Defense, 75 N.Y.U.

L. Rev. 1808 (2000) [hereinafter Civil Challenges].       These authorities

generally urge courts to explore judicial remedies that do not involve

efforts to reverse criminal convictions and thus are not subject to the

relatively demanding Strickland test.

      2. Federal case law. There has not been a large body of federal

litigation dealing with structural problems in indigent defense. Part of

the reason may be that the federal government has been more generous

in providing resources for indigent defense.        One case of interest,

however, is Luckey v. Harris (Luckey I), 860 F.2d 1012 (11th Cir. 1988).

In this case, indigent persons exposed or potentially exposed to the

criminal justice system and their lawyers brought a class action seeking

injunctive relief on the ground that Georgia’s system of indigent defense

violated the Sixth Amendment. Luckey, 860 F.2d at 1013. The lawsuit

sought to limit the number of cases an attorney could handle, set

standards for compensation for court-appointed counsel, and set

minimum standards for effective assistance of counsel. Id. at 1014. The

district court originally dismissed the case for failure to state a claim and

for violating the Eleventh Amendment. Id. at 1013. The district court

ruled that the plaintiffs’ action must be dismissed because they failed to

show that the Georgia indigent defense system produced “across-the-

board” violations of the Sixth Amendment under Strickland. Id. at 1016.

      In reversing the district court, the Court of Appeals for the

Eleventh Circuit held that the Strickland standard did not apply in the

case. Id. at 1017. The court stated:
      [D]eficiencies that do not meet the “ineffectiveness” standard
      may nonetheless violate a defendant’s rights under the
      [S]ixth [A]mendment. In the post-trial context, such errors
                                          19
       may be deemed harmless because they did not affect the
       outcome of the trial.      Whether an accused has been
       prejudiced by the denial of a right is an issue that relates to
       relief—whether the defendant is entitled to have his or her
       conviction overturned—rather than to the question of
       whether such a right exists and can be protected
       prospectively.

Id. In short, the right to counsel according to the Eleventh Circuit does

not simply protect the defendant from trial outcomes.                     The court

concluded that the Strickland “concern[] for finality, concern that

extensive post-trial burdens would discourage counsel from accepting

cases, and concern for the independence of counsel” did not apply in a

setting where only prospective relief was sought. Id.

       Ultimately, the Luckey litigation was brought to a halt through

application of Younger abstention. Luckey v. Miller (Luckey V), 976 F.2d

673, 679 (11th Cir. 1992); see generally Younger v. Harris, 401 U.S. 37,

91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) (articulating the abstention

doctrine).    Nonetheless, the Eleventh Circuit decision stands for the

proposition that even federal courts may recognize that Strickland

prejudice standards do not apply with respect to structural challenges

under the Sixth Amendment to the means of providing indigent defense. 7

       3. State court cases. A number of theories have been advanced in

state courts to challenge fee caps on attorneys who represent indigent

defendants. These theories include those based in “takings” law, on the

inherent powers of the courts to supervise the judicial process, and on


       7The issue of Strickland’s applicability in a structural challenge has not been

tested before the United States Supreme Court. Justice Blackman, however, has
expressed concern about structural obstacles to effective assistance of counsel. In
McFarland v. Scott, 512 U.S. 1256, 114 S. Ct. 2785, 129 L. Ed. 2d 896 (1994), Justice
Blackman decried a denial of certiorari in a death penalty case, noting “the absence of
funds to compensate lawyers prevents even qualified lawyers from being able to present
an adequate defense.” McFarland, 512 U.S. at 1257, 114 S. Ct. at 2786, 129 L. Ed. 2d
at 897 (Blackmun, J., dissenting).
                                      20

the constitutional requirements of providing effective assistance of

counsel in criminal proceedings. All of the theories have one common

function—avoiding the application of the high Strickland standards in

dealing with the systemic problems related to the provision of criminal

defense.

      Some courts have invalidated fee caps on grounds that the fee caps

amount to a taking of the property of attorneys in violation of due

process of law. See, e.g., DeLisio v. Alaska Superior Ct., 740 P.2d 437,

442–43 (Alaska 1987); Arnold v. Kemp, 813 S.W.2d 770, 775 (Ark. 1991);

State ex rel. Stephan v. Smith, 747 P.2d 816, 842 (Kan. 1987); State v.

