Many states have a public defender’s office that handles defending almost every person who is accused of a crime but that doesn’t have the money to hire an attorney. By having attorneys who work full-time for the public defender’s office, those states ensure there is representation available for the accused. The public defender system is far from perfect, and you won’t hear me sing its praises in general.
But, that system is much better than the contract attorney system used in Iowa. In the Iowa system, the public defender’s office has very few attorneys and instead subcontracts most cases to contract attorneys. These contract attorneys, who are attorneys in private practice, are paid at an hourly rate much lower than the rate any attorney would be paid by a regular client. The public defender’s office sets caps on how much they will pay for many cases, meaning that an attorney representing someone is pressured to not spend as much time as may be needed, since that attorney may end up doing the extra work for free. Adding insult to injury, the public defender’s office will routinely and arbitrarily decide that they think a particular time entry should have been smaller, and will refuse to pay the amount invoiced. The attorney is then left with the option of spending a bunch more time (for which they would not be paid) to fight the issue, or to just eat the loss of perhaps $20 and move on.
Although the state of Iowa has plenty of money to increase budgets for the police, prosecutors, judges, and other parts of the legal system, the pay provided to contract attorneys has actually gone down in terms of real dollars in the last 15 years. The tiny pay increases don’t even keep up with inflation, such that an attorney doing contract work in Iowa now makes about 30% less real money than they would have made 15 years ago (when the wage was already unreasonably low).
In sum, the contract attorney system underpays attorneys such that most attorneys want nothing to do with it.
The result has been fewer and fewer attorneys willing to do that contract work. This is unsurprising, as most people have no desire to work for an employer that pays them only about 20% of what another employer up the street would pay them. Iowa doesn’t expect people to pave the roads for 20% of the fair-market salary, and so it pays road crews a fair wage and has no shortages. Yet for attorneys the state doesn’t seem to get that. Or, perhaps more accurately, has designed a system that leads to the most vulnerable defendants being deprived of legal representation.
It is against that backdrop that I received the following email on March 9, 2023 from my local bar association, on behalf of the Acting Chief Judge:
Judge Latham has asked that the following be shared with our members:
All-
I was encouraged by the members of the bar who attended the meeting held on March 2nd to discuss the contract attorney crisis. As stated in my earlier email I was anticipating and encouraging a minimum of 20 attorneys attorneys to join the contract list.
I am completely disappointed at the lack of response that the Court has received from the bar. To date there has been only one attorney who has contacted the Public Defender to become a contract attorney. With this exceptionally low number, I am hoping this email will be the impetus to have many of you do the same.
If there is not a significant increase in the number of contract attorneys by March 17th, the Court will have no choice but to appoint all licensed attorneys to cases to meet the need of the indigent defense in this district the following week.
Henry Latham
I felt compelled to send Judge Latham the following response:
Dear Honorable Judge Latham:
I received the following email from you, by way of the Scott County Bar Association:
“Judge Latham has asked that the following be shared with our members:
All-
I was encouraged by the members of the bar who attended the meeting held on March 2nd to discuss the contract attorney crisis. As stated in my earlier email I was anticipating and encouraging a minimum of 20 attorneys attorneys to join the contract list.
I am completely disappointed at the lack of response that the Court has received from the bar. To date there has been only one attorney who has contacted the Public Defender to become a contract attorney. With this exceptionally low number, I am hoping this email will be the impetus to have many of you do the same.
If there is not a significant increase in the number of contract attorneys by March 17th, the Court will have no choice but to appoint all licensed attorneys to cases to meet the need of the indigent defense in this district the following week.
Henry Latham”
Upon reviewing that email, I felt compelled to reply to you, as I am respectfully but deeply troubled by both your assignment of blame for this situation, and by your proposed solution. As a member of the Bar I feel compelled to respectfully offer a response that I hope will help here.
In Your Honor’s email, you express how you are “completely disappointed” that attorneys in private practice have essentially all refused to join the court-appointed list, yet your email seems to sidestep the reason for that situation. Respectfully, the reality is that almost no attorney is interested in taking on criminal defense cases at a rate of pay that is about 20% of what the free market says our time is worth, especially when doing so would only serve to prop up a problematic system that is defective by design, and that is why your requests have gone unanswered.
As to the first prong – the grossly-below-market rate of pay – the situation is rather obvious so I won’t expend many words on this point. As Your Honor knows, pay for contract defense attorneys is so low as to cause many attorneys to conclude that they actually lose money doing the work. One would not expect a roofer, doctor, truck driver, plumber, electrician, accountant – or any other person – to choose to take on work at well below what their time is worth, and that same logic applies to attorneys. I’m sure the court system would have a hard time finding people to mop the floors, fix the roof, pave the parking lot, or do anything else in the courthouse if they offered only 20% of fair pay. It should come as no surprise that there is an attorney “shortage” when only grossly insufficient wages are offered.
