Contract/Conflict Attorneys

The State Public Defender (SPD) office has established an hourly rate for contracted attorneys at $100/hour for non-capital cases.  The $100 rate is based on Idaho Criminal Rule 44.2(b), as a baseline for contract/conflict public defender representation.

For Capital cases – when a person’s case is eligible for the death penalty – the rate is $150 hour for lead counsel and $125 an hour for second chair/co-counsel.

All public defense contact attorneys will have access to the Lexis research and training platform for no cost to use for cases with indigent defendants.

No. The SPD is following American Bar Association standards and will not have flat fee contracts. We’ve concluded that a uniform hourly pay rate for our contracts is a matter of basic fairness.  The $100 per hour rate is an increase for the majority of contract attorneys.  The SPD will be zealously advocating for a larger appropriation that may allow us to pay contractors higher hourly rates going forward.

The American Bar Association has determined flat-fee contracts, where an attorney or firm gets a set amount of dollars to provide public defense, may discourage robust record keeping and is a “payment structure (that could) reward counsel for doing as little work as possible.”  Requiring contract attorneys to bill by the hour and keep records and case notes provides accountability and helps ensure that each client gets the best possible service.

No. All contracts will be with individual attorneys, not firms. Every contract attorney in non-capital cases will receive the same $100 hourly rate.

No. There will always be a need for contract attorneys to handle conflict cases and to represent clients in locations that don’t have enough cases to require an institutional office.

The SPD will assign cases to contract attorneys in the 30 Idaho counties without an institutional office. All public defense attorneys and staff in Idaho – state employees and contractors – will use the LegalServer CMS to manage their cases. SPD administrative staff will be able to use that data – including time and resources spent on every case – to make statewide policy and funding decisions. This data will be critical to informing the Idaho Legislature about what resources are needed to effectively and efficiently do the work.

Yes.  Data must be centralized for effective representation of clients and to provide accurate information for resources and accountability for State funds. All time spent on a particular case must be logged in to the CMS. A contracted attorney’s pay will be directly connected to time and work recorded in LegalServer. There is no charge for contract attorneys to use LegalServer.

No. There is no cost for contract attorneys to use the LegalServer case management system (CMS). The State Public Defender office will provide training and support for the CMS.

Yes.  All contractors will need to track time in LegalServer in 6 minute or 1/10^th of an hour increments. 

Because it will determine how much contract attorneys get paid and how much time it takes to provide clients with a robust defense in every case. That data will be used by the SPD to set budgets and work with the Idaho Legislature to ensure that public defenders in Idaho have the resources they need. We are measuring workload – not caseload.  We need to figure out the scope of the statewide work – and tracking time with LegalServer is the best way to do that.

No. The State is not a party to those contracts. All contract attorneys doing public defense work will contract with the State Public Defender before October 2024. 

Yes, there will be standard contracts and policies for both contract primary and conflict attorneys.

Once an attorney enters an appearance or is appointed on a case, absent a legitimate reason to withdraw and permission of the court, the attorney is obligated to continue to represent their client. If a contracting attorney finishes their cases or after October 1, 2024, the SPD will contract with them through the conclusion of the case/s at the current SPD rate.

All cases will be assigned to the State Public Defender Office. The SPD will assign all contract (non-conflict) cases.

The Alternate Counsel Division (ACD) will assign attorneys to conflict cases.   The ACD will assign CPA cases except when an institutional office or primary contractor represents the juvenile in a related JCA case or represents the parent in a related criminal case. 

All private attorneys who sign a contract with the State Public Defender can also take private clients. How a contract attorney manages their workload and balances their public defender vs. private case work is exclusively up to them.  However, the SPD expects all case work for public defense to be done at the highest level and requires Constitutional representation in all contract cases. 

The SPD will provide an attorney for every child and parent under I.C. 16-1614(2)(a) in a child protection case where there is a finding of indigency. The Alternate Counsel Division (ACD) will assign Child Protective Act (CPA) cases except when an institutional office or primary contractor represents the juvenile in a related Juvenile Corrections Act (JCA) case or represents the parent in a related criminal case.

We will not provide an attorney for guardians ad litem (GAL).

The county in question can choose to find pro-bono attorneys to represent GALs or ask the Court Appointed Special Advocate (CASA) program to provide an attorney to represent the GALs or contract with an attorney.  If the county contracts with an attorney to represent the guardian ad litem, the county can seek reimbursement from the SPD. This funding is limited to $500,000 for each fiscal year. Once that funding is gone, the counties will have to cover additional costs.

For guidance on reimbursement, the addition of I.C. 57-828 to Senate Bill 1367 should provide some answers.

Contract and conflict attorneys will select a primary county to practice in. If the SPD asks them to take a case to another county outside of the primary county, the “windshield time” rate will be $50 an hour for travel time. The SPD will not pay travel or expenses for travel between Contract Counsel’s home and their office. Allowable travel time is calculated to and from Contract Counsel’s office unless travel from Contract Counsel’s location (i.e., home or jail or prison) to the official destination is shorter. 

A contract attorney will be able to submit a request to the SPD for approval. Investigators will be paid $65 an hour. Certified paralegals will be paid $45 an hour.

Investigators are professionals who are qualified by education, training and/or experience, to investigate the facts relevant to the who, what, when, where and how, of a charged offense.

Paralegals are professionals who have a two-year paralegal certificate or an associate or bachelor’s degree in paralegal studies from a paralegal program or college/university, and who perform specifically delegated substantive legal work that would otherwise be done by attorneys. Non-substantive work traditionally done by administrative support staff, including clerical work such as calendaring, data entry, printing, and file organization, is not paralegal work.

The expectation is that contractors will handle their assigned cases themselves. Vertical representation is required.  However, if a contact attorney needs help due to an illness or other unforeseen or emergency situation, attorneys can ask another state-contracted attorney to cover for them with SPD written approval.  With that written approval, the attorney stepping-in will track their time in the CMS and be paid the regular rate directly from the State. Private attorneys that do not have a contract with the SPD cannot do indigent public defense work, even on an emergency basis.

In counties without an institutional office, contract attorneys will be paid by the hour for handling first appearances.

The SPD will withdraw from a case after the client is sentenced and restitution is resolved, unless the case is in the district court on appeal from the magistrate division.  If a probation violation is filed, the SPD will need to be reappointed by a judge.  Probation violations will be assigned to the attorney who handled the original case, if possible.