Lynch, 796 P.2d 1150, 1158 (Okla. 1990); see also State ex rel. Partain v.

Oakley, 227 S.E.2d 314, 319 (W. Va. 1976), superseded by statute,

W. Va. Code § 29-21-1 (1989), as recognized in State ex rel. White v.

Trent, 519 S.E.2d 649, 652 (W. Va. 1999).             These cases, however,

invariably   involve    situations   where   the   attorney   is   involuntarily

appointed to represent the indigent defendant, a circumstance that is not

present in this case.

      Other courts have invalidated fee caps on the ground that they

unduly invade the power of the courts to regulate the practice of law and

judicial proceedings. See, e.g., White v. Bd. of County Comm’rs, 537 So.

2d 1376, 1380 (Fla. 1989) (explaining that the judiciary’s “inherent

power to award attorney’s fees in excess of the . . . statutory fee cap”

permits a court to award fees in excess of the statutory maximum);

Makemson v. Martin County, 491 So. 2d 1109, 1111 (Fla. 1986) (finding

that a statutory fee limitation is unconstitutional “when applied in such

a manner as to curtail the court’s inherent power to ensure the adequate

representation of the criminally accused”); In re Recorder’s Ct. Bar Ass’n,

503 N.W.2d 885, 897 (Mich. 1993) (striking down fixed-fee system and
                                        21

directing development of an alternate system of payment); Smith v. State,

394 A.2d 834, 838 (N.H. 1978) (declaring what constitutes reasonable

compensation    is   peculiarly    within    the      judicial    province        and

determination of reasonableness is a judicial power implicitly in the

constitutional scheme); Lynch, 796 P.2d at 1163 (reasoning that the

Oklahoma     Supreme    Court’s    “constitutional       responsibilities”        and

“inherent   power”   compelled    the    conclusion     that     the   practice    of

compulsory appointment of attorneys without providing adequate

compensation amounted to an unconstitutional taking of private

property). The common thread in these cases is that the judiciary has

the inherent constitutional responsibility over the judicial process and

that responsibility extends to ensuring that indigent criminal defendants

are provided adequate counsel.

      A few courts have considered challenges to fee structures on due

process and ineffective-assistance-of-counsel grounds. For example, in

State v. Smith, 681 P.2d 1374, 1376 (Ariz. 1984), the Arizona Supreme

Court considered the validity of a low-bid contract for the provision of

services to indigent defendants in Mohave County, Arizona. The court

concluded the system as implemented violated federal constitutional

rights to due process and assistance of counsel.           Smith, 681 P.2d at

1381. Among other things, the court noted that the system violated the

ABA standards for criminal justice and the NLADA guidelines by failing

to consider the time each attorney must spend in representation. Id. at

1379–81. The court concluded that there would be a presumption that

the system adversely affected the adequacy of representation in Mohave

County. Id. at 1384; see also Suzanne Mounts, The Right to Counsel and

the Indigent Defense System, 14 N.Y.U. Rev. L. & Soc. Change 221, 226–
                                          22

27, 231 (1986) (arguing for shifting burdens of proof where systemic

shortcomings are present in indigent-defense representation).

       Sometimes the pressure of potential constitutional violations has

influenced the interpretation of a state statute authorizing payment of

fees for indigent defense. Specifically, in Bailey v. State, 424 S.E.2d 503,

508 (S.C. 1992), the court held that controlling statutes could not be

interpreted as establishing absolute maximum remuneration for costs

and fees because they do not provide adequate compensation to ensure

effective assistance of counsel in capital cases. And, in May v. State, 672

So. 2d 1307, 1308–09 (Ala. Crim. App. 1993), the court avoided the

prospect of declaring a fee cap unconstitutional by a generous

construction of the underlying statute to allow reimbursement for

“overhead expenses.” See also Wilson v. State, 574 So. 2d 1338, 1340

(Miss. 1990) (noting that courts will construe a maximum-fee statute “ ‘to

enable [the statute] to withstand the constitutional attack and to carry

out the purpose embedded in the [statute]’ ” (quoting Frazier v. State ex

rel. Pittman, 504 So. 2d 675, 708 (Miss. 1987))). 8

       While the structural ineffective-assistance-of-counsel cases involve

multiple theories, there are several themes that run throughout them.
First, the cases see a linkage between compensation and the provision of

