Public defenders in Connecticut could see a pay increase if a new legislative proposal is approved, and officials at the Division of Public Defender Services say the agency would face a crisis without it.
The Appropriations Committee, the legislative body helping oversee the state budget, recognized the potential state of emergency Tuesday when it advanced a proposal that included a $23 million increase over two years for assigned counsel in the division, contract attorneys who handle criminal and child welfare cases.
The increase is less than the almost $46 million officials had requested. Gov. Ned Lamont had recommended no increase in his budget proposal.
If the proposal doesn’t get support from the House, the Senate and Lamont, officials and employees in the division believe indigent people who haven’t had their representation needs met could file a class action lawsuit against the state.
“This is a true possibility. This is not an idle threat, and I understand it,” TaShun Bowden-Lewis, Connecticut’s chief public defender, said.
“We see what other states are doing and other agencies within our own state,” she said, and pay increases have “to happen in some form or fashion. It’s needed, and it’s fair.”
The Division of Public Defender Services has experienced a tumultuous last month after several members on the agency’s oversight board resigned without explanation, prompting Lamont to appoint new members.
The resignations, in part, had to do with “intractable disagreements between Bowden-Lewis and the board concerning hiring, management and spending,” according to The Hartford Courant, while some said they saw the disagreements as racist efforts to undermine Bowden-Lewis, appointed the first Black chief public defender last year, and her desire to diversify the agency’s attorneys.
But a six-page memorandum obtained by The Connecticut Mirror and presented earlier this year to a subgroup of the Appropriations Committee revealed that the division has bigger problems that materialized well before Bowden-Lewis, who maintains that she and her client-first mentality haven’t changed, took office.
Work not valued
Hourly rates for all assigned counsel haven’t increased since 2007, are lower than other state agencies and are lower than other New England states, according to the memo. The division has experienced a sharp reduction in assigned counsel and expects to have hundreds of declined assignments by attorneys in the coming months.
In testimony before the Appropriations Committee in February, Alix C. Walmsley, the director of assigned counsel for the division, acknowledged the magnitude of the $46 million request but said the division was at a critical point and losing experienced attorneys “because our pay rates are terribly low.”
She and Bowden-Lewis noted that assigned counsel represent some of the state’s most vulnerable residents, many of whom are people of color, impoverished, abused and neglected children, and adults contending with the loss of parental rights. Walmsley also said assigned counsel feel “their important work is not understood or valued.”
“We are having more difficulty assigning cases, with less variety of experienced attorneys to choose from. Attorney turnover means justice is delayed,” Walmsley said. “With a shorter list of attorneys, those we do have must be asked to take more. Unless we pay these attorneys a living wage, we will experience delays and, at some point in the near future, we will likely have great difficulty making assignments.”
The hourly pay rates for the contractor attorneys currently sit at $65 and $75 for either criminal work or family court work, according to the memo. For comparison, the hourly rates for attorneys with the governor’s office and attorney general are $650, $500 and $350, while paralegals earn $150.
The division has experienced a 30% reduction in its assigned counsel workforce since 2020, while officials project to have more than 3,400 declined assignments by the end of the current fiscal year.
The number of criminal cases that assigned counsel has declined soared to more than 1,700 so far this fiscal year — an increase by nearly 700 compared to the last two fiscal years combined, according to the memo. The number of declined child welfare cases has also grown.
In a statement to the CT Mirror, David Bednarz, a spokesperson for Gov. Ned Lamont’s office, said Lamont would review the Appropriations Committee’s budget proposal but stood by the governor’s work in recent years to help the assigned counsel.
“The FY 2023 budget adjustment bill that Gov. Lamont signed into law last year provided funding to increase the assigned counsel hourly rate from $50 to $65,” Bednarz said in an email. “Additionally, the FY 2023 midterm budget adjustment included $4 million in ARPA funding for the Division of Public Defender Services to hire temporary public defenders to manage cases that had accumulated during the pandemic. The resulting rates are comparable to our neighboring states, including Massachusetts at $65 per hour, and Rhode Island at $50 per hour.”
But Lamont’s hourly rate increase only covered assigned counsel with low-level misdemeanor cases, Bowden-Lewis said. American Rescue Plan Act, or ARPA, funds were temporary. And the rates Bednarz listed in Rhode Island and Massachusetts are for low-level cases, according to the memo. For more serious cases, both states pay up to $100 and $120 per hour, respectively.
