Paying Attorneys of the Sixth

Services can be provided by public defenders and private attorneys. A “public defender” is employed by government who is generally barred from carrying private cases, but in return receives benefits consistent with other government employees (e.g., health insurance, retirement) and is given government office space. A “private attorney” can have a private practice and does not receive government benefits or government office space. National standards recommend jurisdictions rely on a mixed system of public defenders and private attorneys because rules of professional conduct governing conflicts of interest prevent public defenders from representing every defendant. Deciding on how much to rely on each is a policy decision best made by policymakers.

Certain payment models should be avoided because they create conflicts of interests between a defendant’s right to effective assistance of counsel and the attorney’s ability to earn a living, including: (1) a flat fee, (2) an hourly rate that imposes a maximum compensation (flat fee equivalent), (3) an hourly rate too low to cover actual overhead costs and attorney pay; and (4) any method that requires an attorney to pay for case-related expenses. Some states ban these practices altogether. Rather, national standards state private attorneys should be paid a “reasonable hourly rate” for “all hours necessary” that factors in overhead costs and out-of-pocket expenses to “encourage vigorous representation”

No. In our experience, attorney shortages are created when attorneys are not afforded the opportunity to work in well-structured public defense systems that offer such things as training, mentoring, reasonable compensation, and controlled workloads. The states with the greatest attorney shortages are generally those states that over-rely on private attorneys to provide public defense services because private attorneys can decide to stop taking public cases even if the compensation rate seems reasonable. The answer to attorney shortages generally is to increase reliance on public defenders and to pay private attorneys a reasonable compensation rate.

States truly are “laboratories of democracy,” with each state trying its own way of funding and providing the right to counsel. Deciding on how much to pay private attorneys for providing public defense services falls under the purvey of each state’s policymakers. A state’s compensation rate is impacted by various factors, such as the number of law schools in a jurisdiction, the number of available lawyers in a jurisdiction, cost of living, and geographic diversity that impacts drive times needed to reach courts and jails. This results in some more rural states with fewer law schools and limited numbers of attorneys needing to provide higher private attorney pay rates to attract and retain lawyers to do public defense work despite having a lower cost of living. However, less rural states often are at risk of losing lawyers to neighboring states that can pay a higher rate.