effective assistance of counsel. See, e.g., Makemson, 491 So. 2d at 1114



       8In  contrast, in State v. Bacon, 658 A.2d 54, 66 (Vt. 1995), an attorney assigned
a complex murder case at a rate of $25 per hour sought to withdraw because the state
failed to pay his fee in a timely manner. Counsel also failed to test DNA evidence or
cross-examine the State’s DNA experts. Bacon, 658 A.2d at 67. On appeal, a claim of
conflict of interest was raised. Id. The court found that the conflict was present, but
held that there was no prejudice under Strickland. Id. at 68. For other cases applying
the Strickland test to structural challenges, see Stephan, 747 P.2d at 831–32; State v.
Robinson, 465 A.2d 1214, 1216 (N.H. 1983); Madden v. Township of Delran, 601 A.2d
211, 215 (N.J. 1992); State ex rel. Friedrich v. Circuit Ct., 531 N.W.2d 32, 40–44 (Wis.
1995).
                                    23

(“The link between compensation and the quality of the representation

remains too clear.”); Jewell v. Maynard, 383 S.E.2d 536, 544 (W. Va.

1989) (concluding that it is unrealistic to expect appointed counsel to

remain “insulated from the economic reality of losing money each hour

they work”). Second, they challenge the notion that members of the bar

have an ethical obligation to pick up the gauntlet and provide assistance

of counsel in light of the state’s default. See, e.g., Makemson, 491 So. 2d

at 1114–15 (stating that pro bono implementation is haphazard, is

unfairly imposed in practice, and causes attorneys to bear the burden of

the state because of the increasing complexity and rising costs of cases);

Stephan, 747 P.2d at 835–36 (explaining that the obligation to provide

counsel for indigent defendants is that of the state); Jewell, 383 S.E.2d

at 543 (declaring notion that lawyers had obligation to provide services to

indigents free of charge has been “decimated” in recent scholarship

establishing the narrowness of English tradition and lack of applicability

in modern day setting).       Third, they regard separation-of-powers

concepts as not presenting an obstacle to judicial action to ensure that

the right to counsel as guaranteed by state and federal constitutions is

effectively honored. See, e.g., Stephan, 747 P.2d at 842–43 (finding no

separation-of-powers issue in determining reasonable fee for indigent

defense); Wilson, 574 So. 2d at 1342 (Robertson, J., concurring) (“If an

adequate courthouse is essential to the administration of justice, so are

competent counsel.”); Smith, 394 A.2d at 838 (noting that if the

obligation to represent indigent defendants springs from judicial

authority, so too does authority to determine reasonable compensation).

      4. Iowa case law. The first Iowa cases dealing with compensation

of court-appointed attorneys indicated that the courts had common law

power to provide for compensation of appointed counsel.        See Hall, 2
                                   24

Greene at 476–78.     In Hall, a case decided before the constitution of

1857 was adopted, the Iowa court held that where services were

performed by a lawyer appointed
      in obedience to direct mandate of statutory law, under the
      direction of a tribunal to which the enforcement of that law
      is committed, reasonable compensation to the person who
      performs that service is a necessary incident; otherwise, the
      arm of the law will be too short to accomplish its designs.

Id. at 476; see generally Robert Rigg, The Constitution, Compensation,

and Competence: A Case Study, 27 Am. J. Crim. L. 1, 47–48 (1999)

(concluding that “[u]nderfunding abandons the Sixth Amendment’s
mandate that every citizen charged with a crime deserves effective

assistance of counsel”).

      This court followed Hall almost a century later in Ferguson v.

Pottawattamie County, 224 Iowa 516, 278 N.W. 223 (1938). In Ferguson,

the court held that court-appointed lawyers who represented two juvenile

defendants were entitled to compensation for their services from the

public notwithstanding the lack of any specific statutory authorization

for compensation. 224 Iowa at 519–20, 278 N.W. at 224.

      After Gideon, this court considered a number of cases involving

fees for defense counsel.   In Soldat v. Iowa District Court, 283 N.W.2d

497, 498 (Iowa 1979), the court considered the meaning of legislation

authorizing reasonable compensation for indigent defense decided by the

trial court on a case-by-case basis. The court found that “reasonable”

fees did not mean compensation normally charged for a privately

retained case. Soldat, 283 N.W.2d at 499. The court reasoned that a

discount from a fee that would be obtained in a private case was

appropriate in light of the ethical obligation of lawyers to represent the

defenseless and the oppressed. Id. at 499–500.
                                        25

        In Hulse v. Wilfvat, 306 N.W.2d 707, 708 (Iowa 1981), the court

considered reasonable compensation for appointed counsel under a

statute that defined reasonable compensation as including “the ordinary

and customary charges for like services in the community.” The court

determined that, under this statute, full compensation for reasonably

necessary services was appropriate but emphasized that a factor to be

considered was certainty of payment. Hulse, 306 N.W.2d at 712.

