At the end of 2024, Kanawha County Circuit Court Judge Maryclaire Akers made a notable request to local lawyers.
In a message circulated by the West Virginia State Bar, Judge Akers described a “crisis” brewing in Kanawha County courtrooms: there were not enough lawyers willing to accept court appointments.
In tens of thousands of cases filed each year, a person has a right to be represented by a lawyer – provided by the state – because that person faces a serious deprivation: the potential loss of their freedom or their family connections or their right to parent.
In circuit courts last year, state prosecutors filed 10,530 criminal charges. An additional 3,534 charges were filed against children alleging a crime or “status offense” – i.e., a behavior prohibited by law because of one’s status as a child (for instance, missing school or smoking). The state initiated 5,472 petitions of abuse and neglect – cases that require courts to assign an attorney for each child, parent, and respondent adult. In the state’s high volume magistrate courts, a whopping 110,875 cases were filed alleging misdemeanor crimes. In each of these cases, a person is entitled to a lawyer.
Most of the time, a person is represented by either public defenders, or by lawyers in private practice who are appointed when public defenders are not available or have a conflict of interest. Both are paid by the state to accept court appointments. The difference is that public defenders are salaried, full-time employees who specialize in the above cases, whereas lawyers in private practice are only compensated for the court appointments they accept.
There is no shortage of lawyers in Kanawha, the state’s largest county. But by the time Judge Akers sent her message in December 2024, the panel of private lawyers available for court appointed case work had dwindled from 63 to 11. For that reason, Judge Akers asked local lawyers to add their names to the list to voluntarily accept court appointments.
Months earlier, an Eastern Panhandle judge took a different approach to the same problem. In April 2024, Judge Laura Faircloth issued an administrative order for Berkeley, Jefferson, and Morgan counties. Citing the need to expand the list of court appointed lawyers, the order announced “the judges will continue to appoint attorneys who have requested to be on the panel list first; however, as necessary, any attorney licensed to practice law in West Virginia who practices in Berkeley, Jefferson, or Morgan counties may be appointed to any criminal, postconviction habeas corpus, abuse and neglect, or juvenile delinquency case in the 23rd Judicial Circuit.” (emphasis added)
In other words, even if a lawyer in the Eastern Panhandle has not agreed to represent people in these high stakes cases, the lawyer can be ordered to.
The judge and others may view this representation by conscription as part of a lawyer’s professional duty to the state bar and those in need of an advocate. But lofty ideals and solutions for others are less attractive when we imagine the same solutions applied to our own lives.
Would we want our freedom defended by a lawyer forced to take the case? If our son faced allegations in juvenile court or our sister was threatened with the loss of her children, would we be comfortable with a lawyer whose only qualification was an active law license?
Of course not. We would want an attorney who not only specialized in that area of law but wanted to be there. And yet there are not enough lawyers who have agreed to take on this work.
The people most vulnerable – those in need of a lawyer – are bearing the burden. When court-appointed lawyers are stretched between multiple counties, their clients can go days or weeks without a hearing in a criminal case.
Last September, a man in Barbour county was arrested on an allegation that he violated his criminal case bond by not submitting to a drug test. Despite case law and court rules that require a bond violation hearing “not later than five days“, the court scheduled the hearing in November – 45 days later. A court official explained that the delay was the result of scheduling conflicts exacerbated by the lack of available lawyers. When a hearing was finally held 45 days after arrest, the court ordered the man’s release from jail. But by then, he had spent a month and a half of his life in one of the state’s deadlier jails. Meanwhile, Barbour county taxpayers racked up a jail bill of $2,068.65 to keep this one person behind bars.
In February, the House of Delegates Committee on the Judiciary heard testimony about a lack of lawyers in the abuse and neglect system. According to one court official, there are fewer than 200 lawyers in the state qualified and willing to represent children in the 5,000+ cases filed each year. Another attorney testified that for these lawyers who are tasked with assessing the best interests of the children, “the burnout is real.”
When asked about solutions, the court official told lawmakers: “Compensation is an issue.”
Thirty-six years ago, the Supreme Court of Appeals of West Virginia considered compensation for court-appointed counsel. The court held that “no lawyer in West Virginia may be involuntarily appointed to a case unless the hourly rate of pay is at least $45 per hour for out-of-court work and $65 per hour for in-court work.” At the time of that decision, the rates were slightly higher than those in federal court ($40 per hour for out-of-court and $60 per hour for in-court). But after extensive study, the court concluded the new rates were “the minimum compensation constitutionally permissible.”
If those rates had merely increased at the rate of the consumer price index, they would be $116 for out-of-court work and $167 for in-court work. Instead, the rates are $60 and $80, respectively.
Forcing lawyers to represent vulnerable people at these rates is likely not “constitutionally permissible.” And in places like Kanawha County, where court-appointed lawyers in federal court earn more than double their state counterparts a block away, it is no wonder why lawyers have opted out of this important state work.
In April – for the first time since 2019 – the legislature passed a modest increase in these hourly rates (to $70 and $90 per hour, respectively).
Governor Patrick Morrisey, who claimed sympathy to the legislation’s intent, vetoed with the following explanation: “[T]his bill creates a shortfall in appropriations, without any identified offsets. I want West Virginia to be a national model for fiscal responsibility, and this bill fails to meet that objective.”
Notably, the Governor did not cite “identified offsets” or “fiscal responsibility” when he approved multiple penalty-enhancing bills that will increase state spending on jails and prisons. See here, here, here, here, here, here, here, and here. Nor did he express concern with a jail and prison system that consumed $413.8 million of next year’s budget. Or that incarceration spending has risen $128.7 million in just six years.
The Governor’s veto sent a clear message: the state won’t pay to meet its obligation to provide lawyers for its people. But it will always pay for punishment.
