Update (7/19/23): The Allegheny County Court of Common Pleas has increased the payment it provides to court-appointed attorneys for defense of indigent defendants, in a move that drew mixed reviews today from a lawyers’ group.
In a June 28 order by President Judge Kim Berkeley Clark, the court increased the hourly rate for court-appointed attorneys from $75 to $80 for some lower-court procedures and specialized court cases, $90 for misdemeanors and $100 for nonviolent felonies. Rates for violent felonies and homicides were already $110 an hour.
The order also raised the cap on payment for a single non-violent felony case that goes to trial from $2,000 to $3,000 for nonjury trials, and $4,000 for jury trials. Maximums for misdemeanors are lower, while they are higher for violent felonies, ranging up to $20,000 for capital murder cases.
The Allegheny Lawyers Initiative for Justice, a coalition of reform-minded attorneys, applauded the “first step” in a press release.
“But there is much more work to do. Even with the increase, the appointed-counsel system is still severely underfunded, and pay rates still lag far behind similar locales,” the initiative wrote in a press release.
Reported 5/15/23:
Allegheny County inching toward fix for cut-rate court-appointed lawyer system
When two parents faced child endangerment charges because of poor housekeeping, attorney Kate Lovelace was appointed by the court to represent them. Though they cleaned the house and the Office of Children, Youth and Families intended to withdraw from the case, according to Lovelace, the district attorney’s office filed felony charges.
A lawyer since 2005 and now a candidate for district judge, Lovelace’s approach to the case was rooted in her belief that a defendant “should feel like you can count on somebody, if you tell them your trauma and your story and you invest in that, that they’re going to be there with you every time that’s questioned and challenged.”
She worked with the couple and another attorney to beat the felony charges at the preliminary hearing — and the Allegheny County Court of Common Pleas paid her $250.
Criminal defendants in the county who can’t afford private attorneys, known as indigent defendants, often find their fates in the hands of lawyers who get paid based on caps set in 2006. For a preliminary hearing involving anything from retail theft to a violent felony, these lawyers are compensated $250 regardless of how much time they spend on the case. Depending on the attorney appointed to their case, a defendant could face outcomes ranging from dropped charges to a life-altering felony sentence.
According to Lovelace, the modest compensation can deter court-appointed attorneys from vigorously committing themselves to defending indigent clients.
“The whole way that this system is designed is so you should plead something out at the first listing [for a hearing] to make the most money,” said Lovelace. “That is the incentive and that doesn’t sit right.”
In response to questions from PublicSource, court officials wrote that they are on the verge of revising the rates.
“We recognize that the fee structure is out of date and needs to be changed — including the rates, maximums and overall structure,” wrote Joseph Asturi, director of communications and intergovernmental affairs for the Fifth Judicial District of Pennsylvania, which manages the Allegheny County Court.
The court appoints attorneys to represent indigent defendants when the Office of the Public Defender can’t take on the case due to a conflict of interest. In 2018, the year cited in an Allegheny County Bar Association [ACBA] report on the system, court-appointed attorneys handled around 1,800 criminal cases.
Court-appointed attorneys are paid $75 per hour they spend on a case, but there are caps on the amount they can be paid based on the type of case or proceeding they are handling. If a non-homicide case ends in a plea deal, for instance, the attorney is paid a maximum of $750.
“The current structure of the court-appointed payment system is doing two things: One is discouraging competent lawyers from taking on these cases because the financial constraints are so tight,” said attorney Justin Romano. “And it is disincentivizing lawyers from really doing diligent defense work, doing zealous defense work because there are fee caps that are low.”
According to Romano, a lawyer of 13 years who often takes on court appointments, the modest financial compensation for the amount of work that comes with an indigent criminal case makes it so that “you’re really losing money in some instances”
The court revisited the rates.for homicide cases in 2022 given that so few attorneys would take them on for $3,000 (now $6,000). And hourly rates were lifted in 2013 from $50 to $75. But other caps haven’t been adjusted in 17 years.
“They’ve not increased with inflation. They’ve been totally static,” said Romano.
Asturi wrote that the recent increase to rates for homicide cases is an “interim step to a longer-term solution” for making attorney compensation more comprehensive. He did not detail the emerging fees and caps.
According to Romano and other attorneys, the compensation they receive is not nearly enough, especially considering the amount of time it takes to meet with a defendant and gather information on the case.
“It’s the most important justice issue in Allegheny County right now … the fact that we underpay and underfund this court-appointed indigent defense counsel system,” said attorney Rob Perkins, who has been an advocate for increasing compensation for court-appointed lawyers.
Attorneys are able to file motions asking the court to designate a case as complex to be compensated beyond the fee cap, but this process is sometimes not worth the additional work and attorneys learn to “just live within the fee cap structure,” according to Romano.
Asturi said such motions are often granted but agreed that the system must be adjusted so that attorneys won’t need to file a motion.
“An attorney should only need to file such a motion in an unusual case — which is not currently the situation,” said Asturi. “The new fee structure should significantly reduce the need for attorneys to file motions to have a case designated as complex.”
Below-market rate is not viable for most
Perkins started his career as a public defender in Allegheny County. After a short time working as a legal aid for nonprofits in Boston, he and his family moved back to Pittsburgh where he rejoined the public defender’s office. He later decided to leave, “for a variety of reasons, partly financial,” and open up his own private practice.
“When I left the public defender’s office, to put it in context, we paid my babysitter more than my salary. So it was not a very long-term [job],” said Perkins.
As recently as last year, base pay for early-career public defenders in Allegheny County was around $46,000.
Perkins chose to continue to represent indigent clients and take court-appointed cases because his “heart [was] still in social justice.”
He came to believe that he has been seriously undercompensated for that work and led the charge to document that.
