Official Government Website

Contract/Conflict Attorneys

Thirty counties in Idaho do not have established public defender offices. Prior to 2024, the board of county commissioners contracted with private attorneys to do public defense work.

All of Idaho’s 44 counties must sometimes hire private attorneys to do public defense work if there are conflicts of interest between lawyers, the people they are representing, and the courts.

All contract and conflict attorneys are now required to have a contact with the State of Idaho to do public defense work by Oct. 1, 2024.

Those attorneys and staff will report and work with the District Public Defenders and executive staff at the State Public Defender office.

Frequently Asked Questions

Is the SPD hiring contract attorneys?

Yes. The Idaho State Public Defender is looking for contract attorneys to take primary and conflict public defense cases across the state.

Contract attorneys accept cases they want and decline those they don’t, allowing flexibility to mix private and public cases to best fit their practice. Case types include felony, misdemeanor, juvenile, child protection, and post- conviction. 

Send a message to Info@spd.idaho.gov for more information.

How does the SPD pay contract and 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.

Will there be any flat fee contracts?

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.

Why are there no flat fee contracts?

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.

Will there be specific and unique county-wide contracts for public defense?

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

Is the goal to get rid of contract attorneys and replace them with state employees?

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.

How will the SPD manage contract attorneys across the state?

The SPD assigns 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.

Do contractors have to use the LegalServer CMS?  Why?

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.

Do contractors to pay for LegalServer access?

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.

Do contractors have to track/account for their time?

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

Why is it so important to track case time?

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.

Is there be a standard contract that contractors must sign? 

Yes. There are standard contracts and policies for both contract primary and conflict attorneys.

How will contractors be assigned cases?

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 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. 

Can contract attorneys also have private clients – and will there be load limits?

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. 

How will the SPD manage Child Protection cases? What about Guardian Ad Litem situations?

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.

How will contract attorneys be paid for mileage/travel?

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. 

What if a contract attorney needs to hire an investigator or a paralegal to work on a case?

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.

Can other attorneys cover for a contractor in the case of an emergency?

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.

If a contract attorney covers a first appearance, how will they be paid for their time?

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

What about clients who are sentenced to probation?

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.

What is the difference between an institutional public defense office and contract attorneys?

Find the answer to this and all of your other questions on our FAQ page.

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