‘It just doesn’t pay the bills’: why fewer private lawyers are signing up to defend the poor | Crime News
A dwindling number of attorneys in Erie County and throughout New York State are willing to represent defendants who cannot afford their own attorneys.
It’s a problem that those on the ground say is caused by state-set pay rates that haven’t increased since 2004.
Private attorneys in their own firm or employed in a small firm who sign up to represent indigent clients through the county’s assigned attorney program, after expenses, end up making about $10 an hour for their work , said Kevin M. Stadelmaier of the Bar Association. of the Erie County Indigent Prisoners’ Aid Society.
“It just doesn’t pay the bills,” he said.
The Assigned Counsel Program, which performs the function commonly considered the office of the public defender, provides legal representation for all criminal matters in all cities and towns in the county, as well as high-level crimes in Buffalo. Lawyers who do this work under the program are not on staff, but are paid through a voucher system for hours worked.
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The lion’s share of people facing criminal charges in the county are indigent, Stadelmaier said.
The problem has built up over time, although it has been of heightened concern of late, according to lawyers working on the ground.
In the past month, two attorneys who handle homicide cases stopped taking on new assigned clients, Stadelmaier said, and since the start of the year only one attorney has been added to the program’s roster.
“We have a huge pool of talent in this county and in Western New York, and a lot of them won’t take assigned cases,” said veteran defense attorney Joseph J. Terranova, who sits to the Board of Directors of the Assigned Counsel Program.
The rates of pay, which also apply to attorneys who represent clients in family court, fall under what is known in state law as County Law 18-B. The hourly rate of pay for court-appointed attorneys is set by the state legislature and governor, and funding comes from county and state coffers.
The hourly rate — unchanged for 18 years — is $75 an hour for felonies and $60 an hour for misdemeanors.
Compare that to attorneys taking subpoenaed cases in federal court and getting paid $158 an hour.
The state’s top judge says a pay raise is needed.
“The inability of our state’s funding system to keep pace with any semblance of reasonable inflation has led to a mass exodus across the state of qualified appointed attorneys available to take on new assignments,” the judge said. Chief Janet DiFiore in her “State of Our Judiciary” report. earlier this year. “Committed and dedicated lawyers who remain in the lawyer and designated lawyer programs for children end up with an excessive workload, which means, of course, that they are overworked and find it difficult to devote sufficient time and resources to the clients they represent.”
The issue has been brewing for years, but a “confluence of events” has made it more difficult lately, attorney James Q. Auricchio said.
That includes recent changes to state discovery rules and court slowdowns caused by the Covid-19 pandemic, Auricchio said.
Changes to discovery rules allow defense attorneys to access all of the prosecution‘s evidence much earlier in the case, requiring more labor intensive efforts. That evidence can often include hours of body camera footage worn by police, which must be reviewed, he said.
As the courts reopened, a flurry of cases began to move forward at some point, he said.
Add to that the other types of legal work available that are more lucrative — some large firms charge several hundred dollars an hour — and the number of attorneys available to represent indigent defendants dwindles.
“Literally, there aren’t enough lawyers to take these cases,” said Auricchio, who added that he was taking “a fraction” of the assigned cases he was taking before.
While many of those working on behalf of the indigent did not get into the job for the money, they say they can’t do it instead of earning a living.
A criminal legal defense is a constitutional right, and an attorney’s experience matters when it comes to the quality and effectiveness of legal representation, defense attorney Jessica Kulpit said.
“To truly uphold the New York State Constitution, the systemic rights and values that we have put in place, representation must be equal,” Kulpit said. “Otherwise, words mean nothing. And compensation is part of that.”
Norman Effman, who heads the Wyoming County Public Defender’s Office and who has researched the issue for the state’s bar association, said existing pay rates mean fewer lawyers are willing to do the job. work, and those who show up tend to be less…experienced litigators.
“It basically destroyed the ability to attract decent, competent and efficient lawyers to these panels,” Effman said.
Lawyers hoped that an increase would be included in the state budget, but that was not the case. Proposed rate increases were included in one House’s budget bills, Stadelmaier said, but did not make it into the final spending plan.
A pay rate lawsuit filed last year in the state was cited by Gov. Kathy Hochul as the reason there was nothing in this year’s budget. This trial remains pending.
State Bar Association President T. Andrew Brown, in a written statement after announcing a state budget deal, said no provision for an increase in committed attorneys automatically was one of the failures of the budget.
“As a result, at-risk women, children and poor defendants, primarily people of color, who cannot afford an attorney are increasingly unable to access their constitutional right to representation. By refusing to raise pay rates for 18-B for the Children lawyers and attorneys, New York is discriminating against those who need an attorney the most This is not only unfair, but it goes against of the fundamental affirmation that all are equal before the law,” Brown said.
Proponents of the increase also hope the state will include an annual wage hike tied to increases in the cost of living.
One of the sticking points will also be who will foot the bill for the raise, the counties or Albany.
Reach Aaron in Abesecker[at]buffnews.com or 716-849-4602.