County, attorneys differ on rates for conscription

Judge makes 'best of a bad situation' for indigent defense

Conscripted indigent defenders came before Grant County Superior Court Judge John Antosz to collect their fees from the county Thursday morning.

But Jerry Moberg, the attorney representing Grant County, feels judges have set attorneys' rates too high, and County Commissioner LeRoy Allison said he fears the precedent set by those rates.

Superior court judges conscripted 31 Grant County attorneys to provide indigent defense after public defender Tom Earl was suspended by the Washington State Bar Association in February.

At the time, the attorneys were asked to help the county during a crisis at a rate to be determined later.

Last week, judges set that rate at 82.5 percent of the fees an attorney would normally charge a client. Evan Sperline, presiding judge of the Grant County Superior Court, said that number was derived from the three judges' experience in their own private practice and calculating the cost of the expense of tracking down uncollected fees.

Attorneys are paid a minimum of $132 per hour for indigent cases under the plan.

Moberg said the rate should be much lower. He recommended $50 per hour, which would is roughly what a deputy prosecuting attorney would make and would cover overhead costs of running a practice, Moberg wrote in a brief to the court.

"I think it's a dangerous precedent that lawyers assigned cases get paid anywhere near their commercial rate," he said, adding, "It really defeats the entire purpose of an indigent program to set rates that high."

Moberg added that Washington's Rule of Professional Conduct states that lawyers have a "professional responsibility" to provide legal services to those unable to pay, and the suggested number is 30 hours per year.

But Moses Lake attorney Carl Warring, who was first on the docket and spoke in favor of the system set forth by the judges, said Moberg's proposal does not account for the costs necessary to maintain an office.

Warring, who said he operates a "modest" practice charging $150 to $160 dollars per hour, agreed that attorneys have an ethical responsibility to indigent clients, but attorneys' time is akin to their property.

"Just because the state licensed us doesn't mean they can take property from us," Warring said.

Antosz said the court must be wary of two conflicting issues: adequate defense of indigents and protection of Grant County funds.

Indigent defense is the responsibility of the county's taxpayers, Antosz said, and should not be disproportionally paid for through attorneys labor.

"Should indigent defense be put on the backs of a few (taxpayers) — the attorneys?" he said.

Antosz added that superior court judges are usually not in the spot to decide how attorneys are compensated for indigent work.

"This is just not an issue that the judges handle," he said, adding, "I have to make the best of a bad situation."

Earlier this month, county commissioners signed agreements with five attorneys to provide indigent defense, and Commissioner Allison said two more are expected to come aboard.

Though the new contracts have been approved and three of those attorneys are handling indigent cases, Sperline said he expects the conscription system to continue for another month as attorneys' caseloads decline.

The judges cannot assign all the cases to the new public defenders immediately because it would burden them with too great of a caseload, Sperline said. Commissioners set a goal of limiting public defenders to 150 cases per year, and the court cannot remain within that confine and assign all cases to contracted attorneys, Sperline said.

"Just because somebody signs the contract doesn't mean you can give them the full caseload," he said.

Attorneys Alan White, Randy Smith and Ryan Earl have signed contracts and are taking cases. Brett Hill and Ted Maher have signed contracts and will begin taking cases next month.

The county has received applications from across the state to fill the last two spots, Allison said.

Moberg said he worries the court's decision creates a "constitutional crisis" by giving the judges a power they should not have. By law, county commissioners are charged with determining which system will be used to provide indigent defense, which they have done.

The law has no precedent for judges to continue with a different system, Moberg said.

Allison said commissioners are concerned about how much the conscription system, which is not included in the county's budget, will cost.

The county paid Earl through the middle of February, and Allison estimated the new contract system will cost about $750,000. The final number for the conscription is not yet available as attorneys have just begun turning in their hours worked.

"There's a lot of questions in the next few weeks that are going to have to be answered," he said, adding that he is concerned about the hourly minimum being exploited by attorneys who normally charge less.

Sperline said the judges know about the concern for county finances, but no one else has come up with a better system yet.

"We're painfully aware that this is going to have an impact on the county's finances," Sperline said.