        The issue of permissible restrictions on fees for representation of

indigent defendants in criminal proceedings was revisited in Coonrad v.

Van Metre, 362 N.W.2d 197 (Iowa 1985). In Coonrad, the majority of the

court held that a fee of $40 per hour—awarded pursuant to a judicial

district rule establishing $40 as an average to be paid for criminal

defense—was not an abuse of discretion, notwithstanding testimony from

other attorneys that they received fees of $50 to $75 per hour for similar

work.     Coonrad, 362 N.W.2d at 199–200.        In a concurring opinion,

Justice Schultz declared,
               I believe that it is self-evident that to attract able
        counsel to accept court appointments, the State must
        provide adequate remuneration. As in any other profession,
        the skills and abilities of attorneys that practice law vary.
        The more able attorneys can command larger fees. Despite
        ethical considerations, it is obvious that modern day law
        offices have high overhead which must be paid from the fees
        that a lawyer can generate.
Id. at 201 (Schultz, J., concurring).

        In September 1985, the court issued guidelines on costs of court-

appointed counsel. The guidelines generally provided for a procedure for

establishing fees for court-appointed counsel. See 1985 Iowa Supreme

Ct. Supervisory Order, In re Costs of Court-Appointed Counsel ¶ 1. The

guidelines expressly stated that there should be no discount based upon

an attorney’s duty to represent the poor.        Id. ¶ 6.   The guidelines
                                       26

established fee caps for classes of criminal offenses which could,

however, be exceeded with prior approval of the district court. Id. ¶ 4(b).

The guidelines expressly stated that they did not “prevent public bodies

from establishing public defender offices pursuant to statute or from

entering contracts for attorney services consistent with constitutional

and statutory constraints.” Id. ¶ 2.

      Compensation afforded under the guidelines was challenged in

Postma v. Iowa District Court, 439 N.W.2d 179 (Iowa 1989). In Postma,

an appointed lawyer sought to recover $6546 at $60 per hour. Postma,

439 N.W.2d at 180. The district court, however, approved only payment

at $45 per hour up to the cap of $1000 for the type of crime involved. Id.

In Postma, the lawyer’s claim for additional compensation failed for two

reasons.   First, the lawyer failed to obtain prior approval for a fee in

excess of the categorical caps as required by the rule.          Id. at 182.

Second, the court held that there was no chilling effect with respect to

state or federal constitutional rights in light of the fact that the defendant

was found not guilty. Id.

      Fee issues were revisited in Lewis.          In this case, attorneys

challenged the guidelines as violating equal protection principles. Lewis,

555 N.W.2d at 217. The court noted that the court-appointed attorneys

prosecuting the case had standing to challenge the constitutionality of

the statutory fee schedule because the rights of the attorneys were

“inextricably linked” with the rights of indigent defendants. Id. On the

merits, however, the court rejected the plaintiffs’ claims. Id. at 219–21.

The court inaccurately stated that Sixth Amendment claims in similar

cases “have not been [found] tenable unless the court-appointed counsel

is totally uncompensated or unless the bar is required to assume the

entire burden of indigent defense.” See id. at 220. The court apparently
                                      27

believed that the Strickland standard of prejudice for postconviction relief

actions applied in a claim for pretrial relief, rejected application of any

presumption of ineffectiveness, and suggested that the plaintiffs’ case

was deficient because there was no showing that a particular litigant was

placed at a disadvantage by the fee guidelines. See id. at 219–21. The

court cited with approval Ex parte Grayson, 479 So. 2d 76 (Ala. 1985),

one of the harsher Sixth Amendment cases where the Alabama Supreme

Court upheld an expense maximum of $500 and an attorney fee

maximum of $1000 in capital cases. See id. at 219–20; see also Ex parte

Grayson, 479 So. 2d at 79–80.
      IV. Construction     of   Statutes       in   Light     of    Constitutional
Principles.

