HELENA – Several months after the state of Montana said it was spending $1.5 million in federal pandemic relief money to shore up the public defender’s office in the Billings area and offer higher pay to contract attorneys, a group of attorneys in western Montana said they want a pay increase too.
“They’re not wrong in their assertions they need more money,” Brett Schandelson, development and operations bureau chief with the Office of State Public Defender, told the Montana State News Bureau. “On the other side, we are a state entity bound by legislative appropriation.”
OPD is working with the state budget office to find a way to increase pay for other contract public defenders, who take cases for indigent clients when attorneys in the local public defenders’ office have a conflict in representing them.
Last week, 10 private attorneys in western Montana said they would no longer take cases from the public defender’s office, beginning on April 1, unless they receive the same pay that contract attorneys in the Billings area receive.
“I don’t think it would be sustainable for this situation to last for a long period of time,” Schandelson said.
The increased pay in the region served by the Billings office came after Yellowstone County District Court Judge Donald Harris held the public defender’s office in contempt and fined the agency up to $10,000 after learning that as of July 31, 2021, more than 660 criminal cases did not have a public defender assigned.
Harris said some defendants could be innocent, others were sitting in jail because they didn’t receive a timely bail hearing and some who committed violent crimes may have their cases dismissed due to the lack of a speedy trial.
Attorneys working for OPD make about $13,000 less per year than other attorneys employed by the state, making it difficult for the agency to recruit and retain attorneys, the agency has said. Unassigned cases are usually outsourced to contract attorneys, but few were taking cases at the state rate of $56 per hour. The federal defense contract rate is $150 per hour.
The federal pandemic relief money temporarily increased the contract attorney pay in the Billings area to $71 an hour.
“I’m basically giving away two- or three-fourths of my time free to do OPD cases, which I don’t have a problem with at all, I love doing them,” said former public defender and current private attorney Melanie D’Isidoro. “But if someone else is making more than me just because they’re over in Billings, my position is that OPD needs to be following the statute.”
The state is seeking to hire a dozen public defenders in various cities with a pay range of between $55,000 and $71,000 per year, while the pay for a Billings public defender job starts at $65,000 and goes up to $84,000, depending on experience.
The pay for an attorney for the Public Service Commission ranges from $81,000 to $95,000, according to a current job listing.
The Office of State Public Defender is planning to ask the 2023 Legislature for money money to pay public defenders and contract public defenders, Schendelson said.
“Ultimately, it’s going to be up to the Legislature,” he said. “But I think everyone is understanding now that these issues are real, it’s not just OPD crying wolf. We do have the lowest paid attorneys in the state and we are well below the market rate.”