Not in Santa Fe …

Recently, I informed clients and the El Paso County courts that I had accepted a job in Santa Fe with the Law Offices of the Public Defender for the State of New Mexico, and was scheduled to begin today, March 25, 2019. I received the Santa Fe offer on February 15, 2019.

In preparation, I withdrew from all my El Paso County appointed cases and removed myself from the appointments wheel for misdemeanor and felony cases.

In the subsequent weeks, I began to have second thoughts about relocating for a variety of reasons, not least of which was my attachment to the border region. Other reasons involved cost of living, distance from friends and family, and the stress of moving.

Approximately a week ago, I informed my new employer that I was withdrawing my acceptance. My apologies for any inconvenience to former clients and the criminal defense community of El Paso County, Texas.

Private Criminal Defense Practice in El Paso County, Texas: Should you do it?

This post is specifically for my criminal law friends, working for the El Paso County Public Defender or the District Attorney.

If you’re thinking of leaving, read this first!

Before you give up that cushy county job to become a solo in business for yourself, I offer you my own humble experience, which has been considerably different than what I heard from others before I took a swan dive (back) into private criminal defense practice.

BEFORE PRIVATE PRACTICE, I worked for the El Paso County Public Defender as a Deputy Public Defender beginning in August, 2015, and stayed for exactly two years, the length of the partial grant for which I was hired.

Before joining the El Paso County Public Defender, I had other experience that you can see at the BACKGROUND link (and photo) above.

STARTUP COSTS. Costs to start a criminal defense practice in El Paso are surprisingly modest if you can leverage the available technology. My total startup costs were right around $20,000.00.

My monthly spend includes $300.00 a month in recurring software, legal research, and phone and internet costs and $400.00 a month for a modest office.

When bar dues and other once-yearly costs (CLE, legal reference materials, etc.) are taken into account, my total monthly spend comes to about a $1,000.00.

PROSPECTIVE INCOME SOURCES. The point to keep in mind is that there is less here than meets the eye.

County and District Court Wheels. It takes about a month to get on the county and district court appointment wheels for misdemeanor and felony cases. In excess of 90% of my cases have come from District and County courts.

Texas Department of Family and Protective Services — aka CPS — Wheel. You have to request to be placed on this wheel directly from the 65th District Court. The judge will appoint you immediately after you complete a mandatory 3 hour, $25 CLE. CPS cases have made up about 5% of my cases.

Referrals. I’ve received a few referrals here and there. Referrals make up less than 5% of my case load.

CJA Panel for the U.S. District Court for New Mexico (Las Cruces). I applied to get on this panel in late 2017, and was approved for first appointments beginning in January, 2018. So far, I have not received any cases from this panel because the U.S. District Court appoints New Mexico based attorneys with an office no more 10 miles from the District Court first, and appoints El Paso attorneys only if no locals are available.

CJA Panel for the U.S. District Court for the Western District of Texas (El Paso). I delayed applying to this panel until August, 2018, for various reasons, and was approved in October. I’ve been on this CJA Panel for nearly three months. So far, nada.

Ad Litem Appointments. Many District and County courts have ad litem wheels in property and related cases. I’m not on any of those wheels because the pay is relatively modest and the wait to be paid is long. For these reasons, I feel it isn’t worth it to me.

Withdrawing from a Wheel. Here I should mention my experience with 1st degree felony appointments. I asked to remove my name from the 1st degree felony wheel because I found that I was unprepared for the more serious cases (10, 15, 25 year minimums and LWOP cases) when it comes to basic practice infrastructure. These cases require staff, experts, investigators, lots of research and motion work, and much more besides. Moreover, the clients are typically more troubled and addicted, requiring excessive attorney-client face time. The hourly rate, which is the same as for a Class “B” misdemeanor, is simply too low to make these cases worth it.

I’ve also removed myself from the CPS wheel for entirely different reasons. For me personally, I just couldn’t feel good about my representation of these very deserving, blameless, and vulnerable clients due to my own inability to put in the time and devote myself to their cause due to my heavier criminal case load.

