Fearing a ‘crisis,’ Erie County courts plead for money for lawyers who represent the poor
Erie County Council meets on Tuesday to vote on final budget for 2024
Package includes $800,000 request from local courts to bolster program to provide constitutionally required representation to indigent defendants
Court administrator cites case of suspended lawyer, says more money is needed as other lawyers are quitting contracts due to high caseload, low compensation, limited resources
The Erie County Court of Common Pleas wants to avoid another situation like the one that led to the four-year suspension of James P. Miller, a court-appointed lawyer who was disciplined on Nov. 20 for “serial neglect” of his indigent clients.
The local courts are seeking an additional $800,000 in the 2024 Erie County budget to prevent a similar legal fiasco and help the justice system better meet one of its constitutionally required mandates.
The courts must provide reliable and quality legal representation to indigent clients — those who are accused of a crime or who are dealing with certain other legal matters and cannot afford an attorney on their own. The local courts are seeking the additional funding to help hire and keep court-appointed lawyers.
“We have to be able to retain these lawyers,” said Bob Catalde, the district court administrator for the Erie County Court of Common Pleas. “Every year we lose lawyers. I want qualified, dedicated lawyers to apply.”
Catalde is working with Erie County President Joseph M. Walsh III on the funding proposal, which is Walsh’s initiative. Catalde said the $800,000 would help pay the court-appointed lawyers at their current contractual rate, which the county boosted this year to make the jobs more attractive.
The new rate is $2,900 a month for lawyers appointed to represent indigent adult criminal defendants.
But even at that rate, up from $1,900 a month, the court-appointed lawyers are handling an average of 10 cases of indigent clients a month, or $290 a case per month — an amount that could represent the hourly rate for some attorneys. And the court-appointed lawyers are handling their contract caseloads at the same time they are litigating cases as part of their private practices.
“Every single year, we need to reach out” to find court-appointed lawyers, Catalde said.
To make the jobs more desirable, Catalde said the county would use some of the additional $800,000 to offer health insurance and other benefits to the court-appointed lawyers, who currently receive no fringe benefits from the county. He said the money would also provide funding for the court-appointed lawyers to hire investigators and expert witnesses to aid them in defending their indigent clients.
“I have already had lawyers approach me who said they heard this might be happening,” Catalde said of the court-appointed lawyers getting health benefits, “and they expressed an interest in applying if this does happen. Very good lawyers.”
Request comes in a budget with big tax increase
Whether the local courts get the additional money is up to Erie County Council, which is to meet in a regular session on Tuesday to vote on the 2024 budget. The deadline for passage is Thursday.
As president judge, Walsh urged County Council to approve the additional funding.
“I believe that we have both a legal and moral obligation to fill these positions with qualified attorneys,” Walsh wrote in a letter to council on Nov. 17. “Given the reality of the climate and challenges we are now faced with, in order to fulfill our obligations, we need to fill these positions by offering benefits to the applicant.
“I truly wish that there was another way to handle this situation. I don’t want to call it a crisis at this point, but if this doesn’t get addressed appropriately, we are on a collision course for that.”
Walsh wrote that the courts “are more than willing to do our part to help offset the added expense that will be created. If increased filing fees, reduction of other court positions, or any combination of measures to help soften the blow can be provided by the Court, I am a willing partner!”
Erie County Executive Brenton Davis also supports the addition of the $800,000, and included the increase in his proposed budget for 2024. If the money gets approved, the local courts would set up a separate department, which Catalde would head, to manage the program for court-appointed lawyers.
“The courts have had a horrible time getting attorneys” for the court-appointed jobs, said Erie County Finance Director Paul Lichtenwalter, who helped develop Davis’ proposed 2024 budget. “People are quitting.”
“The thought was — on the part of the president judge and the court administrator — that if they were to pay people benefits along with a salary stipend, that they would get better attorneys and more attorneys would apply for these jobs,” Lichtenwalter said.
“We just need a better pool of attorneys to pick from,” he said. “So that we can make sure that when the Public Defender’s Office can’t handle cases we’re giving the defendant the best possible defense.”
But money is tight.
Due to inflation and other factors, Davis’ proposed budget is also calling for a tax increase of 14.3% to keep up with county expenses and pay for initiatives, including the boost for the court-appointed lawyers. As the Erie Times-News has reported, the hike, if County Council passes it, would be the largest for county government since 1983 and would cost an additional $85 for the owner of a home assessed at $100,000.
County Council has been grappling with proposed tax increase and other aspects of the budget in meetings on the spending package over the last several weeks, culminating in Tuesday’s meeting. Councilman Terry Scutella, a Democrat whose 1st District encompasses western Millcreek Township, has been working with Catalde on the proposal for the court-appointed lawyers as part Scutella’s role as head of council’s Personnel Committee.
“I know it is a serious problem,” Scutella said of the difficulty in finding court-appointed lawyers. But, he added, “Can we find the money?”
Pa. requires counties, not state, to fund public defense
The government’s obligation to provide counsel for indigent defendants is a bedrock principle of the American justice system. In 1963, in its landmark ruling in the case of Gideon v. Wainwright, the U.S. Supreme Court held that the Sixth and Fourteenth Amendments guarantee a right of legal counsel to anyone accused of a crime.
