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Bar News - February 19, 2014


Government Work Outlook for NH Lawyers

By:

The opportunity for private New Hampshire attorneys to perform publicly funded work has not been immune to some of the challenges facing the overall legal economy.

For example, just as many companies are moving more legal tasks in-house, the Division of Children, Youth and Families no longer enlists private lawyers to help it prosecute child abuse cases, according to Chief Legal Counsel Byry Kennedy.

And, just as economic conditions have put downward pressure on hourly rates in recent years, private attorneys who represent indigent criminal defendants in federal court saw their fees cut from $125 an hour to $110 an hour as a result of last year’s automatic federal budget cuts – the “sequester.”

Nonetheless, there is still a variety of opportunities available to resourceful New Hampshire lawyers looking to bolster their practices with government contract and court-appointment work. Some require formal application processes, others simply making yourself known to the right people. Some work is open to all, while other jobs will only become available when other lawyers decide to give them up.

The following is the Bar News’ attempt to cut through the confusion and give New Hampshire attorneys the practical information they need to pursue government contract and appointment opportunities.

Indigent criminal defense (state)
At a glance
• Availability: All contracts filled, but opportunities for appointed work
• Pay: $60/hour
• Subject to caps?: Yes. Learn more.
• Travel costs reimbursed?: Mileage only.
Apply/Learn more.


In both state and federal court, the vast majority of indigent criminal defendants are represented by the respective public defender’s office. The New Hampshire Public Defender, for example, represents 85 percent of indigent defendants in state criminal and juvenile delinquency cases.

Another 14 percent are represented by private attorneys who have contracts with the New Hampshire Judicial Council. Christopher Keating, executive director of the Judicial Council, said all such contracts are filled. While the contracts last just one year, July 1 to June 30, opportunities for new lawyers to break in are limited by the fact that “each year, almost all the contract attorneys seek to renew their contracts for the next year,” Keating said, and those lawyers get top priority.

However, in about 1 percent of such cases, neither a public defender nor a contract attorney is available and the work goes to “assigned” counsel. While contract attorneys must fill out an application, explain the scope and extent of their experience and participate in an interview with the Indigent-Defense Subcommittee of the Judicial Council to win a contract, assignments are far less formal.

Ted Barnes of Concord, who has a contract to represent indigent criminal defendants in Merrimack and Belknap counties and also accepts appointed work in other areas, said “experience with criminal cases is most important.”

“In criminal and delinquency work, lawyers can inform the Judicial Council of their interest in obtaining appointments,” Keating said. “There are no eligibility standards. We’re primarily asking former prosecutors and public defenders, and other people we know can handle the cases.”

That soon will be changing though, as the Judicial Council instructed Keating at its last meeting to prepare a standardized set of eligibility requirements for assigned counsel to get put on a list. A bill pending in the state legislature would require the same of assigned counsel in juvenile matters.

The decision about whether a case goes to a contract or assigned attorney is made by the state Conflict Case Administrator Rebecca Michaud, who is based in Nashua.

“By statute, all indigent cases have to go first the Public Defender,” Keating said. “If there is a conflict, they hand it off to a walled-off, separate operation staffed by two people. And their job is to find a contract attorney for each defendant.”

The process was created in 2011 to streamline and centralize the appointment of counsel. “The old system was cumbersome and managed by court clerks all across the state,” Keating said. “They would not have the big picture.”

For example, individual clerks would not know how much work particular contract attorneys had already accepted across the state, Keating said, sometimes resulting in one attorney fulfilling his entire contract in the first month of the year, while another would go begging.

Counsel fees and expenses in indigent criminal cases are governed by New Hampshire Supreme Court Rule 47. The hourly rate is $60, but all cases are subject to caps ranging from $1,400 for misdemeanors to $20,000 for homicide and manslaughter cases. While travel time cannot be reimbursed, mileage is reimbursed, currently at a rate of 56 cents a mile.

The indigent defense contracts, though, have their own terms. Since the contracts are geographically restricted to one or two counties, mileage is not reimbursed. The contract attorneys also are paid flat rates, such as $2,282 for serious felonies and $275 for misdemeanors, according to Barnes.

Barnes said the complexity of the cases ranges “from mundane to labyrinthine” and “from expedient to tedious” and depends more on the facts of individual cases than the seriousness of the charges.

“It runs the gamut from cases that can be opened and closed in 60 days to several years,” said attorney James Moir, also of Concord.

Barnes estimated that most misdemeanors are resolved within four to six months and most felonies within six months to a year. “But with mental health issues increasingly arising in criminal matters, the time frame becomes extended, due to a need for expert involvement and the development of mental health treatment histories.”

While the $60 hourly rate has not charged in more than 20 years, at least getting paid isn’t much of a hassle. Contract attorneys are paid in advance upon acceptance of a case, Barnes said, and appointed lawyers usually receive payment within a couple of months after submission of the bills with necessary documentation. Barnes said getting reimbursed for investigators, experts and medical experts “can be a little unwieldy,” though, as it requires the filing of two motions – one for authorization and another with detailed documentation after the expenditure.

Indigent criminal defense (federal)
At a glance
• Pay: $110/hour
• Subject to caps?: No.
• Travel costs reimbursed?: Yes.
Apply/Learn more.


Indigent criminal defense in the federal courts is handled much, much differently, according to Clerk of Court Daniel Lynch. Private attorneys are appointed pursuant to the Criminal Justice Act when the Federal Public Defender Office is unavailable. The attorneys who accept the assignments are known as the “CJA panel.”

