Crisis looms as California appellate defense counsel faces shortage of attorneys

Five appellate projects were founded in the 1980s to train and pay private counsel to represent indigent criminal defendants on appeal in non-capital cases. While the projects have been regarded as a great success, they are now at a crossroads as many of the attorneys who take on these cases are nearing retirement, and the hourly pay has fallen so low younger attorneys won't take the work, several sources said.

"The number of attorneys is just going down dramatically, and they see this as becoming a crisis, probably in the next year or two," said Administrative Presiding Justice Brad R. Hill of the 5th District Court of Appeal, who gave the keynote address at the annual conference of California Appellate Defense Counsel in March.

CADC is an umbrella body for the five nonprofit appellate projects - one for each of the state court of appeals except for the 3rd and 5th, in Sacramento and Fresno, which share one. The projects select attorneys and train them to handle appeals. In addition to criminal appeals, they handle appeals of juvenile and dependency cases. Collectively the attorneys on these panels handle roughly 9,000 criminal matters every year.

Ten years ago, 919 attorneys throughout the state were signed up to do this work, now it is 637. Perhaps most ominous, the number of attorneys applying for work with the panels has dropped two-thirds over 10 years.

"The trend line has been going down. There's no way to turn it around absent some increased funding," Hill said.

The current pay ranges from $110 to $130 per hour. By comparison, the federal court system pays $172 per hour for panel attorneys to do this work. The State Public Defender's Office and county public defenders all offer more competitive pay. Compounding the problem is that today's young lawyers are typically saddled with debt and there is no mechanism for student loan forgiveness for working on a project panel.

Lawmakers rejected a $40 per hour increase that was proposed for this year's budget, but CADC plans to try again next year. But the sorry state of the budget isn't encouraging, even though the money the projects want is comparatively tiny.

"It's a pretty low-profile budget item," Hill said.

Kyle Gee, who chairs a CADC committee that liaisons with Sacramento, said the pay has fallen incrementally through the various booms and busts of the state budget. In 1998, the top rate was $85 an hour. That is $170 in today's dollars adjusted for inflation.

"It has been slowly falling behind. Not by anybody's bad intentions. It's just the budget process has been complicated," Gee said.

People who spoke about the process said it is easy to forget just how much value the projects bring because they tend to fly under the radar. They point to the many criminal justice reform laws Sacramento has passed in recent years as an example.

"If we don't have those attorneys filing those appellate briefs, all the new legislation coming out of Sacramento - the Racial Justice Act and other sentencing reform measures - there won't be anyone to bring those cases to the appellate courts," Hill said.

"Criminal law changes fast, and it is complex," Gee added. "There's new areas of law coming out all the time and the number of appeals is going up as the size of the group that takes them is reducing."