All local private attorneys may be assigned to represent indigent clients as soon as next Friday, whether they like it or not.
In a letter sent to the Scott County Bar Association late this week, Seventh District Judge Henry Latham said the court will begin assigning private attorneys in Scott County to defend people who cannot afford an attorney as soon as March 17.
“If there is not a significant increase in the number of contract attorneys by March 17th, the Court will have no choice but to appoint all licensed attorneys to cases to meet the need of the indigent defense in this district the following week,” Latham said in the letter.
The county uses full-time State Public Defenders and other attorneys under contract with the county to represent the indigent and to meet the demand. The private-practice attorneys would be required to represent indigent defendants on a case-by-case basis.
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Latham’s decision comes after he put out a call for contract attorneys in October of 2022. He sent the letter to all attorneys in the Seventh District Bar Association, detailing how the State Public Defender notified all the judges in the district that the Davenport Public Defender’s office would represent defendants only in the most serious felony and misdemeanor cases.
According to the judge, public defenders in Davenport can handle Class A and B felonies, but there are not enough of them to represent defendants in lower-class C and D felonies. Making the matter worse is a lack of contract attorneys in Scott County, which are private attorneys who are paid by the State Public Defender.
The reactions to Latham’s letter have been mixed.
Eric Tindal, a contract attorney who handles some cases in Scott County, said he understands the need for Latham’s letter. Local private attorney Eric Puryear said he will not accept contract work, because he finds it “morally offensive.”
Both attorneys agreed the state faces a number of intertwined issues when trying to find representation for poor clients and must take a hard look at how much contract attorneys are paid.
Eric Tindal is part of the firm Keegan, Tindal & Jaeger, which has offices in Iowa City and Davenport. He is a contract attorney who in 2022 represented indigent clients in four judicial districts and approximately 25 counties, including Scott.
“I was not surprised to get Judge Latham’s letter,” Tindal said. “Indigent defense is a national crisis.”
He offered some numbers for perspective.
“There are 370 attorneys on the contract list in Iowa,” Tindal said. “Now exclude the contract attorneys in Des Moines and in the Johnson County and Linn County corridor, and you have 311 attorneys for the rest of the state.
“Last year there were right about 47,000 claims. That means, basically, the number of bills attorneys sent to the state for services — (were) sent to the State Public Defender’s Office by less than 400 attorneys.”
That’s 127 services-for-clients claims per contract attorney in the state.
“There is an incredible strain on the public defense system in Iowa,” Tindal said. “And the situation in Scott County is one of the worst in the state.”
Because of that strain, he understands the need for Latham’s decision and added “the reasons for a lack of contract attorneys in Scott County are complex.”
“It goes beyond not having enough attorneys,” Tindal said. “Historically, the Scott County attorney‘s office has been difficult to deal with in terms of the discovery process — being able to easily see video evidence is just an example.”
He said “progress has been made” on that issue.
“The other issue has been that Scott County’s scheduling and procedural system has not been conducive to attracting out-of-county attorneys to work on cases in that county,” he said. “It has simply been hard to see clients and work with the prosecutors.”
He again stressed “the situation has been improving.”
“The County attorney‘s office has definitely been making progress,” Tindal said. “Everyone is pulling in the right direction.”
There are three things that can be done in Scott County to improve the prospects of luring contract attorneys, he said.
“One, make processing discovery easier for the defense attorneys,” he said. “Two, make reasonable plea offers and make them earlier in the process. And three, it would be nice if the County attorney picked up the phone and talked with defense lawyers.”
Back in late December, Tindal sent a letter to Susan Larson Christensen, the Chief Justice of the Iowa Supreme Court, outlining the complex issues threatening indigent defense in Iowa.
He touched on the issue of what contract attorneys are paid.
“There is no dispute: the hourly rate must be increased. There is no need to belabor this point. Briefly, however, we will note how important it is to put the rate issue into context … in 1979 the rate was $40 per hour, which was an increase from the pre-1978 rate of $25.00 per hour,” Tindal wrote. “The hourly rate has increased some over time, but it has come nowhere close to the rate necessary to maintain a business. By most calculations, $40.00 is worth approximately $145.00 today.