In August, a subcommittee of the ACBA — chaired by Perkins — published a report titled Improving the Delivery of Indigent Defense Services to Allegheny County, which argues for the need to provide better compensation for court-appointed attorneys.
The report suggested that current caps discouraged vigorous representation.
“Doubling is not even good enough,” said Perkins. “It needs to be more than that.”
As part of the report, a survey found that more than 90% of attorneys found the caps to be too low. It recommended a series of caps, from $2,000 for defending a misdemeanor to $20,000 for a capital homicide case.
“No one’s doing court-appointed criminal defense work to get rich,” said Romano. “I think it’s important work. And you know, whether you’re indigent or whether you’re rich, you’re entitled to competent legal counsel.”
The current compensation system for court-appointed attorneys also pays lower than local federal courts and similarly sized cities, according to Perkins.
In federal court, court-appointed private counsel have a maximum fee cap of $12,800 for a case that results in a guilty plea, which is 17 times the $750 fee cap that the Allegheny County court provides for similar cases.
Cuyahoga County, which includes Cleveland, caps court-appointed lawyer compensation for defending an indigent client charged with murder at $9,000. That’s 50% higher than the $6,000 maximum now paid by Allegheny County for a murder defense.
This issue is not just an Allegheny County issue, said Perkins. It’s a “Pennsylvania issue,” given that the state doesn’t fund indigent defense itself.
“It falls to each individual county to fund indigent defense. And that’s a problem and that’s got to be fixed at the state level. And because each individual county is responsible for funding indigent defense, there’s a lot of inconsistency and inequity in how various counties do it,” said Perkins.
Allegheny County budgeted $90.4 million for courts this year and $11.8 million for the Office of the Public Defender. Court-appointed attorney pay comes from the court budget.
Philadelphia’s courts pay court-appointed attorneys at rates and caps similar to those in Allegheny County.
Gov. Josh Shapiro has proposed that the state include in its next budget funding for public defense.
Lack of compensation is a ‘justice issue’
Attorneys including Perkins and Romano said the main roadblock preventing them from taking more court-appointed cases was the low compensation.
Unlike public defenders, who work directly for a county-run office, private attorneys who do court-appointed work must pay rent for an office to work in, compensate any employees they hire and cover various expenses such as gas used driving to court hearings. Court-appointed attorneys must also petition the court for permission to hire investigators (capped at $500) or expert witnesses (capped at $2,000) that they’d like to use in a case.
“A lot of high-quality attorneys, they just stopped taking the cases because they don’t want to work for Allegheny County for free,” Perkins said. “And in fact, they lose money because they’re paying more overhead than they’re getting compensation from the county.”
Attorney Dave Zuckerman said he stopped accepting court-appointed cases after 2019 due to it not being economically feasible.
“You create a system where the pay is so low that it disincentivizes lawyers from fighting for their clients. I think it ultimately has an impact on outcomes and that’s an injustice,” said Romano.
‘A warm body is not good enough’
Perkins was recently appointed to a case involving an indigent defendant facing a misdemeanor charge for retail theft. Perkins said the defendant was clearly guilty, but a misdemeanor on her record would have made it especially difficult for the pregnant woman to get a job.
He drove to a magistrate outside of the city on three separate occasions for preliminary hearings — the first of which never happened as the defendant had just given birth.
He said the fee cap incentivized him “to close the case the second time I went out there with a summary-level conviction and say, ‘Hey, it’s not a bad outcome.’” Instead, he convinced the court to allow the defendant to take a retail theft course, which ultimately resulted in the court withdrawing the misdemeanor charges. He then got her record expunged.
Perkins said if it was his loved one facing criminal charges, he wouldn’t just want a “warm body” standing in to defend them but would “want the competent attorney who’s going to invest in the case and do their best.”
Those who take indigent defense can’t afford private representation. In cities like Pittsburgh, where Black workers have been found to earn roughly two-thirds what white men earn, this creates a situation in which lackluster indigent representation can exacerbate already existing racial disparities.
“The system we’re all a part of disproportionately impacts poor people. And disproportionately impacts people of color,” said Perkins. So effective criminal defense for the indigent “is certainly an equity issue, a fairness issue and a social justice issue.”
“Whenever people accused of crimes have shitty lawyers, it decreases their trust in the [legal] system,” said Perkins. “If they don’t trust the system, then the consequences and the data shows that there’s actually an increased recidivism rate.”
Attorneys call for change as updates near
After tense negotiations last year, the United Steelworkers Union, which represents public defenders in Allegheny County, won a new contract that included, among other things, a $20,000 increase for those attorneys.
The court is set to announce a new compensation system for court-appointed attorneys within the coming weeks, according to Asturi, who added that it’s been in the works since before the ACBA subcommittee’s report came out.
While it’s unclear whether the court will match the rates recommended by the ACBA report, Asturi said the court is considering the findings as it implements changes.
The report suggests a $110-per-hour rate with caps of:
- $2,000 for misdemeanors
- $5,000 for non-homicide felonies,
- $20,000 for capital homicides.
Some may view the fight to increase compensation as “a bunch of attorneys who want more money,” Perkins said, adding that the issue of underpaying attorneys is much bigger than just money.
“The issue is that I want people that don’t have the means to hire the top attorney to have a fair and equitable defense and to get a fair outcome,” he said. “So it’s about results for poor people who get treated unfairly in the system when they don’t have adequate defense.”
Dakota Castro-Jarrett was an editorial intern with PublicSource from January to May and can be reached at castrojarrett.d@northeastern.edu.
Betul Tuncer was an editorial intern with PublicSource from January to May, and can be reached at bst9@pitt.edu.
This story was fact-checked by Sophia Levin.
