Following pay changes with Idaho public defender’s office, agency saw more than 1,000 withdrawals
“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 (right), the Idaho state public defender. (Photo courtesy of the Idaho state public defender office)
Updated: 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 due to concerns. It recognizes financial hardships can cause conflicts in legal representation but notes that counsel cannot leave a case without the court’s approval.
Idaho 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 will receive raises, compensation for 7% won’t change and 15% will see salary decreases, according to Formal Ethics Opinion 137.
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 country 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.
Published Sept. 18, the formal opinion 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.
His office asked for an additional $17 million in its fiscal 2026 budget request, including the proposed hiring of employees in some counties now served by contract attorneys.
“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 as the pay changes, an Owyhee County 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, according to the article. It also reported that the judge said two 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 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 is actively working 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. According to him, underfunding legal resources has reached a crisis point in the state.
“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 in Cleveland, says the opinion involves 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 three legal ethics books and an emeritus lecturer at University of California Law at San Francisco, disagrees with the opinion, and he says 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,” says Zitrin. “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’s Frankfurt Kurnit Klein & Selz.
Pamela Metzger, executive director of Southern Methodist University’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 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 involving the appointment of representatives in child protection, mental health and family law cases, according to Black.
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.
Updated Nov. 13 at 2:16 p.m. to clarify the Idaho state public defender’s fiscal 2026 budget request.
