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State funding for private attorneys and expert witnesses who take on post-conviction work, including appeals for death row inmates, is depleted, according to officials, leaving legal professionals struggling to keep their employees and families afloat while ensuring the rights of their clients.
“Those bills are just sitting on someone’s desk in the governor’s office,” says Betsy Allen, a Las Vegas attorney who estimates close to half of her practice consists of post-conviction work for the state. She says she’s owed close to $30,000. “Would you work for six months without being paid? The governor’s office won’t even respond.”
Gov. Joe Lombardo is refusing to acknowledge the lack of funds. His spokeswoman, Elizabeth Ray, said via email the Governor’s Finance Office “is conducting a routine review of the post-conviction claims related to the public defender’s budget account. Following sufficient review and approval, the claims will be paid according to the correct operating procedure.”
But an email from the director of appointed counsel for Clark County, Susan Bush, to Allen and other attorneys in March says a budget shortfall, not a review, is holding up payment. Bush wrote that because of a “mid-year hourly rate increase the STATE (emphasis included) has exhausted their PCR (post-conviction relief) budget for Clark County this year.”
Bush went on to say invoices received after March 20 “will take 60-90 to be paid. The State must now request additional funds as the invoices come in, and it is a lengthy process. Please keep this timeframe in mind and plan accordingly.”
For Allen, who has three children attending the University of Nevada, Reno, and a small business to run, planning accordingly is a challenge.
“It’s been 20 years since we got a raise, and because of the raise, the money has been depleted from the account. It’s been 90 days since we submitted invoices and now they’re saying it could be August or later before we get paid,” said Allen.
The reimbursement rate for private attorneys increased this year from $100 to $172 an hour, except for capital cases, which were previously billed at $125 an hour, and increased to $230.
Additional funding is not on the agenda for Thursday’s meeting of the Interim Finance Committee, which appropriates money outside the biennial legislative sessions.
A number of attorneys plan to comment during the IFC meeting.
“These cases are extremely difficult, demanding, intricate and time consuming,” one attorney who currently has three capital post-conviction cases, wrote to the IFC. “These cases all involve experts who cannot be expected to continue to work without payment.”
The attorney adds she may not be able to continue working without being paid, a move that could have legal ramifications.
“These defendants are entitled to counsel who are in turn entitled to be paid for work done,” she wrote. “The lack of funding could be infringement upon their constitutional right to counsel.”
Attorney Michael Lasher wrote to the IFC that the state’s failure to pay the attorneys and experts is “not only unfair, but amounts to a Fifth Amendment takings issue for which the state is liable for the amount owed and reasonable interest.”
Lasher says he intends to shift his practice to work that has a funding source.
“I saw that Governor Lombardo wrote an Op-Ed for the New York Times, professing to care for working families,” Lasher wrote. “I am one of those people, with a small law practice funded exclusively by state and local governments.”
A state website detailing budgets indicates an account titled “post conviction relief” began the fiscal year with $1.2 million, which has all been spent. A second account labeled “statutory contingency – post con” had $417,000, which has also been depleted.
The governor’s spokesperson declined to say how much is owed to attorneys.
“Following the review process, we can provide you with a dollar amount of outstanding claims,” said Ray, who did not respond to additional questions about the review.
“The governor cannot unilaterally decide that someone doesn’t get the PCR work,” said Allen.”That is a breach of the separation of powers. I bet what they owe me there is zero review going on. They ran out of money and just don’t want to ask for more.”
About 20 attorneys in Clark County are affected by the lack of funds according to Bush, who says no one has stopped taking cases from the state as a result of the delay.
An attorney who asked not to be named said she takes post-conviction cases “only sometimes” because of the delay in getting reimbursed.
“There is a long history of us getting screwed and not being paid timely,” says Allen.
“When the Department of Indigent Services took over, we finally started getting paid on time.”
The Department of Indigent Services’ (DIDS) annual report for 2023 says it is “committed to reducing economic disincentives by promptly compensating appointed counsel and reimbursing counties for their public defense expenses over their maximum contribution,” adding direct payments from DIDS “should make reimbursement even more certain and rapid for the counties.”
Allen, in an email last week, asked DIDS whether attorneys can expect to wait two to three months for current invoices.
“I am hoping not, but in all honesty, I have no idea,” Cynthia Atanazio of DIDS responded. “We have been asked to accumulate as many claims as possible so that the Governor’s Finance can appropriate the best estimate of the amount needed prior to fiscal year end (June 30, 2024).”
“This is such an important issue to us, so it is our priority to get an answer,” Marcie Ryba of DIDS wrote in another email to Allen on June 5.
DIDS declined to speak with the Current after it was directed by the governor’s spokesperson to send inquiries to her.
Allen says Lombardo is “defying the statute” by not paying the attorneys for their court-appointed work. She and others are contemplating legal action against the state. For now, she’s sending Lombardo a letter asking for late fees.
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