West Virginia News: Do State Officials Need To Abolish Private Court Appointed Lawyer System

Shortage Of State Funds And Some Lawyers Overbilling May Delay Court Appointed Case Payments by Jack Swint

“Current projections indicate that PDS will be unable to pay private billings received on or after 1 February 2011. While cash flow may allow checks to issue for up to 60 days after that date, it does not appear any billing received after 1 February 2011 will be paid absent a supplemental appropriation from the Legislature.”

If you have been accused of a crime (adult & juvenile) that has the potential for jail time or are being considered commitment by the court to an institution for a mental health evaluation and you are declared indigent, the court will offered to appoint counsel to defend you. At least that’s the way it has been in the past... According to at least one November 5th, 2010 memorandum, the state may not be able to financially pay for one on your behalf much longer. “Current projections indicate that PDS will be unable to pay private billings received on or after 1 February 2011.

While cash flow may allow checks to issue for up to 60 days after that date, it does not appear any billing received after 1 February 2011 will be paid absent a supplemental appropriation from the Legislature. The memo goes on to explain that… “We also project a $14,500,000 deficit next year unless our current appropriation is increased by that amount.”

Public Defender Or Court Appointed Private Attorney

Depending on where you are located in WV and the nature of your legal situation, you may be represented by a public defender (a full-time employee of the state who is responsible for representing defendants unable to afford their own attorney) or a court-appointed attorney who also has a private practice but is hired by the court on a case-by-case basis to represent indigent clients when necessary. Your public defender or court-appointed lawyer is required to be independent, and act as your counsel and advocate. In theory, just because he is paid by the government doesn't mean that he is working in collaboration with the prosecutors, judge or police.

In a perfect world, you should expect your appointed lawyer to have experience defending people accused of crimes similar to the crime of which you are accused. In reality, it’s important to remember that lawyers are individuals, some are more experienced and some are less experienced, some have comforting personalities and others may come across as gruff and even belligerent. So the possibility exists that you may be assigned a lawyer with whom you don't get along, or who doesn't understand the complexities of your case.

Cost Effectiveness

Everything comes down to money. In the latest “Indigent Defense Commission Report of 2009," shows that since 2005 the Public Defender Program has been more cost effective than the use of private attorneys to represent indigent clients. The report states, “Public Defenders Cost Less Than Private Counsel.” State audits and commissioned reports have routinely pushed for all WV Judicial Circuits to move towards the Public Defender Program. To date, this has yet to occur.

In 2010

During fiscal year 2009-20010, the PD offices provided chargeable representation in 86,755 associated judicial proceedings. Public Defender Services issued disbursements totaling $16,965,243.42. The average hourly cost was $69.67 and the average cost per case closed was $548.34. In the same time period, reports show that Court Appointed Attorneys submitted vouchers for 45,283 judicial proceedings. The state disbursed fee payments in the amount of $30,593,059.70. The average hourly cost was $52.76 and the average lawyer fee cost per case was $642.74. One statistic that stands out is the hourly difference that court appointed attorneys charge the state for “Total Hours In Court” and “Total Hours Out Of Court.”

In the 2010 fiscal year, the Public Defenders Office claimed 243,519 total hours worked. 49,398 (20% of total) hours "In Court" service. In the same time period, the "Total Out Of Court" was 128,167 hours (53% of total) and the remaining 65,879 (27%) were attributed to administrative hours. Also, in the 2010 fiscal year, court appointed lawyers claimed 631,737 total billable hours. Out of that, 97,535 (15.44 % of total) hours billed for "In Court" services. In the same time period, the “Total Hours Out Of Court” was 534,184 hours. (84.56% of total billable hours.) The state also paid out an additional $1,820,495.00 to court appointed lawyers in “expenses.”

The reports also show the same disparity between total costs vs. manpower hours and expenses between the Public Defenders Office and paid court appointed Lawyers in 2008 & 2009. Note: The entire “Indigent Defense Commission Report of 2009" is linked below.

Who Does Or Doesn’t Monitor These Costs?

Each circuit court judge is charged with monitoring court appointed lawyers fee’s and expenses. Part of that judicial responsibility is to keep a watchful eye for any elevated dollar billings in each 6 month period. In fact, there is what is known in the halls of justice as the “Top 100 Billers Club” The West Virginia Public Defenders Services program has created a monthly alert system, available through their web site, which will provide an ongoing billing status of those attorneys whose billings are in the top one hundred cumulatively, month by month.

In all fairness, we did learn from one attorney that the below list, including the entire Top 100 Billers report linked below, does not take into consideration that one attorney may be submitting bills for more than just their self.

