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Lawyer wants hourly defender payments halted

FOR THE RECORD: This story included incorrect figures on the current rate schedules. The current flat fee for representing an indigent client on a misdemeanor is $180 and for first-degree murder $5,400. Because of a stated crisis in indigent defense, a Lincoln County district judge ordered contract lawyers to be reimbursed at $85 an hour, which could go as high as $1,200 for a petty misdemeanor without trial, and up to $30,000 for a capital crime that goes to trial, after which the attorney would have to get permission to bill additional hours. The petition seeks to stop that order.

An Albuquerque contract attorney for the Law Office of the Public Defender wants to flip a Lincoln County judge’s order requiring the defender office to pay $85 an hour rate to attorneys there rather than the flat fee per case paid other contractors statewide.

Liane Kerr, among the top five contractors with the LOPD in Bernalillo County, has petitioned the New Mexico Supreme Court to halt the hourly payment until the high court can “consider the issue in its entirety.”

She also wants the Supreme Court to tell the independent New Mexico Public Defender Commission, which has taken a public position in favor of the hourly rate, to “cease from interfering in the sound fiscal management of the LOPD.”

The June 29 “payment order” was issued by 12th Judicial District Judge Karen Parsons, who has since retired, requiring $85 an hour for attorneys in contract cases and $35 an hour for staff. The order came in a case in which the defendant was represented by Ruidoso attorney Gary Mitchell, who has been the primary contract counsel in Lincoln County for years and says he’s subsidized the defender office to the tune of hundreds of thousands of dollars.

Parsons found that the flat fee was insufficient to comply with Gideon v. Wainwright, the seminal 1963 U.S. Supreme Court case that said poor people must be given legal counsel if they can’t afford an attorney.

The New Mexico Supreme Court ordered responses to Kerr’s petition be filed by Aug. 4 by other parties named, after which it will decide whether to hear the case. They include the now-retired judge, the defender commission, the chief defender, the district attorney, the secretary of Finance and Administration and the defendant in the Lincoln County criminal case.

Kerr, who has been a contract defense lawyer for 23 years, said she wouldn’t mind getting paid more, but says the hourly rate “is unsustainable and will result in a fiscal crisis for the LOPD and the state of New Mexico on or before the end of 2015.”

Besides, she said in the petition, Mitchell’s argument to Parsons was that he might provide ineffective assistance of counsel in the case in question, not that he had.

“There was no finding that Mr. Mitchell had been ineffective,” Kerr wrote in the petition, and no record made of his prior acceptance of the flat-fee rates. The fees range from $1,200 for a misdemeanor resolved without trial to $18,000 for a capital crime – essentially first-degree murder – resolved with a plea, or $30,000 if the case goes to trial.

Kerr claimed Parsons considered only Mitchell’s arguments and no evidence that she considered how such a fee arrangement would be audited or how to implement a time-keeping system for underpaid contractors.

And she said the defender commission, which oversees the public defender department, “has abrogated its role in providing guidance only … (and) has immersed itself in the day-to-day operations of the LOPD which in turn will ensure financial ruin.”

Commission Chair Michael Stout of Las Cruces said the commission has not met to take a position on the Kerr petition.

But Chief Public Defender Jorge Alvarado, represented by the New Mexico Attorney General’s Office, agreed with Kerr that the Parsons order should be stayed. Alvarado’s response says the payment order “immediately and irreparably interferes with hundreds of critical indigent defense contracts with attorneys across the state.” Because their business models are based on the flat-fee arrangement, many aren’t prepared for timekeeping required by the hourly rate, Alvarado’s response says, and “hardships would ripple throughout the system … causing attorney shortages and other unforeseen difficulties.”

The Alvarado response also notes that the Legislature increased funding to the LOPD for the current fiscal year, but specifically barred the defender department from paying hourly reimbursement to contract lawyers.