Low pay for court-appointed lawyers shortchanges justice

I have always believed prosecutors play an important role in the fair and efficient administration of justice. They are not only advocates for the State of North Carolina’s interest, but are also ministers of justice. While their primary responsibility may be to hold defendants accountable, they must also see that defendants are accorded procedural justice. Defense attorneys likewise play a critical role in the process. Without good lawyers on both sides, the process does not work as it should.

It is not surprising that given how many people live paycheck to paycheck, many cannot afford to retain an attorney to advise and assist them during the difficult time when they are charged with an offense. For many, even paying court costs in traffic court cases ($188) wrecks their family budget. They, and our court system, must rely on the services of court-appointed lawyers. The bulk of the work on these indigent defense cases is done by private attorneys who are appointed by the Court to represent these defendants. A loose knit network of private attorneys or Private Assigned Counsel (PAC) make up the primary line of defense for indigent people accused of crimes in North Carolina.

Most of these defenders are smart, dedicated attorneys who feel strongly about their role and professional responsibility in protecting the constitutional rights and individual liberties of citizens. Yet, even the best and most committed lawyers struggle when they realize they may not have the resources to adequately prepare and competently represent their clients. In 2011, the North Carolina General Assembly was faced with making significant budget cuts to balance our State Budget, and among those was reducing the rate paid to PAC from $75/hour to $55/hour for all cases in District Court and $60/hour for most of the cases in Superior Court.

Many experienced lawyers have ceased to handle these appointed cases because the reimbursement payment is less than their out of pocket expenses of office overhead. According to a recent study by the North Carolina Office of Indigent Services, nearly one third of PAC had no staff in their office, and almost another 20% had only part time staff. PAC representing indigents are often times young, inexperienced lawyers practicing law alone without the benefit of staff or partners to guide and help them through the difficult struggles of representing those persons charged with crimes.

The North Carolina State Bar is the agency created by the General Assembly to regulate the practice of law and to protect the public by ensuring the competence of lawyers in their representation of clients. Its membership is made up of all the lawyers who are licensed in North Carolina. It is our collective responsibility to protect those indigent defendants who are provided PAC just as diligently as we protect those individual and corporate clients who select and pay their lawyers from their own funds.

We recognize the dire situation that exists in this area of legal practice in North Carolina, and especially our duty to protect those who cannot protect themselves. The failure to ensure competent representation of indigent defendants can result in improper convictions, inequitable sentences, unnecessary stress to victims, retrials and ultimately, increased costs to taxpayers.

In 2019, eight years after the serious budget cuts of 2011, North Carolina is now in a better place economically than we have been for years. Tax revenues are up $470 million more than projected this year, our budget is balanced with a surplus again this year and our rainy day fund is well-funded. We need to take a hard look at this underfunded, constitutionally mandated service that our courts have declared is our general societal responsibility. Providing legal defense for indigents is not the responsibility of lawyers alone, just like providing healthcare for indigents is not the responsibility of physicians alone.

At the North Carolina State Bar, it is our statutory responsibility to regulate the practice of law and ensure that all persons, including indigent defendants, who receive legal representation have competent counsel. This is an issue that has far reaching implications, and it is incumbent on us and our government to address it and prevent grave damage to our court system and public.

Colon Willoughby served as Wake County’s district attorney for 28 years before leaving office in 2014. He is a partner in the Raleigh office of McGuireWoods.