IDS official blames appointed-lawyer mess on DAs’ group

A “totally inappropriate” presentation on March 30 at the North Carolina Legislature touched off the turmoil in North Carolina’s indigent-defense system, an official with the state’s Indigent Defense Services said.

Angered by the prospect that the Legislature will cut their pay, court-appointed lawyers across the state have removed their names from the appointment lists, an action that could upset the administration of justice for defendants who cannot afford private lawyers.

In addition, two outfits representing each side of the criminal justice system – the Indigent Defense Services and the Conference of District Attorneys – are sparring over the motivation of that March 30 presentation.

Danielle M. Carman, assistant director and general counsel of Durham-based IDS, said representatives of the state Conference of District Attorneys told the gathering at the Legislature that prosecutors are “outspent and out-funded every day in court.”

The conference urged legislators to reduce IDS’s budget, Carman said.

But Peg Dorer, director of the Conference of District Attorneys, said most of those at the presentation were elected district attorneys, not legislators, and the purpose of the presentation was to set out priorities for the upcoming year.

Regarding cuts, Dorer said, the conference merely said that if there were going to be cuts, they should be shared.

She said in the past year, district attorneys have cut 73 positions. In the House of Representatives’ budget plan, district attorneys would have to cut an additional 55 positions. Hiring for existing openings has been frozen for close to two years, she said.

If the conference wanted IDS to share its pain, the House obliged, cutting IDS’s budget by $11.3 million for the next fiscal year, Carman said. But the House’s cut is not final, as the Legislature has yet to adopt a budget.

Even when money is available, Carman said, it normally takes a few months to catch up to fee awards submitted from the previous fiscal year, which means attorneys have to wait a month to two months for payment while budget issues are sorted out.

But this year is different.

Carman on April 27 sent a notice to attorneys “letting them know we didn’t know our budget yet for cases appointed on or after May 2. We told them they should expect rate reductions.”

That, Carman said, is putting attorneys in the position of having to decide whether they can handle cases when they don’t know their hourly rate of compensation.

She said she was aware of at least 110 attorneys who had dropped off appointed lists in the state. “But the actual number is probably two-thirds higher than that,” she said. “The courts are starting to feel this. In my humble opinion, what we’ve seen so far is the tip of iceberg.”

That tip, she said, includes at least one judge – Bladen County Chief District Court Judge Jerry Jolly – who is appointing lawyers regardless of whether they want the cases. Carman said all the attorneys on the appointed list in Bladen County had withdrawn their names.

Jolly declined to comment for this story.

“If we move to a lower rate of compensation,” Carman said, “what we are going to see are lawyers without skill and experience being the only ones who will handle cases.”

She said a constitutional crisis is about to unfold in the state.

“If there isn’t a warm body around to represent these defendants, we’re going to see delays in cases, dismissals, and huge costs associated with litigating ineffective assistance of counsel claims down the road,” Carman said.

Symbol over substance

But at least one attorney sees the list withdrawals as symbol over substance.

“In counties where attorneys are in a position to organize as a group, my sense is that they are trying to make a point,” Durham attorney Kerstin Walker Sutton told Lawyers Weekly. “I don’t think they are changing the nature of their practices or making a permanent professional decision.”

The effort, Sutton said, may result in judges’ finding no one to appoint in cases. “They’ll ask, ‘How’s this going to work?’ Right then, the point has been made,” Sutton said.

“Hopefully with the point made, the people in Raleigh making the budget decisions will say ‘Wow, look at the problem this has caused in Alamance County. What if this spreads across the state?'”

But Sutton doesn’t think the appointed-list withdrawals will spread across the state. “That’s not the nature of what we’re looking at,” she said.

She said Durham criminal defense attorneys met two weeks ago to consider an organized response to what they suspect will happen with IDS defense rates.

“We have over 1,000 attorneys in the Durham County Bar,” Sutton said. “If a few of us pull our names off the list, there will be dozens of other attorneys to fill in.”

She said it’s not feasible in every county for the appointed-list-withdrawal point to be made.

But, she said, “Hopefully what’s going on in the counties where attorneys have withdrawn from the lists causes enough of a ruckus that our friends in Raleigh may consider restoring the funds.”