       A. Introduction. We now consider the proper construction of the

various provisions of Iowa Code chapter 13B in light of the potential

constitutional   implications   of   article   I,   section    10    of   the   Iowa

Constitution. In order to do so, we examine the potential merit of the

underlying constitutional claims. In this undertaking, it is not necessary

to make an express holding on the constitutional issue. See Thompson,

259 Iowa at 468, 143 N.W.2d at 330; Miller, 253 Iowa at 218, 111 N.W.2d

at 676. We need only find that the constitutional issues are sufficiently

serious that the statute should be interpreted in a fashion to avoid

constitutional difficulties, if reasonably possible.          See Thompson, 259

Iowa at 468, 143 N.W.2d at 330; Miller, 253 Iowa at 218, 111 N.W.2d at

676.

       B. Obstacles to Consideration of Constitutional Issues.                   We

first clear away some procedural underbrush. There is some question

regarding whether a lawyer has standing to assert the constitutional

claims arising from systemic right-to-counsel claims.               See Portman v.
                                   28

County of Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993). We have held,

however, that a lawyer appointed to represent an indigent defendant has

standing to assert the constitutional claims of defendants’ rights under

article I, section 10 of the Iowa Constitution. Lewis, 555 N.W.2d at 218–

19.   We have found that the issues of a defendant’s right to effective

assistance of counsel and an attorney’s right to fair compensation are

“inextricably linked.” Id. at 219; see also Makemson, 491 So. 2d at 1112.

      There is also a question of whether Simmons must show

Strickland-type prejudice in this case in order to raise constitutional

issues. Where, as here, we are interpreting a statute to avoid potential

constitutional problems, we do not believe a showing of “actual

prejudice” in the case before us is required.       Indeed, through our

construction of the applicable statutes, we are seeking to avoid potential

prejudice in the future. Although Simmons has already performed his

legal service, our consideration of the constitutionality of the hard-fee

cap is akin to a prospective challenge that requires establishment of an

ex ante or before-the-fact standard. See The Case for an Ex Ante Parity

Standard, 88 J. Crim. L. & Criminology at 243 (concluding that the

“Strickland inquiry into counsel’s effectiveness ex post should be

supplement[ed] by an ex ante inquiry into whether the defense is

institutionally equipped to litigate as effectively as the prosecution.”);

Gideon’s Promise Unfulfilled, 113 Harv. L. Rev. at 2070–71 (citing Smith,

681 P.2d at 1378 for the propositions that the prospective inquiry into

the method of providing counsel to indigent defendants is “both different

from the retrospective fairness inquiry and also necessary for compliance

with the Sixth Amendment”). The constitutional concerns in this case

are not based upon the performance of defense counsel but upon the

possibility that a statutory framework through which counsel is provided
                                           29

has potential constitutional infirmities.            See Wallace v. Kern, 392 F.

Supp. 834, 847 (E.D.N.Y. 1973), vacated on other grounds, 481 F.2d 621

(2d Cir. 1973); Civil Challenges, 75 N.Y.U. L. Rev. at 1824.

       We conclude that the Strickland prejudice test does not apply in

cases involving systemic or structural challenges to the provision of

indigent defense counsel that do not involve efforts to vacate criminal

convictions. As pointed out in Luckey, the weighty policy reasons for the

high Strickland bar—namely, finality in criminal judgments and the fear

of a rash of ineffective-assistance claims—are simply not present here. 9

860 F.2d at 1017; see also Pruett v. State, 574 So. 2d 1342, 1359 (Miss.

1990); N.Y. County Lawyers’ Ass’n v. State, 745 N.Y.S.2d 376, 384 (Sup.

