A Charleston attorney has given the state official notice that he will challenge "emergency guidelines" that would cut the amount lawyers taking court-appointed cases are paid for their time.
On behalf of a handful of attorneys and law firms who take court-appointed cases - also known as "panel attorneys" - Anthony Majestro said he will file a petition for a writ of mandamus with the West Virginia Supreme Court against the state's Public Defender Services. The petition will ask the court to stop the guidelines from taking effect next month and also argue that the current rate of pay is unconstitutionally low.
The amount court-appointed attorneys are paid for their time hasn't been raised in 25 years.
Public Defender Services fails "to adequately and timely compensate panel attorneys for their time and expenses," Majestro wrote in the notice, which was sent Dec. 23.
Dana Eddy, executive director of Public Defender Services, sent an email last month to attorneys who take court-appointed cases, in which he introduced the emergency guidelines. The email stated there isn't enough money to reimburse lawyers who submitted vouchers after Sept. 16.
Public Defender Services will ask for an appropriation to cover the rest of the fiscal year (which ends June 30, 2016), but Eddy said he doesn't expect that amount to be sufficient.
Under the new guidelines, which are set to take effect Jan. 18, attorneys no longer will be reimbursed for mileage and will be compensated $20 an hour for travel time. Previously, lawyers received $45 an hour for travel time, and 57 cents a mile in mileage reimbursement. Time spent "waiting in court" also has been more narrowly defined, among other cuts.
In addition to people charged with crimes, court-appointed lawyers often also represent children involved in abuse and neglect cases in circuit court and those involved in mental hygiene proceedings. The rate cut doesn't affect county public defender offices or court-appointed lawyers in family court, where rates are set by the state Supreme Court.
The move by Eddy infuriated many lawyers across the state who take court-appointed cases. The attorneys are often required to drive long distances to court, jails and to the homes of their clients, Majestro said.
This week, about 50 lawyers met in Flatwoods to discuss how to challenge the guidelines. Many more attorneys took part in the meeting by phone, Majestro said.
Some attorneys may file separate lawsuits but Majestro, who concentrates in appellate litigation, was asked to file the petition on behalf of attorneys Michael Sharley, Christopher Watson Cooper, the Ciliberti Law Office and Hewitt & Salvatore, and the clients they represent. Majestro doesn't take court-appointed cases. He said more plaintiffs may be added to the petition before its filed with the Supreme Court.
Majestro will ask the state Supreme Court to do what it did in a 1989 case, Jewell v Maynard, in which an attorney filed a lawsuit arguing that he had a conflict of interest in representing his client because he wasn't being adequately compensated for his time. In that case, the rates for court-appointed attorneys hadn't been increased in 12 years.
The Supreme Court ruled in the attorneys' favor and raised the rates in 1990. The pay has remained the same ever since: $45 per hour for out-of-court work and $65 an hour for in-court work.
Justices at the time determined the rate of pay based on the federal court system, which currently pays court appointed attorneys $127 an hour for both in and out of court work, according to the notice.
Meanwhile, attorneys in West Virginia who handle family court case appointments are paid $80 an hour for out of court work and $100 an hour for work done in a courtroom. The Supreme Court sets the rates for those cases.
The Supreme Court "has recognized that low compensation to panel attorneys appointed to represent indigent criminal defendants constitutes a potential constitutional violation for both the attorney and the client," Majestro wrote in the notice.
The notice also points out how often Public Defender Services is months behind in paying attorneys for their work.
"Second, the time has come to recognize and remedy the inordinate delays in payment of PDS panel attorneys," Majestro wrote. "Unfortunately, the promise of prompt payment has been largely illusory."
The delay often results in attorneys selling their reimbursement request vouchers to companies who take a percentage of their money so that they can get paid sooner.
Those who cover family court appointments get paid within 30 days, Majestro noted.
Eddy, who could not immediately be reached for comment last week, said last month that the guidelines were being implemented to ensure everyone gets paid at a time when state agencies have been asked to cut expenses.
He previously acknowledged that he was cutting money from attorneys overdue for a raise.
"Court-appointed counsel are due for a raise and here we are talking about paying them even less," Eddy said last month.
State law requires notice be given to state agencies before a lawsuit is filed. Majestro sent the notice to state Attorney General Patrick Morrisey, Secretary of Administration Jason Pizatella and Eddy.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1724 or follow @KateLWhite on Twitter.