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(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates/Conflicts with/Companion to/Relates to

SOURCES OF INFORMATION

Administrative Office of the Courts (AOC)

Public Defender Department (PDD)

SUMMARY

Synopsis of Bill

HB 445 revises the fee schedule for private attorneys who contract with the PDD to serve as counsel for indigent persons pursuant to the Public Defender Act. The bill requires that the fee schedule conform to rates paid by the Risk Management Division of the General Services Department to contract attorneys who defend tort liability claims against governmental entities and public employees to the Tort Claims Act.

Significant Issues

The bill raises the main issue of determining an appropriate pay rate for PDD contract attorneys.

FISCAL IMPLICATIONS

Both the AOC and PDD estimated huge costs to the general fund if HB 445 is passed. Currently, Risk Management attorneys are paid anywhere from eighty dollars an hour to one hundred fifteen dollars an hour depending on experience. PDD contract attorneys are paid on a per case per category basis where felonies can range from five hundred to six hundred dollars; misdemeanors can range from one hundred and fifty dollars to one hundred and eighty dollars; and juvenile cases can range from one hundred and eighty dollars to three hundred dollars.

AOC estimated that a PDD contract attorney is paid roughly thirty dollars an hour, which is some 200 percent less than Risk Management attorneys. In order to establish an average hourly rate for contract attorneys, the PDD used the median hourly rate of the Torts Claim Act, which is approximately ninety-eight dollars an hour. According to the PDD, the average number of attorney hours per felony is 15 hours; per misdemeanor is 5 hours; and per juvenile case is 7.5 hours.

These attorney hours per case are estimates and actual billings per case could be significantly higher, especially as more cases are going to trial. In addition, there are no hourly caps per case per billing provided for in the Torts Claims Act.

The PDD estimates that it will contract out approximately 11,712 felony cases, 8,312 misdemeanor cases and 4,434 juvenile cases in FY 99 or 39 percent of the department's entire caseload for the fiscal year. If all these cases were paid for at the proposed hourly rate multiplied by the number of hours per case per category, the total contract cost would be $24,416.0. This amount exceeds the PDD's current FY 99 budget of $21,436.5.

ADMINISTRATIVE IMPLICATIONS

According to the PDD, the department does not have sufficient financial division or administrative division staff to implement and monitor the proposed shift to a contract attorney hourly rate structure. The PDD would need to hire five new FTE at a cost of $125.3 in order to implement and sustain this operation. The FTE includes a contract specialist, budget analyst, financial specialist, account technician and a clerk.

TECHNICAL ISSUES

The PDD believes it would need to develop a new computer tracking and accounting system. The cost associated with this programmatic change cannot be determined given the current information.

OTHER SUBSTANTIVE ISSUES

HB 445 dramatically raises PDD contract attorney fees. While the department supports an increase for contract attorneys, it foresees several problems should the bill be adopted.

1. Without a cap on billable hours, it will be impossible for the PDD to provide accurate budget projections of contract attorneys from year to year.

2. The PDD does not have sufficient administrative staff to adequately monitor and manage a contract counsel program where enumeration is based on billable hours.

3. Contract attorneys would be paid so much more money than regular PDD staff attorneys that it would adversely affect the department's ability to recruit and retain staff attorneys.

4. The Chief Public Defender pursuant to the Public Defender Act, would be required to review the demand for contract counsel legal services on a cost/benefit basis and determine whether or not additional PDD district offices would be a more cost effective, manageable method of providing quality indigent defense in the state of New Mexico.

ALTERNATIVES

According to the PDD, one alternative is to fund the department's contract counsel line item at the requested FY 2000 level of $9,300.0.

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