In Erie County, the Public Defender’s Office picks up most of the cases of indigent clients, but the county still needs to pay another 24 lawyers to act outside counsel to take on cases in which the Public Defender’s Office has a conflict of interest.
Of the 24 lawyers, six of them handle adult criminal cases and are paid $2,900 a month. The other 18 “conflicts counsel” under contract handle cases involving juveniles, dependent children, parents in dependency cases and other matters. Those lawyers are paid in the range of $2,900 to $3,700 a month, according to county figures.
Erie County also has another five lawyers to act as court-appointed counsel in homicide cases, which the Public Defender’s Office does not handle. The lawyers on the homicide rotation receive a maximum of $10,000 for each homicide case, though they can petition the courts for more money if a case is more complicated or time consuming than usual.
The lawyers on the homicide rotation would not be eligible for health benefits and other benefits under the proposal for the other court-appointed lawyers, Catalde said. He said those benefits would not be available to the homicide lawyers because they are paid per case rather than per month.
The county is responsible for paying the outside appointed counsel for indigent clients, whether the lawyers are handling homicides or other cases.
The state pays the salaries of judges in Pennsylvania as well as top court administrators for each county, but Pennsylvania requires each county, and not the state, to fund the costs of providing representation to indigent clients. Pennsylvania is the only state in the nation that does not fund public defense, leaving the counties to fully cover the costs.
Gov. Josh Shapiro sought to change the situation by putting $10 million for public defense in his first proposed budget as governor. The money would help counties.
The proposal has been tied up in the General Assembly. Shapiro signed the main budget bill in August, but lawmakers are still working on passing fiscal code bills that would release more than $1 billion in state funding for a variety of services — including for public defense.
Passage of the code bills has stalled during the dispute over a proposed private school voucher program. At odds over that proposal are Shapiro, a Democrat, and the Democrat-controlled state House and the GOP-controlled state Senate.
The funding for public defense, now at $7.5 million, is in House Bill 1300, a huge fiscal code bill. The House amended the bill on Oct. 4 and sent it to the Senate Committee on Rules and Executive Nominations on Oct. 16. The bill remains before that committee.
Suspended lawyer’s case points to problems
Erie County is not waiting on state funding for public defense. Catalde, the court administrator, said the courts and county are trying fix the problems as quickly as possible.
In recent years, Catalde said, the county has had particular difficulty finding court-appointed lawyers and keeping them under contract year after year. The county has also had problems filling other jobs since the pandemic.
This year, one of the six slots for the attorneys for indigent adult clients is exclusively for appeals, and another lawyer on the list is under two contracts, Catalde said. That means four lawyers are getting paid $2,900 a month each to handle an average total of 40 active criminal cases a month, or 10 cases a month per lawyer.
The case of James P. Miller, the suspended lawyer, illustrates what can happen when one of the court-appointed lawyers stumbles. Due to demand, Miller was under two contracts for adult indigent defendants, but he was not meeting with his clients or filing paperwork on time in many of the cases.
Miller’s representation was so poor that Erie County Judge John J. Mead in May 2021 removed him from 50 cases after the judge and Catalde tried to work with Miller to resolve the lack of representation.
On Nov. 20, the state Supreme Court accepted the recommendation of its Disciplinary Board and suspended Miller’s law license for four years, effective Dec. 20, due to his “serial neglect” of his court-appointed clients in Erie County in 2019 to 2021.
The Disciplinary Board faulted Miller for “his repeated failure to properly serve his clients, in particular through his complete abdication of the duty to communicate with clients,” according to the board’s report and recommendation on Miller’s case.
Catalde cited the Miller case as an example of what can happen with lawyers under contract to represent indigent clients.
Scutella, who heads Erie County Council’s personnel committee, said Miller’s case has come up in the discussions on the additional funding for court-appointed lawyers. No one at the county, Scutella said, wants to see something like the Miller case happen again.
“You have to protect from doing that,” he said.
Addition of health benefits seen as major incentive
Catalde and others believe the addition of health benefits for the court-appointed lawyers will go a long way to improving the hiring pool and increasing the number of applications. They said health insurance can be particularly costly for solo practitioners and lawyers in small firms.
The county offering health benefits for court-appointed lawyers “would be something huge,” said Erie attorney Bruce Sandmeyer.
Sandmeyer, a sole practitioner, was under contract as one the court-appointed lawyers for indigent adults years ago, and he is currently on the list of outside counsel for homicide cases. Sandmeyer is an Army veteran and gets health insurance through the military. He said an offer of health insurance from the county would be a boon to lawyers who need insurance and are under contract as court-appointed counsel.
“If you are on your own, and you are buying health insurance for your family, it can be an awful expense,” Sandmeyer said.
An effort to ensure ‘proper representation’
As they ask for more money, the local courts realize they do not exist in a financial vacuum and that the county is also trying to address other funding requests, Catalde said. But he said the courts also must deal with the Constitution.
The courts and the county want to ensure that the court-appointed lawyers receive enough funding so that everyone is “defended properly,” said Lichtenwalter, the county’s finance director. The county and courts, he said, do not want anyone coming back and saying, “Hey, I wasn’t defended properly.”
The courts need the money, Catalde said.
“The timing is bad. We understand that,” Catalde said.
He also said: “We have to be concerned about the effective administration of justice. We are constitutionally obligated to make sure the people of Erie County have the proper representation.”