OSB Indigent Defense Task Force III Report

Introduction  •  Summary  •  Types of Providers  • Training  •  Geographic Analysis  •  Types of Cases  •  Post Conviction Proceedings  •  Conclusions, Goals and Recommendations


Many indigent defense providers, particularly small private firm contractors, report difficulty hiring competitive candidates to handle indigent defense caseloads. The degree of difficulty attracting satisfactory candidates appears to fluctuate by district and is influenced by the general legal market but respondents report that indigent defense positions are almost always at the bottom of the legal community’s pay scale. Many recent graduates have such significant student loan debt that they must bypass public service employment. Given the unattractive compensation available, it is no surprise that applicant pools are often small and contract administrators find it difficult to retain experienced practitioners. Most of the attorneys hired by contract firms are recent law school graduates. Even where satisfactory candidates are not available, great pressure exists to find lawyers to fill positions because failing to provide counsel is not a viable option: judges have a constitutional obligation to appoint counsel so the Indigent Defense Services Division and, in turn, the contract administrators and public defenders must hire from the pool of available attorneys. A few districts have reached a crisis point in recent years, finding no attorneys available to accept appointments for the compensation offered; in more than one situation, the Indigent Defense Services Division has gone to great lengths to entice new lawyers to relocate to underserved areas. Many respondents foresee an increase in incidents like this across the state, as more experienced providers opt to forego the difficulty of attracting and retaining staff attorneys while managing ever more complicated caseloads without meaningful increases in compensation.

Survey respondents often noted, however, that the skill of the individual lawyer can have a far greater impact on the quality of representation provided than the type of office providing the service: a skilled and diligent lawyer may overcome obstacles that cause another to falter. Yet, as counties grow larger and contract offices become more common, there is a clear tendency to judge quality on an office-by-office basis rather than lawyer-by-lawyer. The most criticized offices are described as high volume, low experience, high turnover offices, in which lawyers leave before developing satisfactory skills. Unlike most public defender offices or consortia providing services in all, or almost all, case types, small firm contractors often fill particular niches or specialized areas of practice. Often, districts have implemented procedural changes - in an effort to promote efficient processing of cases in high volume areas like drug dockets and traffic courts - and contracts have been created to provide attorneys to handle the specialized dockets. Given this genesis, it is not surprising that some contractors are viewed as providing a type of high volume service that precludes in-depth individual assessment of clients' cases. In rarer cases, the specialized contracts are viewed as bringing a greater expertise or specialization to an area of practice. The latter situations illustrate the potential advantage of awarding specialty contracts to smaller firms but the more common experience seems to be diminished quality. High volume dockets, on their own, do not dictate lower quality representation but high volume dockets combined with a low flat-rate payment structure will inevitably lead to this result. It is not clear that larger offices, whether public defender or consortia, would effectively resist this dynamic, but the survey suggested that the larger offices could better absorb the stresses and resist the pressures to sacrifice quality for judicial efficiency. The overall perception of survey respondents appears to be that fast track dockets may result in the culpable clients receiving initial probationary offers that are more attractive than they might have been under older, less 'efficient' models, but the gain of culpable clients may come at the expense of those whose more cognizable claims are overlooked or obscured by lawyers too busy to give individual cases the attention they may deserve. Experience is widely perceived as the single most important attribute of an attorney, assisting the attorney to distinguish between meritorious cases and those that should be disposed of on a fast-track basis in an environment where little case preparation is possible. Many respondents singled out particularly attorneys as exemplary and worthy standards for the profession: for those providers who were praised, 'experienced' was the most commonly used word.

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