Eighteen months after it was implemented, two of the six counties participating in a legislature-mandated pilot program to pay court-appointed attorneys according to a fixed fee schedule have asked to be exempted from participation.
The program was the result of legislation introduced during the 2016 session that was eventually wrapped into that year’s budget. Legislators directed the Administrative Office of the Courts to collaborate with the Office of Indigent Defense Services to create a uniform fee schedule to pay attorneys for representing indigent defendants in district courts in six pilot counties.
Under the program, which took effect on July 1, 2017, attorneys receive a specified fee for handling a particular type of case instead of getting paid at an hourly rate. Class A through D felonies pay $425, for instance, while most misdemeanors pay just $185.
Guidelines required that the AOC and the IDS pick two counties with small caseloads, two with medium caseloads and two with large caseloads. As a result, Macon, Watauga, Burke, Lincoln, Iredell and Davidson counties were selected to participate. Now, Watauga and Macon (the two smaller counties) want out, according to IDS executive director Thomas Maher.
In a report published in March, Maher said that there were problems from the beginning in those counties, and elsewhere, with complicated child custody and Department of Social Services cases, because the hours required to defend such cases varied so widely. He said that when the program took effect, judges in those districts complained of attorneys pulling their names from the indigent defense lists, and those who remained were overwhelmed by the resulting caseloads.
In the March report, one attorney was quoted as saying the fixed fees made it difficult for small practitioners in districts with small caseloads to make ends meet.
“[It’s] hard to justify taking cases for $185,” the attorney said in the report. “That barely covers overhead and I make about minimum wage to defend a client.”
So in March the IDS recommended creating an opportunity for counties to opt out of the pilot program, either in its entirety or by cutting out some of the more problematic case types, like family law cases. Maher said if released, the counties will go back to paying the traditional hourly rate in order to prevent further court disruption.
Maher said he wasn’t surprised when Watauga and Macon applied to opt out.
“The notion that it will average out doesn’t work when you don’t have many cases,” he said describing the difference between the small and large caseload courts. “Attorneys are not willing to work under that system.”
It is now up to the AOC’s director, Judge Marion Warren, to decide whether to let the counties out. The AOC did not respond to requests for comment about the pilot program by press time.
While the small counties wait to learn of their fates, Maher expressed other concerns about the quality of indigent defense resulting from the fixed fees. He said there is a fear among lawyers, especially in the smaller districts, that the flat fee incentivizes lawyers to spend less time on each case.
“How much they make depends on how much time they spend,” Maher said. “The fewer hours, the more per hour you make. Good lawyers have pressure to move these cases quickly.”
In turn, he said, this haste may be affecting the quality of indigent defense in the pilot counties. In a November presentation, Maher said that conviction rates went up almost 2 percent after the pilot program began, and there was a 35 percent decrease in the rate at which cases went to trial.
“I worry about how the pressure to spend less time will affect the quality of outcome for clients,” he said. “We’ve started looking at that … in one county, the quality improved somewhat, and in another, it was flat, but for the other four, the quality from the clients’ perspective had gone down.”
While the idea behind the program was to increase the predictability of spending in order to better project future costs of statewide indigent defense services, Maher said that has made little difference so far.
Sen. Shirley Randleman (R- Wilkesboro) introduced the legislation which eventually mandated the creation of the pilot program. She did not respond to requests for comment about the program’s future.
Maher said that he doesn’t expect the program to expand into smaller counties elsewhere in the state, and that the program’s future success depends on local bars’ willingness to work with the program.
In the March report, he said that some judges who were polled about the program reported better efficiency, as cases tend to be resolved more quickly due to fewer requests for continuances and less time-consuming paperwork.
Maher said that while 61.5 percent of attorneys polled before the March report viewed the pilot as unsuccessful, the problems don’t appear large enough for the other four counties to opt out.
While it may be easy to blame the pilot program on poor quality indigent defense, Maher said the issue is bigger than the fixed fee and has more to do with a long-standing decision to underpay indigent defenders.
“In 2011, we reduced the rate we pay privately assigned counsel. That was seven and a half years ago, and the rates haven’t gone back up, but inflation has,” he said. “While well intentioned, this can undermine the right to constitutional fairness.”
Follow Matt Chaney on Twitter @NCLWChaney
|Class A through D felonies||$425|
|All other felonies||$230|
|Class A1 misdemeanors||$200|
|Class 1 through 3 misdemeanors and other traffic offenses||$185|
|Civil and Criminal Contempt||$185|
|Probable Cause and Transfer/Class A through E felonies||$535|
|Adjudication and Disposition/Class A through E felonies||$535|
|Adjudication and Disposition/Class F through I felonies, class A1 misdemeanors||$300|
|Adjudication and Disposition/Class 1 through 3 misdemeanors||$200|
|Post-Disposition Proceedings/Motions for Review, Probation Violations||$150|
|Adjudication and Disposition||$500|
|GAL: Abuse, neglect or dependency petitions||$250|
|Termination of Parental Rights||$500|
|GAL: Termination of parental rights petitions||$250|
|Other child welfare||$130|
Source: North Carolina Office of Indigent Defense Services Report on Model Fee Schedule dated March 15, 2018.