WHEELING, W.Va. — The West Virginia Public Defender Services’ plan to reduce payments to court-appointed attorneys as of Jan. 18 is meeting heavy resistance across the state.
PDS Executive Director Dana Eddy outlined the cuts in an email last month to attorneys who take appointed cases not covered by the state’s salaried assistant public defenders. The state has 133 full-time assistant public defenders and more than 800 “panel attorneys” taking cases by judge appointment.
Three Wheeling panel attorneys, who asked not to be named because they may be involved in pending litigation before the West Virginia State Supreme Court of Appeals, say the pay cuts fly in the face of West Virginia Code, which states that court-appointed attorneys, known as panel attorneys, shall be paid at a rate of $45 per hour for work performed out of court and $65 per hour for in-court work.
The code specifies that out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings and pre-hearing or pre-trial research. Meanwhile, in-court work includes, but is not limited to, all time spent awaiting hearing or trial before a judge, magistrate, special master or other judicial officer.
The emergency guidelines submitted by Eddy eliminate payment for mileage and sets $20 per hour for travel time as part of work performed out of court. Previously, attorneys made $45 per hour and 57 cents per mile for travel. The “waiting in court” time is being cut to include only time when the court proceeding was scheduled to begin and ending when the proceeding actually begins.
Charleston attorney Anthony Majestro reportedly will file a petition for a writ of mandamus against PDS asking the state Supreme Court to stop the guidelines from taking effect. It will also argue that the current rate of pay is unconstitutionally low.
The amount court-appointed attorneys are paid for their time hasn’t been raised in more than 25 years, and one Wheeling attorney said it’s frustrating to try to meet 2016 bills with 1990 money.
Eddy said in fiscal year 2015, full-time public defenders handled 33,000 claims for $7.8 million less than panel attorneys working the same amount of cases.
“It is something we should consider when we work to deliver quality legal services to the indigent citizens of West Virginia with money available to us,” he said.
Eddy said a huge difference between full-time and panel attorneys is that the full-time lawyers have support staff behind them to handle administrative work.
Eddy also said a number of panel attorneys who are abusing their billing hours and travel expenses take the focus away from the majority who are delivering honest services. He said the state has no system in place to monitor or flag potential inflated vouchers before they reach the circuit judges’ desks for approval.
“We need to consider developing a monitoring or alert system to catch abusive billing midstream,” he said.
Some attorneys consider the state Legislature’s consistent underfunding of PDS as fiscally irresponsible because it historically appropriates about half of PDS’s annual budget, then tells PDS to submit a supplemental appropriation request to cover the shortfall.