A case in Port Orchard Municipal Court was recently at the forefront of Judge Timothy Drury’s mind, not for the details of the alleged offense but the light it sheds on an alarming statewide attorney shortage.
In an effort to deal with that issue, the City Council on June 11 voted to increase the city’s payouts for the services of conflict defense counsel or a judge pro tem.
The case involved two young men who were allegedly road racing and were given charges of reckless driving. While one obtained an attorney through the city’s contracted firm – LaCross & Murphy PLLC – for public defense, the other was still in need of a new defense attorney due to conflict of interest issues. The court is obligated under state law to provide counsel to people, and the city pays those costs when the person is considered indigent.
The case in all likelihood could be resolved in a pretrial diversion agreement given the defendant’s lack of a prior criminal history, Drury said. “This would probably be something that an attorney would come in, talk to him, talk to the prosecutor, come to court and probably an agreement would be made. They may take two or three hours to do that.”
The judge instead found himself the latest court official to witness defendants — this man and at least three other people this year — enter their cases without counsel, an issue that he fears could either provoke legal action against the city in the name of constitutional rights or force cases to be dismissed entirely on those same grounds.
“At some point, either somebody’s going to sue us for not providing legal counsel or I’m going to have to dismiss that case as a violation of his speedy trial rights. Neither one of those is a good thing,” he said.
Drury said the latter resolution had not been reached yet, nor had what he called the nuclear option of just pulling in attorneys for cases whether they want them or not. City leaders instead hope a fix or bandage at the least can be found in the payment increase to conflict counsel, which had previously paled over time in comparison to rates provided at Kitsap District Court less than half a mile away.
The council voted to raise the fees to a flat rate of $550 for defense counsel and the pay for a judge pro tem to $100 per hour.
Given the choice between a $475 flat fee for all cases in the district court vs. the city’s previous $55 hourly rate with a maximum of $550, Drury said counsel would tend to work with the familiar economy of scale provided at the county level.
“If you have ten cases a month that you get paid $475 for, then you’re making almost $5,000 a month just doing that kind of work,” he said, returning his thoughts to the reckless driving case. “To bring somebody down from up in the district court to the municipal court to handle a case out of their normal for a hundred bucks is not very likely at all.”
Drury hopes the new rates will appeal to an attorney’s office that works in district court to do the limited work, with the court anticipating just 10 cases a year when conflict counsel is needed.
The options appear to be open to virtual legal representation as well after Councilmember Fred Chang inquired whether the city was allowed to do so. “Zoom is still a thing,” Drury answered. “We get a lot of attorneys from Pierce County who represent clients in Port Orchard Municipal Court who never leave their office. That happens quite often.”
Councilmember Heidi Fenton asked why the rate of $550 was being considered as opposed to $500 or $525, to which Drury responded that the rate had already been established as a maximum in the current pay structure. “I want to make sure that we are making it lucrative enough for someone to actually want to do it,” he said.
