The head of West Virginia's Public Defender Services last week rescinded the "emergency guidelines" set to take effect today, which would have cut the amount attorneys taking court-appointed cases are reimbursed for their time.
A formal notice was filed alerting Dana Eddy and other state officials that a handful of lawyers that take court-appointed cases would sue over the guidelines. The notice also said that the lawsuit will ask the state Supreme Court to raise the current rate of pay, which attorneys argue is unconstitutionally low.
Charleston attorney Anthony Majestro said last week that despite withdrawing the emergency guidelines, he will go forward with the petition for a writ of mandamus asking for the pay rates to be increased.
In an email Thursday, Eddy wrote that, "Due to the amount of the request for a supplemental appropriation that has been submitted to the Legislature, Public Defender Services is withdrawing the Emergency Guidelines that were issued on the date of December 18, 2015."
Eddy, executive director of PDS, had said the guidelines were necessary after realizing there isn't enough money to reimburse lawyers who submitted vouchers after Sept. 16.
If the new guidelines would have taken effect, attorneys no longer would have been reimbursed for mileage and would have been compensated $20 an hour for travel time. Lawyers receive $45 an hour for travel time, and 57 cents a mile in mileage reimbursement. Time spent "waiting in court" also would have 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. Rates for lawyers in family court are set by the West Virginia Supreme Court. County public defender offices also are separate.
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 will still 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 notice also points out how often Public Defender Services is months behind in paying attorneys for their work.
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.
Reach Kate White at
kate.white@wvgazettemail.com,
304-348-1723 or follow
@KateLWhite on Twitter.