Attorneys seek pay raise for indigent defense work; situation could reach ‘crisis’ level in Douglas County

— Anyone who has ever watched a TV crime drama knows the rule by heart: People who are charged with a crime have a right to an attorney, and if they can’t afford an attorney, one will be provided to them by the court.

At least, that’s the way it’s supposed to work.

But in Kansas, where the state pays only $62 per hour, up to a cap of only a few thousand dollars in most cases, officials say they may have to start looking out of state to find attorneys who will take assigned cases because there just aren’t enough qualified, experienced attorneys in some Kansas counties who are willing to work for that rate.

Patricia Scalia, executive director of the Kansas Board of Indigents’ Defense Services, told a legislative committee Monday that the problem is especially severe in some of the state’s smaller counties.

“And because of the lack of qualified attorneys willing to accept appointed cases at the hourly rate that the board pays, we’re having to call in attorneys at a distance,” Scalia told reporters after the hearing.

“We have about exhausted the number of attorneys who are licensed in Kansas, and if this continued, it wouldn’t be too much longer before we were having to bring in attorneys from other states, Oklahoma or Missouri,” she said.

Speaking to the Legislature’s Joint Committee on Administrative Rules and Regulations, Scalia cited Finney County in southwest Kansas and Montgomery County in the southeast corner of the state as two areas where it’s especially hard to find qualified, experienced lawyers who will take assigned cases.

Scalia said there are two types of attorneys for indigent defendants: “public defenders” who work for an agency, typically on salary, who do nothing but indigent defense work; and “assigned counsel,” or private attorneys who have agreed to take cases on assignment.

Kansas statutes authorize the board to pay up to $80 per hour for those private attorneys who agree to take appointed cases.

But in 2010, amid the budget cuts that came during the Great Recession, Scalia said the board was forced to cut the actual rate it pays to $62 per hour, a 22.5 percent cut in reimbursement rates.

Now, five years later, the board is asking to make a small step toward restoring a small portion of that cut, raising the rate by $3, to $65 per hour.

By comparison, Douglas County District Judge Robert Fairchild, the administrative judge for the Seventh Judicial District, said a typical attorney in private practice in Lawrence would charge a paying client $200 to $250 an hour for criminal cases that go to trial.

Fairchild said the situation in Douglas County hasn’t gotten as serious as some other counties, but he said there is a shortage of qualified local attorneys willing to work for the state’s rate.

“We have 23 people on our felony panel, but we only have six who can take the highest-level felonies,” Fairchild said. “That has really put a strain on us with the number of high-level felonies lately. We also have trouble finding people who can do appeals. We’ve had to call for lawyers in adjoining counties to do appeals.

“It could come to a crisis at some point,” he said.

Fairchild said the Douglas County court has allowed some of the felony panel attorneys to take a hiatus from accepting court appointments so they can focus on their paying clients. He said the $62 per hour the state currently pays is probably not enough for most lawyers to cover their office and overhead expenses.

In addition, he said, attorneys willing to serve as court-appointed counsel can make more money handling federal cases because the federal government pays significantly more than the state. In fact, he said, they can actually make more money handling misdemeanor cases because those are paid for by the county, which still pays the full $80 per hour to appointed attorneys.

Lawrence attorney John Frydman said he stopped taking assigned cases about 12 years ago, long before the rate cuts, mainly because the rates were too low even then.

“All my bills kept going up,” he said. “My rent went up, my insurance rates went up. Everything went up, but the fees stayed the same.”

Frydman, who said he now charges about $250 per hour for criminal cases that go to trial, said the situation for defense lawyers in Douglas County became worse when the county moved its jail out of the Law Enforcement Center downtown to its current location southeast of the city.

“But they wouldn’t pay us for the transportation costs, or the time it took us to drive out there to meet our clients,” he said. “So not only did the rates not go up, they really went down.”

The Board of Indigents’ Defense Services is proposing to raise the payment rate through a regulatory change. Lawmakers raised no objections Monday to the proposed change. The board estimates the increased rates would cost about $200,000, which Scalia said could be funded through savings the agency realized in a set of resentencing cases earlier this year.

A public hearing on that change is scheduled for 9 a.m. Tuesday, Nov. 10, in Topeka.