       9The  approach of Strickland to ineffective-assistance claims in the postconviction
context has its detractors. In his dissent, Justice Marshall suggested, among other
things, that it would be very difficult for a court to determine “prejudice” based on an
inadequate record developed by incompetent or ineffective counsel. Strickland, 466 U.S.
at 710, 104 S. Ct. at 2076, 80 L. Ed. 2d at 708 (Marshall, J., dissenting). Academic
commentary has been critical as well. See, e.g., Stephanos Bibas, The Psychology of
Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel, 2004 Utah L.
Rev. 1, 11 (2004); Sanjay K. Chhablani, Chornically Stricken: A Continuing Legacy of
Inffective Assistance of Counsel, 28 St. Louis U. Pub. L. Rev. 351, 390 (2009); Donald A.
Dripps, Ineffective Assistance of Counsel: The Case for an Ex Ante Parity Standard, 88
J. Crim. L. & Criminology 242, 270–71 (1997); William S. Geimer, A Decade of
Strickland’s Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4
Wm. & Mary Bill Rts. J. 91, 124 (1995); Jeffrey L. Kirchmeier, Drink, Drugs, and
Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the
Strickland Prejudice Requirement, 75 Neb. L. Rev. 425, 455–63 (1996); Richard Klein,
The Constitutionalization of In Effective Assistance of Counsel, 58 Md. L. Rev. 1433,
1445–52 (1999).
         Regardless of the merits of the criticism, there is a hydraulic relationship
between the appropriateness of the Strickland ex post test in challenging convictions
and the degree to which the court is willing to take meaningful steps ex ante to mitigate
systemic or structural shortcomings in the right to counsel at trial. By addressing
systemic deficiencies at the front-end of the criminal process, it becomes more
acceptable to impose a relatively high bar for the vacation of convictions in
postconviction actions. The greater the systemic assurance that a defendant is
provided with effective trial counsel, the lesser the need for a broad avenue of
postconviction relief.     See generally Pruett, 574 So. 2d at 1359 (discussing the
relationship between ex post and ex ante analyses of ineffective-assistance claims). To
the extent, however, that structural problems make effective assistance of counsel more
difficult, application of the relatively high bar to successful claims under the Strickland
rule is correspondingly less defensible.
                                         30

Ct. 2002). In this case, the only issues relate to the enforceability of a

rule that limits the fee for appointed counsel and a contract provision

incorporating the rule. The state’s weighty interest in finality of criminal

convictions is not affected. In this setting of a fee challenge, we hold that

a lawyer may mount a successful challenge by showing that the fee

restrictions, if enforced, would have a substantial chilling effect on the

constitutional rights of criminal defendants. There is no requirement of

showing actual prejudice in a particular case.                      We question the

continuing validity of Lewis and any other precedent to the extent that

they are contrary to this proposition.

        We also do not believe separation-of-powers concepts prevent us

from     interpreting   the   statutes     in    a   fashion   to    avoid     potential

constitutional problems. It is the responsibility of the judicial branch to

ensure that indigents receive effective assistance of counsel as required

by article I, section 10. While it is true that an adverse ruling will have

some fiscal impact on the state, this is true in many situations. If the

court was constrained any time a ruling had fiscal impact, Gideon itself,

which has been characterized as an “enormous unfunded mandate

imposed upon the states,” would have been wrongly decided.                          See

Norman Lefstein, In Search of Gideon’s Promise: Lessons from England

and the Need for Federal Help, 55 Hastings L.J. 835, 843 (2004).

        C. Substance of Systemic Right-to-Counsel Issues in This

Case.    We now consider the extent to which Simmons’s constitutional

claims    have   merit.       We   begin        by   considering     whether     ethical

considerations are sufficient to trump structural right-to-counsel claims

based on grossly inadequate compensation.                The district court in this

case relied upon Dillon, 346 F.2d at 637–38, which held that attorneys
                                    31

are ethically obligated to provide adequate representation without

compensation.

      Modern scholarship, however, has persuasively discredited the

Dillon view that historical traditions mandate attorneys to represent

criminal defendants for free or for little compensation.        See David

Shapiro, The Enigma of the Lawyer’s Duty to Serve, 55 N.Y.U. L. Rev.

735, 740–49 (1980) (noting that the duty in English law was limited to

the very group of officers who had extraordinary privileges at court and

did not apply to ordinary attorneys); see also DeLisio, 740 P.2d at 441;

Stephan, 747 P.2d at 839–42; State ex rel. Scott v. Roper, 688 S.W.2d

757, 762–69 (Mo. 1985).

      Further, the notion that the state’s obligations can be satisfied

indirectly through attorneys volunteering their time and effort arise from

the days when a criminal trial was not a long and complicated affair and

any generally trained lawyer could step in and handle a case or two

without substantial financial sacrifice. Those days have long passed as

the criminal law has increased in complexity, and the cost of operating a

law office has risen dramatically. Makemson, 491 So. 2d at 1114; Jewell,

383 S.E.2d at 542.     The suggestion in Lewis that authorities do not

support a systemic right-to-counsel claim unless the substantial burden

of indigent defense is born by lawyers was inaccurate at the time and is

now out-of-step with present day realities in the legal profession.