Some Members Of The 100 Top Billers Club From July 1, 2010 to March 31, 2011

Name                              Amount            Claims               Average Per Case

William B Summers         $348,643.00          431                        $808.92

Casteel &Polling             $292,438.50          211                     $1,385.96

William Lester                 $261,944.50          278                        $942.25

Nanners &Willett            $181,709.00          212                        $857.12

Keith Flinchman               $179,206.50          110                      $1,629.15

Pamela Folickman            $177,961.00          292                         $609.46

Mountaineer Services       $151,387.00          194                         $780.35

Victor Victor &Helgoe     $136,529.50          156                         $875.19

Christopher Bledsoe         $135,552.00           60                        $2,259.00

Starcher &Frum             $129,315.00           184                          $702.80

Charles Mullins                $128,729.00            82                        $1,569.87

Drake Law Office           $124,018.50          126                           $984.27

Wells Dillon                     $122,927.00          151                           $814.09

Christopher Moffitt         $103,100.00           63                        $1,636.51

Daniel Corey                  $116,687.00           120                            $972.39

Joseph Moses                $108,697.00            37                          $2,937.76

Lisa Weese                    $103,749.00            79                          $1,313.28

Roco Mazzei                  $102,527.00            69                          $1,485.90

Timothy Lupardos          $83,704.00            98                             $854.12

Carl Dascoli                    $77,021.00            62                           $1,242.27

** See First Link Below For Entire 100 Lawyers Listed **

Pros & Cons Of Court Appointed Attorneys

According to one former prosecutor we spoke with… “I didn't have experience with the public defenders, because in my county the attorneys for indigent defendants were all appointed. That being said, I do think that professional public defenders would be in improvement over some of the appointed defense attorneys whom I encountered. Some of the appointed attorneys are excellent, some even better than paid counsel. But a few of the appointed lawyers were significantly less than adequate in their competence.”

Did that make a difference in outcomes? “I would rather entrust justice to a professional public defender, as opposed to taking the luck of the draw from the appointed attorney pool. If the appointed attorney system costs more than the public defender system (and I don't know one way or the other), then we are not getting our money's worth.

On the other hand, some appointed attorneys are short-changed and financially abused under the current system. “Their bills are frequently cut arbitrarily and illogically by some judges. State funded investigators for appointed attorneys almost always have their invoices chopped. Both the attorneys and investigators have to wait, sometimes six months or more, to receive payment from the state treasurer. As a result, few attorneys can afford to take appointed cases, and those who do accept the cases cannot secure a proper investigation for their clients.

I do not know the possible adverse impact upon outcomes for indigent defendants in rural counties where it may not be feasible to have a regional public defender office. But in metropolitan areas, a professional public defender office is cost effective and will provide the best service to indigent defendants.”

Parkersburg attorney Jay Gerber says that there are other factors that need to be considered. One being the huge cost factor that unlike the Public Defenders, private court appointed lawyers have to pay for their own health care and retirement...“This is a huge issue as not only do the public defender attorneys receive benefits, but their families do as well. Oh, and the support staff in the office? Don't forget their benefits, too. Court-appointed attorneys also provide their own retirement. Post-employment benefits are creating massive unfunded future liabilities for the State and adding additional public defenders only increases this problem. Also, do I need to mention the pension fund problems this State has historically had?”

Attorney Gerber also points to the importance of this issue and how it effects all West Virginians..."I've discussed this issue with William "Billy" Richardson, a member of the Indigent Defense Commission, and his goal is to include all of the numbers for both sides so that an unbiased, non-political decision can be made by those in power. That's why it's so important to inform everyone about what was left out of the accounting report for public defender offices."

He summed up his beliefs by saying,  “I'll agree that there are attorneys out there who scam the system and pad their bills to make a buck. But changes can be made to bring costs down while still having appointed attorneys who do as good of a job or better than public defenders. Blanket statements that public defenders are cheaper and do a better job are just plain wrong and misleading.”

Other Considerations Needing To Be Addressed

One reoccurring cost to the system is the revolving door of repeat indigent offenders who are eligible and in need of either the PD or court appointed attorney each time they are charged with a new crime. Possibly consider additional resources to research and develop pro-active programs designed to assist felony offenders upon re-entry into the community.

Address new laws and policies being enacted to restrict persons with felony convictions (particularly convictions for drug offenses) from employment, receipt of welfare benefits, access to public housing, and eligibility for student loans for higher education. These collateral penalties place substantial barriers to an individual's social and economic advancement. This leads to some offenders re-committing new crimes.

End Of Story

Jack Swint-Publisher