A public defender shortage in northeast Wyoming could financially cripple private attorneys as well if they’re forced to take public defense cases, some lawyers told Cowboy State Daily this week.
Circuit court judges of Wyoming’s Sixth Judicial District, which comprises Campbell, Weston and Crook counties, sent a letter to private attorneys in their region last week, asking them to help fill in for public defenders.
There’s a lawyer shortage in Wyoming and particularly its northeast corner, sharply affecting public defense. The Wyoming Public Defender’s Office said it will stop taking Sixth Judicial District misdemeanor-level cases by Feb. 1.
In response, the judges are urging the area’s private attorneys to sign up to help “those in need” — and fill a Sixth Amendment constitutional responsibility to provide counsel — at the rate of $100 an hour paid by the state.
If too few attorneys sign up to ease the defender shortage, the judges may give them no choice and appoint them on a rotating basis, the judges’ letter says.
While $100 an hour may sound like a lot to an individual, it’s not enough to sustain a law firm with its own employees, overhead and other demands, Gilette-area attorney Steven Titus of Steven Titus and Associates told Cowboy State Daily on Tuesday.
"That's nothing," he said, adding that it's unfortunate the Public Defender's Office is in crisis.
For the court to start appointing private counsel is supported by law, but it’s a “dangerous precedent” at the $100 an hour rate, he said, adding that private attorneys “fresh out of law school” can often bill $150-$200 an hour. And many law firms have multiple staffers, overhead, utility bills and other expenses, he said.
The region has great judges and courthouse staffers and is a “great place to practice law,” Titus said, but the lawyer shortage looks like a problem for the Legislature to fix by offering more money for the public defense budget.
“The Legislature is about to be in session,” said Titus. “Sounds like they’ve got a problem they need to fix.”
But Also …
Casper-based attorney Ryan Semerad of the Fuller and Semerad Law Firm agreed that being appointed at $100 without travel reimbursements (which the judges’ letter doesn’t address) could harm some private practices.
There are other ways the Legislature can ease the problem that have nothing to do with the budget, Semerad said in a Monday email to Cowboy State Daily.
“I think (lawmakers) should be careful about creating new crimes and extra processes — like special appellate rights for prosecutors — that burden criminal defendants and their attorneys, given the lack of attorneys already manifesting itself,” said Semerad.
He’s referencing House Bill 52, a proposed law that would let state prosecutors appeal judges’ dismissals and many pre-trial orders.
If the law goes into effect, prosecutors will be able to wage appeals in the middle of criminal cases. It would implement more oversight of trial judges, but is likely to slow criminal proceedings significantly and multiply the work of lawyers on both sides of the criminal justice system.
Semerad also floated other strategies to help defenders, like establishing statutes of limitations on Wyoming crimes, even if just for misdemeanors and nonviolent felonies, and decriminalizing marijuana.
He said he also hopes that, if judges have to appoint private attorneys, they’ll be able to consider “many factors in the office and at home” when appraising the availability of attorneys.
“I am 100% behind helping,” said Semerad, noting that his office already does some low-cost and volunteer work. “But I worry about cases being assigned to private attorneys who do not have extra time, staff, or support to do these matters. We also have obligations to be prepared for our cases, to zealously advocate for our clients, and to take every case we have to trial if necessary.”
Wyoming State Public Defender Brandon Booth told Cowboy State Daily on Monday that having private defenders appointed on a rotating basis is, hopefully a last resort.
"The goal is not to open that door for budget reasons and out of respect for the private counsel and their own obligations to their firms," said Booth. "As always, many moving pieces connected to these types of issues."
The agency is trying to create internal "stop gaps" during its upcoming term of unavailability, Booth said. He also clarified that the public defender's office would pay travel costs if attorneys have to cross the different northeastern counties to fill the void.
They Did OK Though
Booth said yes, disinterest in public defense can boil down to annual income, but there are other prominent factors in the case of Wyoming.
He described a vicious cycle of public defense attorneys having heavy caseloads and being overworked due to office vacancies. And those office vacancies may stem from lawyers simply not wanting to go into public defense.
“I guess it would be nice if there were more people just interested in doing the work we do,” said Booth. “That’s the issue. The Legislature has made a pretty good effort to try to help us with our caseload in various forms.”
The Legislature allocated $28.6 million to the Wyoming Public Defender’s Office for the 2018 biennium, and boosted that number in 2020 to $34.8 million. The state pays its practicing attorneys roughly between $29-$66 an hour.
The public defender's office could "never" match the rates private attorneys are accustomed to, Booth said.
Public defense is “really just different work, and it (takes a) kind of a mindset or a belief to be able to do it for a long period of time,” said Booth.
He declined to opine on specific pitfalls in the job.
But Semerad did, saying criminal defense work in general can be emotionally taxing, time-consuming, “and it can be thankless.”
“My general sense is that, right now, Wyoming does not have enough attorneys across the board,” said Semerad. “And the ones that are here have a lot of work on their plates already.”
Clair McFarland can be reached at clair@cowboystatedaily.com.