      In analyzing the merits of Simmons’s systemic or structural

claims, it is important to focus precisely on what the challenged rule

provides. It states that for appellate work, there is a fee cap of $1500

unless counsel can demonstrate that the work is “beyond the purview of
                                          32

both the attorney and the state public defender.” 10 Iowa Admin. Code r.

493—12.5(4).      In other words, under the state public defender’s rule

involved in this case, the attorney must demonstrate that he or she is not

capable of providing the representation and that the state public

defender cannot provide it either.           In appellate work, an experienced

criminal lawyer will be hard pressed to say that the work is beyond his or

her capability.     What is required, however, in a substantial criminal

appeal is the dedication of time and effort far in excess of compensation

of $1500 at an hourly rate of $50 per hour.

       This case, then, does not involve a flexible approach to fees where

an attorney can show the reasonableness and necessity of fees in excess

of a target amount.        Thus, Lewis and Postma, which emphasized the

flexibility of the fee structures at issue in those cases, are inapposite.

See Lewis, 555 N.W.2d at 220; Postma, 439 N.W.2d at 182. Here, we are

dealing with a hard cap that prevents an attorney from recovering

additional fees even in a case where effort in excess of that authorized is

reasonable and necessary.

       We also note that the concepts of “reasonable fee” and the

constitutional requirements of effective assistance of counsel are related

but not identical. A lawyer could receive a “reasonable fee” for very little

work, but a minimal performance might not provide effective assistance

of counsel in a particular case. The focus is thus not solely on providing

the lawyer with a reasonable fee, although that is important, but on


       10In his reply brief, Simmons notes that the rule was amended after the district
court’s ruling. No one argued, however, that the amended rule provides the rule of
decision in this case. We note that the new rule has somewhat more flexibility than
what we have characterized as the hard cap in the rule before the court. The new rule
establishes a fee cap, but allows the fee cap to be exceeded in unusually complex cases.
We take no view, however, as to whether the new rule meets systemic constitutional
requirements imposed by article I, section 10.
                                     33

showing that the system is designed to ensure that an indigent

defendant receives effective assistance of counsel. Here, we focus not on

establishing a system that provides reasonable compensation to a lawyer,

but on one that is designed to provide effective assistance of counsel.

See Makemson, 491 So. 2d at 1112 (noting what is at stake in a fee-cap

challenge was the right to effective representation rather than the

attorney’s right to fair compensation).

      Based on our review of the case, we conclude that the plaintiff has

shown that if Iowa imposes a hard-and-fast fee cap of $1500 in all cases,

such a fee cap would in many cases substantially undermine the right of

indigents to effective assistance of counsel in criminal proceedings under

article I, section 10 of the Iowa Constitution.          In reaching this

conclusion, we look at the facts of this case from three different

perspectives. All point to a profound chilling effect of the fee cap in this

case that, in effect, establishes a hard $1500 limitation on counsel.

      First, we examine what the fee cap would mean for a full-time

attorney providing representation in criminal appeals. Under the NLADA

standards, a lawyer who handles appeals should limit his or her

workload to twenty-five appeals per year.      Standards for the Defense,

Standard 13.12.      Under this standard, a full-time lawyer working

pursuant to the appellate defender’s rule could receive a gross income of

$40,000. See id. From this figure, the attorney must pay for overhead

which, according to the Iowa State Bar Association survey offered into

evidence in this case, was, for the average Iowa lawyer, in excess of

$70,000.   Even assuming that a criminal defense lawyer working on

appeals would have less overhead than the average Iowa lawyer, it seems

clear that it would be very difficult for a lawyer working under the state

public defender’s rule to earn a living.
                                    34

      Second, we look at this case by considering the hourly rate paid to

Simmons for what the record establishes were reasonable and necessary

services. His hourly rates for the cases amount to $12.56 for Millam’s

appeal and $12.27 for Cromer’s appeal. Over the long run, payment of

such hourly rates to appellate counsel will have a chilling effect on

qualified lawyers taking this work and would discourage thorough

appellate preparation.