To join the panel, attorneys must meet certain qualifications and submit an application, which can be found on the federal court’s website. A three-member Panel Selection Committee – elected from the full CJA panel membership for three-year terms – makes a recommendation about each applicant to the chief judge of the federal court, who has final authority over whether a member is added. Once approved, a person serves on the panel for a two-year term and must then reapply for continued membership.

There is no cap on the number of lawyers serving on the panel, and Lynch said assignments are made on a strict rotation basis. The panel is broken up into three sub-panels based on the seriousness of the cases (general, major crimes and complex). There are no geographic restrictions, and travel costs may be reimbursed. Compensation is $110 per hour, and 56 cents per mile for mileage reimbursement. Lynch said criminal cases are, on average, resolved within nine months. “Of course, violations of supervised release are much shorter,” he added.

Mental health
At a glance

• Availability: DHHS contracts filled, but opportunities for appointed work
• Pay: $60/hour
• Subject to caps?: Yes, $600
• Travel costs reimbursed?: Mileage only
• To apply/for more information: Contact probate court clerk’s office


In state court, mental health proceedings also offer limited-duration opportunities for private lawyers.

There are two types of involuntary admissions to the state hospital. Less formal, involuntary emergency admissions (IEAs) are conducted by referees in the District Division. Probable cause determinations are made at these hearings, and a person can be held at the state hospital for up to 10 days. Five attorneys contract with the New Hampshire Department of Health and Human Services to represent patients in the proceedings.

“The department advertises the opportunity to contract periodically, when it is time to renew contracts,” said DHHS Chief Legal Counsel Frank Nachman. “DHHS also has contracts with attorneys to represent NHH (New Hampshire Hospital) patients in administrative hearings on the revocation of conditional discharge from the hospital and on emergency treatment issues. The contract opportunity is similarly advertised. Selection is based on qualifications and availability.”

A 135-C probate commitment is a more formal proceeding in which a person can be involuntarily committed to the state hospital for up to five years. New Hampshire Circuit Court Deputy Administrative Judge David King said many, if not most, of the probate hearings come as a result of the 10-day hold, when longer treatment is required.

“The probate cases are not contract positions; appointments are made by the court on a rotating basis,” King said. “For probate division work, speak with the clerk and ask to be put on a list. It may be some time before there is a need for lawyers to be added to the list, however… I don’t believe the availability of the work has changed in recent years. In other words, the volume of the cases has remained about the same. What has changed is the number of attorneys admitted to practice in New Hampshire, and the resulting increase in lawyers looking for appointed work.”

King said familiarity with the substantive law and availability to accept assignments are the most important qualification criteria. Like other state appointment work, there are no geographical restrictions, but also no reimbursement for travel (absent extraordinary circumstances), which can make finding lawyers to take cases particularly challenging in remote areas of the state. Like other state appointment work, the probate cases pay $60 an hour. They are capped at $600.

Other state court opportunities
At a glance

• Availability: Opportunities for court-appointed work
• Pay: $60/hour
• Subject to caps?: Yes. Learn more.
• Travel costs reimbursed?: Mileage only
Apply/learn more online or contact relevant clerk’s office


To a lesser extent, other state court proceedings provide other opportunities for court-appointed work. Again, the work pays $60 an hour and is subject to various caps ranging from $300 (e.g., annual review hearings for guardianships) to $1,700 (e.g., termination of parental rights cases).

Guardians ad litem for children in abuse and neglect cases are primarily represented by Court Appointed Special Advocates volunteers assigned by CASA in 85 percent of cases. Assigned counsel handle the remaining 15 percent of cases. Parents are represented by assigned counsel in 100 percent of such cases. Assignments are made by the Family Division Clerk’s Office.

When assigned counsel is needed to assist victims or witnesses in criminal cases, the assignments go to either the Public Defender Program (10 percent) or to assigned counsel chosen by the district division clerk’s office (90 percent).

When assigned counsel is needed to represent a proposed indigent ward in adult and minor guardianship proceedings, those assignments are made by the probate division clerk’s office.

As in the mental health cases, putting yourself in a position to be called for each of these case types simply requires making yourself and your skills known to the relevant clerk’s office.

“Clerks and judges know who practice in their counties,” Moir said. “They’ll just call around.”

Bankruptcy
Geraldine Karonis, Assistant United States Trustee, who oversees the Manchester Office of the United States Trustee said only occasional opportunities exist for appointments to serve the US Bankruptcy Court in recovering and admninistering assets under various bankruptcy chapters. The US Trustee Program’s website, www.justice.gov/ust, lists no current vacancies for the Chapter 7 panel or for the Chapter 12 and Chapter 13 standing trustee positions.

Members of the Chapter 7 panel are paid on a sliding scale based on a percentage of the value of the assets they recover for disbursement to creditors, incentivizing their efforts to hunt down as many assets as possible. Standing trustees are compensated as part of the monthly bankruptcy plan payments. They may not be paid more than 10 percent of a plan’s monthly payment, and compensation also is subject to approval by the US Trustee’s Office and may not exceed the pay of certain executive-level federal employees.

Karonis said recent changes to bankruptcy law have added the occasional need for attorneys to serve as consumer protection or health care patient ombudsmen. Attorneys in these cases would be appointed to represent the patients in a health care facility that is an asset in a case, or to protect the privacy interests of consumers whose names and personal identifiers are contained in the records of a business that is involved in a bankruptcy.


Brandon Gee is a staff writer at Massachusetts Lawyers Weekly and a freelance contributor to Bar News.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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