Houston leaders demand reform over attorneys' giant salaries, caseloads: 'Whole damn thing's broken'

“Obviously, these numbers are huge,” said Jed Silverman, president of the Harris County Criminal Lawyers Association. “It’s wrong, it’s offensive to your average person off the street, and it calls into question whether or not these accused people are getting effective assistance of counsel.”

CHRONICLE INVESTIGATES: Harris County spent $60 million on court-appointed lawyers with big caseloads. Critics call it a waste.

Here's a look at what officials are doing to address the issue, and other proposed solutions.

Audit launched

Late last month, the Harris County auditor told county leaders that his office "started a review of court-appointed attorneys' fees." The audit aims to examine everything from the attorneys' billing practices to whether they're visiting clients in jail.

"Our goal is to be able to analyze the different hours attorneys spent on different aspects of the case," said Chief Assistant Auditor Errika Perkins. She added that she expects the audit will take at least a couple of months before results can be publicly released.

Two of the county's Democratic commissioners, Rodney Ellis and Leslie Briones, separately are pushing for an expansion of the public defender’s office, which employed about 130 lawyers to represent indigent clients last year.

But Silverman and others say those changes won’t be enough.

“Everybody involved has to double down” to fix the problem, said state Sen. John Whitmire, who also is running for mayor of Houston . “There’s no justice for victims, defendants or society … the whole damn thing’s broken.”

For their part, judges and county staff say they’re trying to improve the situation by increasing attorney pay and mentorship opportunities to entice more attorneys to take cases. Harris County courts have faced so much turmoil in recent years due to the COVID-19 pandemic and Hurricane Harvey that many attorneys stopped taking appointments, forcing judges to overload some of the ones who remain.

A state-funded study in 2015 found that attorneys could only reasonably handle at most 128 felonies or 226 misdemeanors a year, though some think those numbers are too low. Regardless, attorneys in Harris County regularly exceeded those limits last year. The top-paid lawyer, Jeanie Ortiz, made $1,006,007 for work on 399 felonies and 207 misdemeanors, setting a statewide record among court-appointed attorneys, according to the Texas Indigent Defense Commission.

The felony judges recently voted to substantially improve the hourly rate for court-appointed attorneys. As of Feb. 27, they now can bill $175 per hour on first-degree felony cases, up from $120. Attorneys taking the lead on capital murder cases now will earn $225 an hour, up from $150.

From $765 for 15 minutes' work to $44

Judges made another crucial change recently: Court-appointed attorneys now can bill only hourly instead of earning flat fees for things like court appearances, a day in trial, or spending a week taking cases in a single courtroom — all of which encouraged volume of cases over quality work.

IN-DEPTH: Harris County judges criticized over pace of court-appointed lawyer reform

Murray Newman, president-elect of HCCLA, offered an example: Under the old system, he would get paid $255 for each court setting for a first-degree felony. Many of his clients are facing three or more first-degree felony charges, and all the court hearings for those charges generally happen in the same morning. That meant he could walk away with $765 “just for having shown up for 15 minutes,” Newman said.

Under the new system, he will be able to bill only for those 15 minutes, earning just $44.

“That incentivizes you to work harder and longer on the cases you already have," Newman said.

Felony judges also recently streamlined the application process for new attorneys to take court appointments. They now vote on new applications monthly instead of once a year.

While those reforms are considered positive steps, much more needs to happen, officials say — including expanding the public defender's office, putting more resources toward oversight of court appointments and addressing the courts' backlog.

Public defender’s limitations

The public defender’s office takes less than one-fifth of indigent cases in Harris County. Public defenders earn an average annual salary of $115,000 and have strict caseload limits that are far lower than some of the overloaded private attorneys who take court appointments. So adding more of them seems like a no-brainer.

But in a county as populous as Harris, it’s unlikely the office could ever take on more than half of indigent cases. That’s in part because state bar rules prohibit the office from representing two co-defendants at the same time in order to avoid conflicts of interest.

“We have a lot of good private lawyers that are willing to take court appointments, and we should make use of them,” said Alex Bunin, the county’s chief public defender.

The office has another big limitation: It does not employ attorneys who are qualified to handle capital murder cases, which are among the most work-intensive because they can lead to the death penalty. Nearly all of the defendants in capital murder cases are indigent, so they’re represented by private attorneys, and taxpayers are footing the bill — which can come out to hundreds of thousands of dollars for a single case.

Bunin said a priority right now is to expand the office more generally rather than add a separate specialized unit to handle capital cases. In order to take half of indigent cases, Bunin said the office's annual budget would need to more than doubled over the next three years, from $32 million to $76 million. That increase would likely be offset by savings on payments to court-appointed attorneys, he said.

Court appointments oversight

The Texas Constitution places oversight of indigent defense — from the assignment of lawyers to cases to even deciding how much they’re paid — solely in the hands of judges . Critics say judges don’t have the time or the qualifications to assign the proper lawyers to indigent defendants or to make sure they’re doing a good job.

“You need an independent system to handle appointments,” said Genesis Draper, one of 16 judges in Harris County who presides over misdemeanor cases. She said the “managed assigned counsel” program recently launched in Harris County creates such a system.

The MAC created a computerized method for appointing indigent cases so that judges are no longer involved. It also has 20 full-time staffers overseeing and providing support to court-appointed attorneys across the county. But it only operates in the misdemeanor courts, and it does not limit attorneys’ workloads.

READ MORE: Harris County's system for defending the poor remains inadequate, state audit finds

David Fleischer, another misdemeanor judge, said there’s such a shortage of private attorneys willing to take indigent cases that many judges fear limiting their workload would deny some people representation altogether.

“The MAC was set up solely to ensure that lawyers were not overloaded. But what do you do when you don't have enough lawyers, but you still have the same amount of defendants … or even more?” he said. “They still need representation.”

Melissa Morris, one of 23 state district judges who presides over felony cases, said the felony judges hope to create a MAC by 2024.

The courts backlog

Harris County has become nationally known for its backlog of court cases. Some cases have languished for as long as a decade with no resolution, racking up costs to the taxpayer for prosecution, defense and other costs like housing defendants in jail.

As courtrooms have opened back up, some of the old cases are being resolved. But the number of new felony cases filed by the office of Harris County District Attorney Kim Ogg is also increasing — though the pace of that increase and the reason for it are in dispute.

Several defense attorneys, including Newman, who was a prosecutor from 1999-2008, said prosecutors are filing too many charges that they can’t later prove in court. Melissa Morris, the newest state district judge, agreed.

“I’m seeing cases that are filed where probable cause is lacking,” Morris said.

Nathan Beedle, a trial bureau chief in the district attorney’s office, called Newman's allegations “ridiculous.”

“We do not make the phone ring,” he said. “The police officers in the field call our office and present us with facts. There’s either probable cause to file a charge or there is not.”

Beedle added that just last week, the district attorney’s office began using an infusion of federal funds to help clear the backlog of cases. Qualified prosecutors in the office will spend some nights and weekends reviewing lower-level felony cases that are over a year old, as well as misdemeanors that are less than six months old, to see which ones could be resolved quickly.

neena.satija@houstonchronicle.com