      Third, we use our own expertise in considering the impact of a

$1500 fee cap for appellate work. State v. See, 387 N.W.2d 583, 586

(Iowa 1986) (stating that courts are experts in determining reasonable

fees); Smith, 394 A.2d at 838 (stating “it is peculiarly within the judicial

province to ascertain reasonable compensation” for court-appointed

counsel).   No one can dispute that competent appellate representation

requires thorough mastery of the underlying facts, communications with

the client, research into applicable legal issues, consideration of which

issues to present on appeal, and then careful writing and rewriting. A

hard-fee cap of $1500 simply cannot provide adequate compensation in

many cases, including the two cases at issue here.

      The implications of the inadequate compensation framework on the

provision of effective assistance of appellate counsel are multiple. First,

inadequate compensation will restrict the pool of attorneys willing to

represent indigent defendants. See State ex rel. Friedrich v. Circuit Ct.,

531 N.W.2d 32, 42–43, 44 (Wis. 1995); see also Coonrad, 362 N.W.2d at

201 (Schultz, J., concurring).    Second, the low level of compensation

threatens the quality of indigent representation because of the perverse

economic incentives introduced into the criminal justice system.       See,

e.g., Makemson, 491 So. 2d at 1112 (noting inextricable linkage between

compensation and defendants’ rights to effective assistance of counsel);
                                      35

Stephan, 747 P.2d at 831 (observing inadequate compensation causes

inherent conflicts between attorney and client); Jewell, 383 S.E.2d at 544

(stating it is unrealistic to expect appointed counsel to remain insulated

from economic reality when losing money).           Low compensation pits a

lawyer’s economic interest (recall Lincoln’s metaphor that a lawyer’s time

is his stock in trade) against the interest of the client in effective

representation. See Adele Bernhard, Take Courage: What the Courts Can

Do to Improve the Delivery of Criminal Defense Services, 63 U. Pitt. L. Rev.

293, 321 (2002) (declaring conflict of interest between attorney and client

in fixed-fee cases as “real”); see also Smith, 681 P.2d at 1381 (holding

fixed-price contract to represent defendants in county unconstitutional

for, among other things, failure to take into account time that the

attorney is expected to spend representing defendants, failure to provide

support costs, and failure to take into account the complexity of each

case); Olive v. Maas, 811 So. 2d 644, 652 (Fla. 2002) (stating mandatory

fee caps create “economic disincentive[s] for appointed counsel to spend

more than a minimal amount of time on case”).

      D. Construction      of     Statutes     to    Avoid   Constitutional

Infirmities.    Ordinarily, we construe statutes to avoid potential

constitutional infirmity if we may reasonably do so. Visser, 629 N.W.2d

at 380; see also White, 545 N.W.2d at 557. We are also confident that

the legislature intended chapter 13B to implement Sixth Amendment

rights. See Iowa Code § 13B.2A (stating fee-limitation recommendations

“shall be consistent with the constitutional requirement to provide

effective assistance of counsel to those indigent persons for whom the

state is required to provide counsel”).      In light of these principles, we

construe Iowa Code section 13B.4(4)(a) as not authorizing hard-fee caps

applicable in all cases.        Instead, in order to avoid constitutional
                                    36

difficulties, we construe the term “fee limitations” to authorize only a

range of hourly rates that might be charged, the procedure for making

fee claims, and soft-fee caps in categories of cases that may be rebutted

by a showing of reasonableness and necessity under Iowa Code section

13B.4(4)(d)(6).   See Bailey, 424 S.E.2d at 508.      As a result of this

interpretation, however, we find that the administrative rule in this case

establishing a hard-fee cap of $1500 for a criminal appeal violates the

statute and thus cannot be enforced against Simmons.

      We also find that the implementing provision in Simmons’s

contract violates public policy.     Although parties may incorporate

administrative rules as terms of a contract, the terms are not enforceable

if they are contrary to the intent of the enabling statute. See Bank of the

West v. Kline, 782 N.W.2d 453, 462 (Iowa 2010) (“It is well-established

Iowa law that contracts made in contravention of a statute are void, and

Iowa courts will not enforce such contracts.”).     We will not enforce a

contractual provision that has a chilling effect on the constitutional

rights of criminal defendants and is inconsistent with the legislature’s

intent to provide indigent defendants with effective assistance of counsel.

      V. Conclusion.

      For the above reasons, we reverse the decision of the district court

and remand the matter to the district court for a determination of

reasonable and necessary fees that are consistent with the constitutional

mandate of effective assistance of counsel.

      REVERSED AND REMANDED.