“To state the obvious, Iowa’s court appointed rates for contract attorneys requires us to operate at or near an operational loss.”
Contract attorneys representing clients charged with Class C and D felonies are paid $68 an hour. Those representing Class B felonies make $73 an hour, and attorneys handling Class A felony cases are paid $78 an hour.
Several former contract attorneys who worked for the the Iowa State Public Defender pointed out contract attorneys in Illinois make much more — at least $126 an hour — while attorneys contracted through the Federal Defenders program make $150 an hour.
According to a number of private attorneys in Davenport, hourly rates for most legal work start at $225 an hour. Most divorce cases land in the $350- to $400-an-hour range, and criminal defense can run even higher.
Private attorney Puryear said it is his opinion that the pay rate for contract attorneys in Iowa is so low because of basic “structural deficiencies” in the state’s public defense system.
“It’s a choice,” Puryear said. “State’s attorney‘s offices are budgeted much more than the Public Defender’s office. The police budgets of most cities are enormous.
“We have a system in Iowa where a person who makes, say, $15 an hour gets accused of a crime and has to bail out of jail. That alone will wipe out most bank accounts. And then you have to try and pay for an attorney. The system is set up to keep people in that system and puts them at a huge disadvantage.”
Tindal said he didn’t have hard numbers, but estimated upwards of 90% of the people arrested in Iowa qualify for a public defender.
“If Iowa cared about getting people good criminal defenders, they would pay for it,” Puryear said. “The pay rate sends a clear message to the clients of public defenders about just how important their rights are.”
‘This is akin to slavery’
Latham’s letter expressed frustration with the private attorneys in Scott County and the Seventh Judicial District.
“I am completely disappointed at the lack of response that the Court has received from the bar. To date there has been only one attorney who has contacted the Public Defender to become a contract attorney,” he wrote.
Puryear said he has no intention to volunteer for what he calls a “purposely broken system.”
“Here in my office, two attorneys have devoted about 100 hours so far in 2023 to representing people who cannot afford legal help,” he said. “But I’m not going to be compelled to support a purposely defective system.
“The state gives huge amounts of taxpayer money to those who investigate, arrest, prosecute, and jail citizens, and at the same time purposefully deprives those citizens of the means to have a fair defense.”
Puryear added: “The state doesn’t pay public defenders or contract attorneys enough, creating a shortage of defense attorneys for indigent clients. Then Judge Latham asks all of us to support this system by working for the state at rates way below what we would normally be paid. It’s ridiculous.”
It is “ironic,” he said, that the state wants attorneys to volunteer to serve as contract attorneys.
“Judges certainly don’t volunteer their time to help with cases,” he said. “Do prosecutors donate their time to help clients? Police officers aren’t asked to volunteer time to do their jobs.
“Why are defense attorneys asked to do this? This is a big problem. I’m not exaggerating when I say this akin to slavery. Slavery is compelling people to work against their will. That’s what this is.”
Puryear said he is much more interested in hearing how the state is going to fix what he calls “the system.”
That system is headed up by Jeff Wright. He is the director of Iowa’s State Public Defenders Office and reports directly to Gov. Kim Reynolds.
Under Wright’s office, 200 employees in 10 local Public Defender Offices and the Appellate Defender’s Office provide representation for poor and low-income people in all of Iowa’s 99 counties.
According to Wright, the Public Defender’s office in Davenport has a staff of eight, but three of them are not attorneys. The office is down three attorneys, and the state’s job board shows a listing for at least one — public defender fellow — open.
It pays between $55,000 and $85,000 per year.
“Maybe we can look at bail set so high people can’t afford an attorney,” Puryear said. “And look at the number of Public Defenders there are in the state and what they are paid.
“I’m tired of seeing the responsibility for the broken public defenders system placed on private attorneys. It’s not acceptable.”
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