By Greg Robinson’s math, he didn’t earn a penny for the court-appointed defense work he did in a recent murder and elder-abuse case.

To the contrary.

“I actually paid them,” said Robinson, a Lawrence attorney. “I got the luxury of paying the state of Kansas to defend a client.”

Now Robinson is taking the almost unheard-of step of asking a judge to order the state to pay him in full for his defense work on the Timothy Harrell case. The issue is set for an Aug. 12 hearing in Douglas County District Court.

The challenge puts Robinson at the center of a legal fight brewing in Douglas County about pay for court-appointed defense attorneys. They haven’t had a pay increase in 16 years, and, as Robinson’s case shows, sometimes see cuts in the hourly vouchers they submit to the state for payment.

Wider concern

The issue isn’t just whether attorneys can earn a living. As pay continues to lag, more experienced attorneys are refusing to accept court-appointed cases. Officials worry that means some people charged with crimes may not be adequately represented, leading to more convictions overturned on appeal.

“(T)he more complex cases need the services of veteran attorneys,” District Court Administrator Linda Koester-Vogelsang wrote in a recent memo to the Douglas County Commission. “The less experienced the attorney, the greater risk to the Court that appeals will require retrials … due to inadequate legal counsel.”

Some counties in Kansas have full-time public defenders. But in Douglas County, people who can’t afford to hire an attorney are represented by private attorneys who take turns serving on an appointment list.

The county pays the bill for misdemeanor cases. Felony cases are paid by the state’s Board of Indigents’ Defense Services.

A losing proposition

Attorney Greg Robinson claims the state failed to pay him enough for work in a high-profile elder-abuse case. Robinson, pictured Thursday at Douglas County District Court, figures he spent about per hour out-of-pocket to work the case.

Robinson and his attorney, Ed Collister, argue that the way the state’s payment scheme works now is “confiscatory.” Even though the nominal hourly rate for court-appointed defenders is $50, they say, attorneys end up losing money.

Here’s how:

Robinson said he spent about 400 hours defending Harrell, a Lawrence man originally charged with murdering his elderly father by neglect.

The case broke new legal ground in Kansas because it combined a murder charge with an elder-abuse charge. After it became clear prosecutors had relied on incorrect medical advice in charging the case, Harrell pleaded guilty to involuntary manslaughter and was sentenced to probation.

Robinson submitted a $20,030 bill to the Board of Indigents’ Defense Services. He received $14,869, and the board denied the rest. Robinson said he was told it was because the board didn’t have the money and because the case didn’t go to trial.

That amounted to slightly more than $37 per hour. But a recent survey by the state found that the typical attorney spends $40 per hour just on overhead, such as rent and utilities.

In other words, using those figures, he lost nearly $3 per hour billed.

Money scarce

Patricia Scalia, executive director of the Board of Indigents’ Defense Services, said she hadn’t seen anything like Robinson’s legal challenge in her seven-year tenure. But she said she couldn’t talk about the specifics of Robinson’s case because it was pending.

The state sets caps on payment for certain kinds of cases. For example, the cap is $1,000 for a high-level felony that doesn’t go to trial. Attorneys can submit a bill for more than the cap amount if a judge declares it an “exceptional case.”

That’s what happened in the Harrell case. But in exceptional cases, Scalia said, the amount paid above the cap is left to the board’s discretion.

“The board is in a very difficult situation of wanting to pay the attorney for all the hours that the attorney claims, but on the other hand being mindful that the dollars are finite,” she said.

Late last year, Scalia warned the system of court-appointed attorneys was near collapse because of a lack of funding. She recommended the hourly rate be increased to $80 “to avoid the wholesale resignation of our assigned counsel throughout the state and to avoid a lawsuit for fair compensation.”

Lags nearby states

Earlier this year, Rep. Paul Davis, a Lawrence Democrat, introduced a bill in the Legislature to raise appointed attorneys’ pay to $80 per hour. It passed the Kansas House but didn’t get a hearing in the Senate.

This spring, Lawrence-area attorneys asked Douglas County to begin paying $80 per hour on misdemeanor cases. County administrator Craig Weinaug recommended boosting the rate to $65 and included the increase in his budget.

But commissioners denied the increase. One reason they cited is that the state pays only $50 for work on felony cases.

A Journal-World survey late last year found the pay for court-appointed attorneys in Kansas lagged that in at least two nearby states. In Iowa, the rate was $60 per hour. In Omaha, Neb., where the district court sets the local rate of pay, it’s $80 per hour for courtroom work and $65 or out-of-court work.

Staff writer Mark Fagan contributed to this report.