But, it is that second prong – not wanting to prop up a system that is defective by design – that I respectfully suspect underlies most attorney’s refusal to join the court appointed list and actually matters much more than the insufficient rate of pay. Various levels of government in Iowa have consciously chosen to allocate massive amounts of money towards law enforcement salaries, law enforcement buildings, law enforcement equipment, prosecutor salaries, and judge salaries, while failing to allocate the funds to properly compensate contract defense attorneys or to hire public defenders. Indeed, even the meager hourly rates that contract defense attorneys were paid 15 years ago has been allowed to stagnate such that inflation lowered the real pay rate by nearly 30% in that time. This is a fundamentally broken system that operates to the detriment of justice, and so it is no wonder that most members of the bar don’t wish to participate in that system. To be blunt, when I read your email my thought was “why should I help perpetuate an unjust system that gives huge amounts of taxpayer money to those who investigate, arrest, prosecute, and jail citizens, and at the same time, purposefully deprives those citizens of the means to have a fair defense; why should I play a role in perpetuating injustice?”
Just so as to avoid confusion, and at the risk of repeating myself, I am confident that it is not “greed” on the part of attorneys that prevents you from finding a sufficient number of attorneys who are willing to handle contract appointments for defense. Just using my firm as an example, the two attorneys who work here have contributed over 100 hours of free legal services to deserving individuals in just the first 3 months of this year alone. I’m sure those numbers are in keeping with what many attorneys choose to do to help their communities, as most people seem to go to law school because they want to make the world a better place. So, myself and many attorneys take pride in providing pro bono legal representation, but joining the contract attorney list is not even remotely the same as actual pro bono work.
The idea of forcing attorneys into involuntary servitude to fix the shortage of contract defense attorneys is perhaps the most troublesome thing I’ve heard from a judge, and I say that both respectfully and sincerely. Since this is a quick email rather than a legal memo, I won’t belabor the general impermissibility of involuntary servitude other than to note that such enslavement (and yes, that is what it is) of individuals is strongly disfavored and is generally only permitted as punishment for a crime. U.S. Const. amend. 13 § 1. While there may be authority for a court to compel some services from members of the bar in narrow circumstances, I do not believe it is broad enough to allow the sort of mass involuntary servitude threatened in Your Honor’s last email.
I would also respectfully note that appointing attorneys (especially those who do not have familiarity with criminal cases, as you said you intended to do in your email) to represent people accused of crimes is deeply concerning, as criminal convictions can have life-ruining consequences for the accused, their families, and even their descendants for multiple generations. Although I enjoy criminal defense work, I know many attorneys do not. Indeed, I know some attorneys who find it to be downright upsetting to deal with alleged crimes, and those attorneys simply should not be forced to do a job they are not comfortable doing (and are therefore not very good at doing). Defendants deserve a competent defense put on by a skillful attorney who chooses to work in that field – not a defense of questionable quality put on by an attorney who is press-ganged into handling a case they are unprepared to handle.
Although I don’t believe it is my role to fix the contract defense attorney issues created by various layers of government here in Iowa, since I received your email in which I was expressly threatened with involuntary servitude, I feel that I have a sufficient interest in the matter such that speaking my mind on possible solutions is not only reasonable but necessary. Accordingly, I would respectfully suggest that Your Honor direct your efforts here towards causing the contract attorney pay structure to be a fair one such that attorneys want to do the work for the pay that is being offered. That is, afterall, how the State of Iowa gets people to voluntarily do every other job it needs done, and so it will work fine here too. I am supremely confident that there will be no shortage of attorneys taking on contract defense work if they are fairly paid for their time – just as I am confident that a Soviet-esq system of forcing people to do work they don’t want to do for unreasonably low wages is ineffective and un-American.
Finally, I would respectfully inquire what your intentions are as to the salaries of all other individuals involved in the involuntary servitude situation you have threatened to implement later this month. Specifically, would you also force the prosecutors, court reporters, court attendants, bailiffs, clerks, and other individuals working on such cases to give up 80% of their wages earned? Would Your Honor and the other judges give up 80% of your salary too? Or, is it your plan to only impose the burden of fixing the State of Iowa’s broken indigent defense system upon local attorneys in private practice (many of whom are younger, have significant student loans, have young children, and are generally less able to absorb that burden than the aforementioned individuals whose pay is not being effected)?
Your Honor, I thank you for your time spent reading this email, and hope that my thoughts have been helpful as Your Honor addresses this situation.
Very respectfully,
Eric D. Puryear
Attorney at Law
Puryear Law P.C.