Idaho sees lawyer withdrawals after moving county public defender offices to the state
Idaho Gov. Brad Little speaks at a 2020 press conference. (Darin Oswald/Idaho Statesman via AP)
Recent Idaho public defender pay rate changes led to many counsel heading for the exits, and the Idaho State Bar issued a formal ethics opinion over concerns about defendants being left without attorneys. The opinion recognizes financial hardships can cause conflicts in legal representation but notes that counsel cannot leave a case without the court’s approval.
Idaho in 2024 merged 44 county public defender’s offices into a single office to manage all public defense in the state. A goal was to end geographic pay disparities that had long existed, and with the new office came a set salary structure. Approximately 77% of employees would receive raises; compensation for 7% would not change; and 15% would see salary decreases, according to Formal Ethics Opinion 137, published in September.
Contract attorneys now receive $100 per hour—a figure below what some wealthier Idaho counties were previously paying under the county-based system. The changes are part of 2022 legislation that reduced county property taxes and transferred indigent defense costs to the state, according to a press release from Idaho Gov. Brad Little.
“We did not expect 1,100 withdrawals on Oct. 1, but that’s what happened, and we had to figure things out on the fly,” says Eric Fredericksen, the state public defender.
His office asked for an additional $16.38 million in its fiscal 2026 budget request, including the proposed hiring of employees in some counties now served by contract attorneys.
Adding to the budgetary burdens, the Idaho Supreme Court ruled in early December that the state public defender’s office must pay the costs of preparing transcripts on appeal for indigent defendants, an expense that could be “well over $1 million” according to the office’s communications director Patrick Orr, though he says the office is still trying to figure out the total cost and how to pay for it.
The formal opinion, published Sept. 18, leaves it to the judge to decide on a case-by-case basis if it’s appropriate to let an attorney out of a case. Language in the opinion states that the conflict analysis applies to lawyers who have been appointed, have a contract with the agency or are state public defender employees.
“The potential drop in pay was a big factor in our opinion,” Joe Pirtle, state bar counsel and the opinion’s author, told the ABA Journal. “Some folks are distraught at doing the same work for substantially less, and our concern was the lawyer’s personal interest might affect their ability to represent clients.”
Another concern was legal representation for the indigent.
“The motivation was there could be hundreds of motions to withdraw in parts of the state where there might not otherwise be representation,” Pirtle explains.
Formal Opinion 06-441, published by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility, addresses the obligations of representing indigent criminal defendants when large caseloads interfere.
If a lawyer cannot provide “competent and diligent” representation to a client, they must move to withdraw, the ABA formal opinion states. But if the court denies the motion, the attorney must continue, “while taking whatever steps are feasible to ensure that she will be able to competently and diligently represent the defendant.”
The same month that the pay changes took effect, an Owyhee County, Idaho, judge ordered Fredricksen to court after a defendant came to a preliminary hearing without a public defender, according to the Idaho Capital Sun. Fredericksen told the court that between Oct. 1 and Oct 12, seven hearings were missed. The article also reported that the judge said two defendants were from Owyhee County, and one of them wound up with an extra week of jail because they did not have a lawyer. The southwestern Idaho county covers around 7,668 square miles and has a population of approximately 11,913 people.
According to Fredericksen, by the end of October, attorneys had withdrawn from about 1,500 cases. He adds that the office has actively worked to get attorneys assigned to those cases.
Barry Black is the chief criminal deputy prosecutor for Kootenai County, which according to East Idaho News is the fifth-wealthiest county in the state. Black says underfunding legal resources has reached a crisis point in Idaho.
“I’ve known several public defenders who have foregone the financial benefits of private practice because of their strong moral belief of fair representation for the criminally accused but have felt unable to adequately represent their clients,” he says.
Cassandra Burke Robertson, who directs the Center for Professional Ethics at the Case Western Reserve School of Law, says the opinion addresses a nationwide problem.
“Representation suffers when you don’t adequately fund indigent defense, but this is pretty much the best way to handle it,” she says. “Make sure clients aren’t abandoned even if the attorney is getting paid less.”
Richard Zitrin, the author of legal ethics books and an emeritus lecturer at the University of California College of the Law at San Francisco, disagrees with the opinion, believing it fails to get to the main issue.
“This opinion does not say the lawyer may decline the appointment if there’s a conflict. It should say that, but it doesn’t,” Zitrin says. “The lawyer shouldn’t have to continue if they’re getting a pay cut in the middle of a case. They ought to be able to say no.”
The fact that judges can order attorneys to remain on their cases leads Zitrin to call the opinion “bad for everyone”—criminal defendants, those who represent them and prosecutors too.
“What could happen is lots of dismissals on appeal because defendants won’t have adequate counsel,” he says.
But Fredericksen’s disappointment with the state bar’s opinion is that it makes it easier, in his view, for lawyers to step aside.
“Attorneys have been allowed to withdraw from cases within days of a preliminary hearing and within a month of trial,” he says. “That presents a real harm to the client.”
Tyler Maulsby, the immediate past president of the Association of Professional Responsibility Lawyers, also expressed reservations.
“The opinion is concerning to me because clients are left without representation, and lawyers are in a precarious position,” says Maulsby, a partner with New York City’s Frankfurt Kurnit Klein & Selz.
Pamela Metzger, the executive director of Southern Methodist University Dedman School of Law’s Deason Criminal Justice Reform Center, doesn’t see a problem with the opinion and says it shouldn’t surprise anyone. According to her, in general, a state-funded system is the best practice because it avoids justice by geography.
“The problem is the chronic underfunding of indigent defense, not the opinion,” she says. “You can’t represent a client well if you can’t eat.”
That’s a real problem in Idaho, according to Black.
“Public lawyers on both sides are unable to live in the major areas of Idaho on the current salaries, much less support a family,” he says.
Additionally, the issue has an impact on civil cases that involve appointments of representatives in child protection, mental health and family law cases, Black says.
Fredericksen believes the Idaho system is going to be a model for other states going forward. But he concedes that the shift is very much a work in progress, lamenting that former institutional and contract attorneys banded together to disparage the agency before it had a chance to begin.
“You can’t create a state agency this large and not have some bumps and bruises,” he says.
To Zitrin, the solution is easy.
“Pay the lawyers a fair amount of money,” he says.
This story was originally published in the February-March 2025 issue of the ABA Journal under the headline: “A Central Issue: After moving county public defender offices to the state, Idaho sees lawyer withdrawals.”
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