Counties seek exit from fixed fee program.

Byline: Matt Chaney

Eighteen months after it was implemented, two of the six counties participating in a legislature-mandated pilot program to pay court-appointed attorneys according to a fixed fee schedule have asked to be exempted from participation.

The program was the result of legislation introduced during the 2016 session that was eventually wrapped into that year's budget. Legislators directed the Administrative Office of the Courts to collaborate with the Office of Indigent Defense Services to create a uniform fee schedule to pay attorneys for representing indigent defendants in district courts in six pilot counties.

Under the program, which took effect on July 1, 2017, attorneys receive a specified fee for handling a particular type of case instead of getting paid at an hourly rate. Class A through D felonies pay $425, for instance, while most misdemeanors pay just $185.

Guidelines required that the AOC and the IDS pick two counties with small caseloads, two with medium caseloads and two with large caseloads. As a result, Macon, Watauga, Burke, Lincoln, Iredell and Davidson counties were selected to participate. Now, Watauga and Macon (the two smaller counties) want out, according to IDS executive director Thomas Maher.

In a report published in March, Maher said that there were problems from the beginning in those counties, and elsewhere, with complicated child custody and Department of Social Services cases, because the hours required to defend such cases varied so widely. He said that when the program took effect, judges in those districts complained of attorneys pulling their names from the indigent defense lists, and those who remained were overwhelmed by the resulting caseloads.

In the March report, one attorney was quoted as saying the fixed fees made it difficult for small practitioners in districts with small caseloads to make ends meet.

"[It's] hard to justify taking cases for $185," the attorney said in the report. "That barely covers overhead and I make about minimum wage to defend a client."

So in March the IDS recommended creating an opportunity for counties to opt out of the pilot program, either in its entirety or by cutting out some of the more problematic case types, like family law cases. Maher said if released, the counties will go back to paying the traditional hourly rate in order to prevent further court disruption.

Maher said he wasn't surprised when Watauga and Macon applied to opt out.

"The notion that it...