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Indigent defense offices work hard to recruit attorneys

Jill Schramm/MDN Public defenders Eric Baumann, Ben Migdal and James Wiese, from left, visit in the rotunda of the Ward County Courthouse Wednesday. Other attorneys in the public defender’s office are Kalli Hoffmann and Timothy Wilhelm. Contracted attorneys are Ashley Gulke, Kyle Craig and Ashley Flagstad.

The hiring challenges facing public defenders’ offices in western North Dakota might not currently be as severe as those of prosecutors’ offices, but they are just as real, according to information from the North Dakota Commission on Legal Counsel for Indigents.

The commission reported earlier this month that it was seeking to fill three positions – two full-time Attorney II positions in Williston and a temporary attorney spot in Minot. The Williston positions are vacant, while the Minot position is to become vacant. The Ward County State’s Attorney’s Office, meanwhile, expects to be down five of its nine attorneys by May.

Attorney positions in public defender’s offices, especially in the western part of North Dakota, are usually advertised as open until filled because it can be several months before a candidate who meets the minimum qualifications applies. Eric Baumann, supervising attorney in the Minot office, said the ability to recruit varies.

“Sometimes it has been harder than others,” he said.

The Minot office has five attorneys hired by the state but also has three local attorneys working under contract, he said.

There has been difficulty in filling contracts, especially in the western and rural parts of the state, according to the state commission.

“However, the difficulty varies. There has been a reduction, statewide, in the number of qualified applicants for attorney and legal assistant positions, and for contracts. Where we used to see five or more highly qualified applicants for a position and several lesser qualified applicants, we might now see only one or two,” H. Jean Delaney, executive director for the commission, said in an email.

The commission has requested the 2019 Legislature provide additional funding to increase agency salaries and contractor compensation.

The American Bar Association’s principles call for parity between defense counsel and the prosecution with respect to workload, salaries and other resources. The commission has asked for an additional $943,000 for salaries, taxes and benefits for the next biennium to bring its agencies on par and maintain internal equity, Delaney said.

“Our agency employees are generally underpaid when compared to comparable governmental positions, and there has been significant turnover. Turnover is expensive. It is very expensive to hire, train and replace employees,” Delaney said.

The turnover rate for staff in calendar year 2018 was 37.5 percent. Pay was listed as a factor by eight of 15 staff members who left. In Ward County, total office turnover was 21 percent.

According to the commission, the contract attorney rate, generally $75 per hour, is less than the $140 hourly rate paid to federal panel attorneys in non-capital cases and by the counties to indigent defense attorneys in mental health cases and to civilly commit a person as a sexually dangerous individual, which typically is $90 to $100/hour. The last increase was on Feb. 1, 2012, when the rate was increased from $65. The commission is asking for funding to increase the rate to $85.

Most of the agency’s full-time attorneys are either from North Dakota or are graduates of the University of North Dakota. Delaney said there is some interest from out-of-state attorneys. However, the Attorney II position requires two years of experience, and a North Dakota law license.

“There is a higher level of interest among newer attorneys or recent UND Law School graduates because we usually advertise that we will consider underfilling the position as an Attorney I if there are no qualified applicants,” Delaney said.

Delaney added a mentor can be arranged for an inexperienced lawyer who indicates an interest in public defense.

The commission periodically contacts attorneys to see if they’d be interested in meeting with staff to learn about indigent defense. It contacts local courts to see who practices criminal law in the district and then follows up with those attorneys. It has held “meet and greet” events in rural judicial districts to encourage interest in indigent defense.

The commission, with the assistance of the State Bar Association, provides a summer training and encourages its attorneys to present, which in turn can increase interest in public defense, Delaney said.

The commission posts positions on state websites and with the law school, and hard-to-fill positions also are posted on national sites, such as the National Association for Public Defense.

“We email our contractors and employees about open positions and contracts and encourage them to forward the information on to anyone who might be interested. We email or call previous applicants who have requested being updated about future openings,” Delaney said. “To recruit for future openings, we encourage our public defender offices to have externs placed with them through UND Law School. If funding is available, we encourage our offices to have summer interns, or interns over college breaks. We are exploring other ways to increase law students’ interest in public defense.”

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