Hundreds of criminal defense lawyers in North Carolina waited months to be paid in 2016. That could happen again.

Attorney Tonza Ruffin has been a trial attorney in criminal cases for 24 years, often representing indigent clients who cannot afford their own attorney.

In June 2016, North Carolina’s Indigent Defense Services Office ran out of money to pay Ruffin, then a private attorney, and hundreds of others who took on court-appointed cases, and the state ended up having to pay them out of the following year’s budget.

Ruffin said she could not recall this specific pay freeze because billing issues often caused delays in receiving her payments at the time. Still, she said, pay freezes have hurt the field of defense for the indigent.

“Lawyers can’t survive without something,” said Ruffin, who now serves as a public defender for Bertie, Halifax, Hertford and Northampton counties. “We find that private public defenders get frustrated and say, ‘I can’t do that.'”

Eight years later, the IDS office is facing a similar funding cliff.

The IDS Commission meeting records of August 9 show that the Private Assignment Counsel (PAC) Fund will have a budget deficit of approximately $39 million for the remainder of the current fiscal year.

This is based on expected spending of $108 million in fiscal year 2025 on court-appointed private attorneys, following a steady increase in PAC spending since 2021.

If the PAC fund continues like this, it could run out of money in April or May, said Mary Pollard, executive director of the IDS. In that case, the state agency would not be able to pay private lawyers until it receives more money in July.

“My fear is that if we actually have a deficit in the spring and are unable to make payments, we will lose the few remaining lawyers who are willing to take on the work,” Pollard said.

Is a budget rescue likely?

The currently projected deficit represents a worst-case scenario, said Pollard, who hopes lawmakers will provide more money before the fund is exhausted.

Although the state House of Representatives passed a budget amendment in the last legislative session that would have provided more money for IDS, due to disagreements with the Senate, no final bill made it to either chamber.

Durham state Rep. Marcia Morey, a Democrat and former judge, said it’s possible lawmakers could provide more funding to the IDS in an “emergency.”

But Republican Rep. Ted Davis of Wilmington, who also serves as co-chair of the Judiciary and Public Safety Committee, said he had not heard of a projected deficit at the IDS.

“I don’t need to talk about it until I know there is actually a potential problem,” Davis wrote in response to an interview request from The News & Observer.

Republican state Reps. Dudley Greene, Charles Miller and Carson Smith, as well as the other co-chairs of the Judiciary and Public Safety Appropriations Committee, did not respond to emails or calls from The N&O regarding IDS funding.

Morey, who serves on the committee, also hasn’t heard lawmakers talk about providing more money.

“It’s not discretionary, it’s mandatory,” Morey said, citing the defendants’ constitutional right to legal counsel. “We have to foot the bill.”

Delayed representation of needy persons

In North Carolina’s public defender districts, 48% of criminal defendants received court-appointed private attorneys in fiscal year 2024. About 19% of defendants were represented by public defenders and about 21% hired a private attorney, according to state judicial data.

Defendants must typically be charged with crimes that can result in large fines or prison sentences, and must have a low income to qualify for indigent representation. Judges ultimately decide on a case-by-case basis whether to grant a public defender.

If PAC funding dries up in the spring, private attorneys could decide to stop taking indigent cases – putting even more strain on the state’s overburdened public defense system, said Deonte Thomas, Wake County’s public defender.

This could result in defendants having to wait longer for legal representation, he added.

“Justice delayed is injustice,” Thomas said. “And we need to take care of people who don’t have the means to take care of themselves.”

Delayed representation often changes the outcome of the case, Ruffin said. Having to wait in jail or post bail is so “disruptive” to defendants’ daily lives that they sometimes confess despite their innocence, she added.

“This is especially common in communities where there are a lot of indigent people going through the courts,” Ruffin said.

Long-term shortage

A freeze on PAC funding in 2025 could exacerbate the steady decline in the number of private lawyers willing to take on cases for those in need, Pollard said. From July 2017 to June 2023, North Carolina lost 586 PAC lawyers. The most recent data from 2023 suggests about 1,760 remain.

Added to this is the unbalanced distribution of criminal defense attorneys in the state. Nearly half of North Carolina’s counties are “legal deserts” with fewer than one lawyer per 1,000 residents, the state court system reported last year.

Pay is one of the main reasons North Carolina is losing out on the list of defense attorneys who are short of money, Ruffin said.

PAC lawyers are paid $65 an hour for most district court cases and $85 for most superior court cases — less than many rates in 2011. Rates for defending non-indigent people vary, said private attorney Dan Meier of Durham, but they are almost always higher than those for indigent people. On average, misdemeanors can cost clients $100 to $700 an hour, and minor felonies can cost $300 to $1,100 an hour, he said.

The PAC fees aren’t just personal wages. The money helps pay rent, support staff, office supplies and other business expenses. Ruffin said she often has to set aside her salary to keep her law practice running.

“I had to make sure the lights stayed on and my assistant got paid,” she said.

Combined with payment delays due to administrative issues, the cost burden of PAC work has caused many attorneys to be removed from court dockets, says Dawn Tutterow, a PAC attorney in Lincoln County.

“I have friends in other counties who were completely taken off the list and moved away,” Tutterow said. “They honestly couldn’t afford to continue.”

Lydia Hoza, the chief public defender in Lincoln and Cleveland counties, said she has also noticed a cultural shift. Because there is a lack of mentorship from older attorneys, working as a court defender is no longer as engaging for young attorneys, she said.

And Tiqeece Brown, a private attorney at Trapp Law, said court-ordered work isn’t the only way to help low-income defendants. His firm sometimes represents indigent defendants who receive money from family and friends to hire a private attorney.

The advantage of taking on cases as a private attorney is a more manageable caseload, he said. Brown, who graduates from law school in 2023, said young lawyers tend to view private practice as a stopgap measure.

“They are put on the court-appointed lists to gain some experience, to gain attention and also to try to make a name for themselves,” he said.

But for Tutterow, who has worked for PACs for ten years, defending indigent clients is still an important and enjoyable endeavor.

“I wish more lawyers would donate their time to this,” she said.

Expansion of public defenders

The reduction in the backlog of cases during the pandemic and the increasing amount of electronic evidence, including camera footage, would likely contribute to increased demand for criminal defense lawyers, Pollard said.

Hopefully new public defender offices can help, several lawyers said.

Hoza’s office opened in February 2022, and by April her team was already accepting cases. Within a year, the office was fully staffed.

“You have to get started right away,” said Hoza. “A local (defense) law firm simply has no more breathing room.”

This year, eight new public defender offices opened in North Carolina. In total, there are now public defenders in 60 counties across the state.

While Pollard hopes the pressure on PAC resources will ease, she said she is unsure what the “new normal” will look like.

And even a month or two without paying private attorneys for court-ordered cases would be “tough” on defense attorneys, defendants, prosecutors and victims alike, Ruffin said.

“Every county still needs private attorneys willing to represent (indigent) people,” Ruffin said. “The thought of not having attorneys I can rely on for cases – that would be tragic.”

NC Reality Check is an N&O series that holds the powerful to account and highlights public issues affecting the Triangle or North Carolina. Have a suggestion for a future story? Email [email protected]