A merry-go-round of defense
Legal representation for those in need is ongoing challenge
When a defendant can’t afford an attorney, Judge Michael Powers has to find one.
With changes in laws, fewer attorneys taking court appointments, conflicts with other cases, and hourly rates half or less of those charged for private practice, it’s not always easy.
“Let’s face it, the real money is not in criminal defense,” Powers said. “If you know you’re going to be able to count on a certain income stream, then you’ll do it until it becomes more of a hassle than it’s worth to you, and then you’ll quit. That’s why you’ll see attorneys come onto that list, do it for a while, then not want to do it anymore.”
When Courtney Boehm was elected county attorney last fall, Powers’ options essentially fell by two, as he couldn’t appoint her or her husband, Hillsboro attorney Josh Boehm, to argue cases against her.
County counselor Susan Robson, also in private practice in Marion, is limited in what cases she can take, Powers said, because of conflicts created when she was county attorney.
Powers appoints attorneys for felony, misdemeanor, fish and game, traffic, and juvenile offenses, but the most complex in terms of finding attorneys are cases involving children in need of care.
“Sometimes you can get like two moms and two dads, it’s all mixed up, and now the kid has ended up with this guy and this woman, but these other people helped produce all the kids that are in that unit,” Powers said. “Everyone in that situation needs an attorney. You could have easily five to seven attorneys involved in one case. It’s not that unusual. Those cases drag on, so those are often the highest priced ones we have.”
Attorneys in felony cases are paid by the state, but district court pays for the rest. Court-appointed attorneys in Marion County cost the court $92,599 in 2016, about $5,000 to $7,000 more than the average salary for an attorney in Wichita or Hutchinson.
Powers said he tried to be equitable about assigning cases, but conflicts, limitations on types of cases accepted, and availability combined to skew about 75 percent of last year’s payments to three firms.
Seth Meyer, an attorney who lives near Marion and has offices in Cottonwood Falls, Council Grove, and Emporia, was paid $32,590. McPherson-based law firm Boyer and Price received $27,093. Lalouette Law, the Hillsboro practice of former county commissioner Lori Lalouette, received $10,144.
“I look at every voucher,” Powers said. “Every one of them has a timesheet. I ask them to be reasonable. If it looks a little high, I’ll just put that voucher aside and ask them about it.”
Court-appointed lawyers often face challenges from defendants who didn’t choose them and believe them to be inferior, Powers said.
“They don’t have any skin in the game because they didn’t pay you up front,” Powers said. “From movies and TV, there’s this whole thing that public defenders are incompetent. I’ve heard it a zillion times, ‘I want to get a real attorney.’ The fact of the matter is that most of the people that are taking these do a lot of it, and they know it inside out.”
People have to fill out financial statements to demonstrate need for court-appointed attorneys, Powers said.
“Often they just don’t have a job, or they don’t have a job that pays very much,” Powers said. “You can be working full time, but if you’re making $10 an hour and you have even one child, you don’t have a lot of extra spending money to pay a retainer to hire an attorney.”
Payment plans based on ability to pay are set up to try to recoup some of the costs, Powers said. Court trustee Ed Wheeler is paid to collect unpaid fees.
“It comes back in dribbles and drips,” Powers said. “We don’t track it. All we do is try to collect as much as we can.”
Keeping an adequate number of attorneys to take court appointments will continue to be a challenge, Powers said.
“Lawyers don’t want to go to small towns anymore,” he said. “It’s like everybody else; when they come out of school, they want to go to the bright lights and big cities. If you want to live in this part of the world, as opposed to Kansas City or Wichita, if you want to have the pleasures of small-town living, you’re going to have to scratch out a living. There aren’t that many businesses around to serve. I think it really reflects the changes of practicing law in a small town.”