'Wasn't worth it'
Sen. Cathy Osten, D-Sprague and co-chair of the Appropriations Committee, said she and other lawmakers were unaware that the situation was so dire and believes the 40% budget increase recommended by the committee will put the state in a situation “far better than where we were at.”
While the memo says that any lower increase than the division's $46 million request would likely not resolve the significant problems, Bowden-Lewis said any increase would help the division and that she and her colleagues would wait to see what lawmakers decide in the coming months.
“There are still going to be some people who aren’t going to take the cases," she said. "So we have to judge it by how our assigned counsel are going to react to it.”
Middletown attorney Chris Oakley is one of the assigned counsel who stopped accepting new cases because, he said, “it just wasn’t worth it anymore.” He’s contracted to handle child custody cases and parental removal cases in juvenile court.
Oakley said the hourly rates are even lower when factoring in court time, which isn’t covered by the rates. In family matters, for example, attorneys are paid a flat fee of $500 for the entire case, whether it lasts three weeks or three years.
On top of that fee, the attorneys can only charge a $65 hourly rate for certain legal proceedings, such as visitations with a child, if they are representing that child, or an actual trial. Oakley said other costs a private attorney may bill for, such as pre-trial court appearances, phone calls and legal research, are included in the flat fee.
“It’s not uncommon that you’ll get a case where you put in about 30 hours of work but can only bill for the four or five hours where you actually were in court,” Oakley said. “Attorneys call it 'low bono' work instead of pro bono work.”
He said the loss of attorneys puts more stress on those left behind, who “are inundated with cases.”
Over the past two years alone, 123 assigned counsel, out of roughly 400 employees, contracted with the division have stopped taking assignments, Bowden-Lewis told lawmakers. By the end of the fiscal year, the number of refused assignments by attorneys will likely have increased by 80% over a three-year period, according to the memo.
If a lawyer declines a case, the division must find another available attorney who doesn't have any conflicts that would bar them from a case, sometimes delaying court appearances or overburdening some attorneys. It also creates inconsistency for and a lack of trust among the people seeking adequate representation, officials told lawmakers.
“It is kind of astonishing to me that the pay scale is what it is, considering we are representing children that have been abused or parents trying to keep the state from taking their children away," Jennifer Celentano, an attorney, told the CT Mirror.
Celentano is one of a dozen lawyers on a New Haven panel of assigned counsel who handle child welfare cases. She has had a contract with the Division of Public Defender Services since 2007. She said family cases are time-consuming and can last years. She has represented children who were 8 years old and remained her clients until they were legal adults.
With more attorneys refusing assignments, Celentano has been asked to take on an additional workload, she said, hindering her ability to take on private cases with more financial incentive. She said she feels obligated to help with the extra cases, particularly when they involve children.
“What other field do you know where the pay rate has been the same for that many years? It speaks volumes about how the state views these cases,” said Celentano, adding that the state is leaving itself open to a class action lawsuit.
Connecticut faced a similar lawsuit in the 1990s for underfunding the division. The state, led by then Gov. John Rowland, eventually settled the case by raising compensation rates, agreeing to hire 80 new attorneys for the office and computerizing the agency's operations.
In a press conference Thursday, Jeffrey Beckham, Lamont's secretary for the Office of Policy and Management, said the state doesn't "want to get sued."
"We obviously want to do right by those people and the people they serve," Beckham said. "It's a very important part of our criminal justice system. We want to make sure everyone has a right to counsel and the right to a fair trial."
Enfield attorney Alyssa Pershan said she began taking on assigned counsel work in 2006 after opening her own practice. The work provided her with new business and was an opportunity to meet other attorneys and “to learn to get in front of a judge.”
Now it affords her long hours and inadequate pay.
“I have to go to criminal court and sometimes sit there for hours waiting for a case to get called or to meet with the state’s attorney or the judge, and I’m only getting paid my flat fee for doing all that,” Pershan said.
“All the attorneys who do this long-term are doing it for the kids they represent,” she said. “There are a huge amount of attorneys who really care and keep doing these cases even though they are getting paid peanuts.”