Local public defenders balk at proposed state contract

·7 min read

Jun. 15—Southern Oregon lawyers who take on public defense cases for poor clients are balking at a proposed state contract they say doesn't pay enough and imposes new burdens.

The stalemate comes amid an Oregon-wide shortage of lawyers willing to handle public defense cases.

"Everybody is looking for lawyers right now. No one wants to do this work. The pay is low for how difficult the work is," said Doug Engle, executive director of Southern Oregon Public Defender, a local group of lawyers who focus on public defense.

Unlike prosecutors in Oregon, public defenders aren't government employees with health insurance and retirement benefits. The state signs contracts with lawyers to handle public defense cases.

Some attorneys focus exclusively on public defense cases, while others take on a mix of public defense cases plus criminal and civil cases for paying clients.

Counties cover most of the cost of prosecutors who work at local district attorney's offices, but the state has been responsible for funding public defense work since the 1980s.

This year, the shortage of public defenders across Oregon grew so severe the state started sending out a weekly list of indigent defendants without attorneys. The weekly missive asks lawyers whether they are willing to take on any of the cases.

Some defendants are in jail, while others have been released on bail or their own recognizance. The lists include defendants who have been without attorneys for more than 80 days, including people accused of attempted murder and first-degree assault.

Some lower-level criminal cases in Multnomah County have been dismissed because defendants couldn't get defense attorneys.

Engle said he doesn't think lawyers who do defense work in Southern Oregon will agree to the state's new contract terms by July 1.

"I'm not optimistic. The state seems to have taken the position that this is take-it-or-leave-it. They've shown tolerance for having criminal defendants not having lawyers," he said.

If Southern Oregon lawyers who do public defense work won't sign the state contract, Engle said, he hopes the state will continue to allow lawyers to take on new public defense cases while negotiations continue.

Engle wants to keep working through new cases rather than letting them stack up.

Defense attorneys, prosecutors and courts already face a backlog of cases after COVID-19 safety restrictions slowed courts to a crawl. Those restrictions have since been lifted.

Engle said the state isn't offering enough for defense work.

"In a period of tremendous inflation, the offer is not even close to keeping up with inflation," he said.

The state Office of Public Defense Services said new contracts represent increases of 1% to 10%.

With the price of everything from gas to groceries skyrocketing, the annual inflation rate hit 8.6% in May, the highest since 1981, according to economists.

Engle said local attorneys object to a state contract requirement that they travel to adjoining counties to represent defendants when needed. He said lawyers aren't familiar with the district attorney offices and court systems of counties where they don't normally work.

"We don't have an office in those counties," he said. "Where do you meet with your client if they're not in jail?"

The state is proposing caps on the number of cases a defense attorney can take on. The caps vary based on the severity of different categories of crime, Engle said.

If public defense attorneys in one county hit the caseload limits, the state wants to make the attorneys in other counties take on new cases there, Engle said.

He said the caps are fairly reasonable, and he understands that the state is trying to make sure defendants get adequate representation.

The state is struggling to tame excessive workloads while also grappling with a shortage of lawyers willing to take on public defense work.

An American Bar Association report released this year said Oregon's public defense system has fewer than one-third of the lawyers it needs to adequately represent defendants in criminal cases. That translates into a shortage of 1,300 public defenders statewide.

Engle said Oregon's public defense system uses contracted attorneys instead of lawyers who are government employees. Attorneys are objecting to what they see as low pay combined with burdensome rules about how they work.

"Supposedly we're independent contractors, not employees of the state of Oregon," he said. "If we were, we would get health care, way more salary and retirement benefits. They don't want to do that. OK, we'll buy our own health insurance and fund our own retirement. But we need to be paid enough to do that. They want to not pay us as much as state employees and micromanage us."

Local attorney Matt Rowan has paid defense clients and handles civil litigation. He said he also takes on public defense work because of the challenge and as a way to serve the community, not because of the pay. The American criminal justice system would grind to a halt without the work of both defense attorneys and prosecutors, he said.

Cases might have to be dismissed against defendants who go too long without a public defender, Rowan said.

"If we don't get the contract figured out, a situation that is bad already will become astronomically worse," he said.

Like many other Southern Oregon attorneys who do public defense, Rowan objects to the state's proposed contract terms.

"They want to control how much you do outside of your defense contract work. You would have to limit yourself," he said.

Rowan said he doesn't want to limit his other work, or report on his outside legal cases as the state wants.

"It would be akin to hiring a contractor to build your house and saying, 'You can't build other houses,'" he said.

Rowan said while the state is offering more money for defense work, the increase actually represents a pay cut compared with inflation. He also doesn't want to travel to nearby counties.

Rowan said a major deal-breaker in the state's proposed contract is a provision that attorneys who do defense work indemnify the state Office of Public Defense Services, essentially protecting the agency against liability.

Rowan said that contract provision runs afoul of attorneys' malpractice insurance.

"That definitely has to be fixed. People will definitely not sign. It looks bleaker and bleaker and bleaker," he said.

Meanwhile, state lawmakers have created a workgroup to look at current and long-standing problems with Oregon's public defense system.

"This is an emergency. Oregonians are languishing in jail without access to legal representation, while public defenders have long been underpaid and overworked," state Rep. Dan Rayfield, D-Corvallis, said in a statement when announcing the workgroup in April.

The Governor's Racial Justice Council is calling on the state to "justly fund public defense in Oregon."

In a letter to the workgroup, the council said, "Public defenders do important, inspiring and difficult work. Criminal defense is a challenging and specialized field that requires a deep understanding of criminal law, evidence, forensic science and so much more."

The council said public defense work takes an emotional toll on attorneys as well. Defendants often have complex needs, including mental health and addiction issues and histories of poverty and trauma. Public defenders can face guilt, anxiety and helplessness from excessive workloads.

"Those attorneys deserve proper compensation and a manageable workload, if Oregon is to fulfill the obligations set forth by our state and federal constitutions to provide representation to those who cannot afford it," the council said.

A 1963 decision by the U.S. Supreme Court requires that attorneys be appointed for criminal defendants who can't afford to hire lawyers themselves.

In a letter observing Public Defender Appreciation Day June 8, Gov. Kate Brown, Chief Justice Martha Walters and Attorney General Ellen Rosenblum said the state's criminal justice system faces a very serious challenge.

"We do not have enough lawyers who are available, qualified and willing to do the very important and difficult work of providing public defender services. This is not acceptable," the letter said.

The trio said public defenders not only defend people accused of crimes; they defend the constitutional rights of everyone and the integrity of the justice system.

"The current crisis in Oregon's public defense system has many contributing causes and few immediate cures. To attract and retain lawyers to do this necessary work, caseloads must be reasonable, and salaries must be higher than they currently are. And the entire public defense system must be accountable for the public funds invested in it," the letter said.

Reach Mail Tribune reporter Vickie Aldous at 541-776-4486 or valdous@rosebudmedia.com. Follow her on Twitter @VickieAldous.