DOING THE WORK. Private appointed counsel works and bills by the hour. You have to do the work to bill the time. It has been clear from the beginning that I have to work twice as hard as my salaried counterpart for about half the money because I don’t have a staff and can’t rely on others for coverage without incurring a cost. While the District and County courts hourly rate is supposed to take into account overhead (like staff), it simply isn’t enough if you really work the cases up thoroughly and completely because so much of the work can’t be billed (that’s called overhead).

GETTING PAID. Regarding appointed cases, it takes on average about six weeks to two months to get paid once your voucher has been submitted to the respective courts for review and signature by the judge. I’ve had to wait as long as six months.

It is important to understand that your bills pass through at least three entities: the appointing court > Council of Judges (felonies) or Court Administration (misdemeanors) > Auditor. All have staff and your bills will be processed with the care and consideration that a particular staff member applies to his or her job.

Hence, there are many opportunities to lose your voucher in the chain of responsible offices as they pass through the hands employed therein. The auditor (and sometimes the courts) will lose some of your vouchers. It happens to everybody. Even the Council of Judges has lost at least one of my vouchers. I keep track of my bills and follow up if it’s been longer than 60 days since submission.

Every District and County court is different and all expect you to know their particular billing requirements, quirks and informal “local rules.” If you don’t or can’t keep the requirements straight, add weeks to the wait.

Courts will cut your bill. This too happens to everybody. I’m always very specific and detailed on every line item to maximize the likelihood of getting paid for everything I do. On line items I know the court won’t pay, I record it anyway and put down “no charge.” I do this as a not-so-subtle reminder to the court that I do the work even when I know I won’t be paid for it.

CASH FLOW. Let’s use my sad numbers for illustrative purposes.

For my first months, September to December, 2017, I grossed $3,752.50 in receivables on expenses of $5,867.99, for a loss of $2,115.49. My accumulated billables were $14,130.50, or averaging just over $3,500.00 a month.

2018 was better. I grossed $42,012.18 in receivables on expenses of $12,853.83, for a net of $29,096.48. My accumulated billables were $76,419.00, or averaging just over $6,350.00 a month.

This has been sufficient to keep the doors open and keep going. However, it is insufficient. It is obviously nowhere near what county employees, whether in the Public Defender’s office or the District Attorney’s office, get paid.

Most surprising is the spread between work performed and billables collected. In effect, I carry a credit balance of about $40,000.00 for El Paso County in any given month. 

The take-away is that El Paso County expects its appointed counsel to provide services on credit. A lot of credit.

Unless you simply have no other choice, it is very risky, akin to putting all your eggs in one basket similar to having a single, very large, unstable client, to rely solely on appointed work from the District and County courts.

A FEW WORDS ABOUT RETAINED CASES. There aren’t many. And there certainly aren’t enough to go around. There has always been a pecking order among local attorneys regarding who can make a living on retained criminal defense work in El Paso — as is the case elsewhere. I’m nowhere close to what passes for the local elite of criminal defense attorneys who thrive or even merely survive on retained work.

Moreover, the best known names are often multi-generational small law firms with name recognition that extends farther both regionally and back in time than my name ever will. Yet, I don’t perceive that these established attorneys charge any more than I would have to charge. Hence, I’ve found that I can’t undercut on price effectively because I’ll end up working for an unsustainable hourly, thereby jeopardizing both my other clients and my license generally.

CONCLUSION, TL;DR

  1. The main source of appointed cases for exiting former deputy public defenders or assistant district attorneys are District and County courts.
  2. While there are many sources of state and county appointed work (ad litem appointments), your particular practice and demands on your time will determine whether they are worth it.
  3. The Federal CJA Panels (TX and NM) are at best a modest supplement to one’s state case load because the case volume is low for most beginner Federal practitioners.
  4. Private retained work is scarce. The best known names in criminal defense don’t charge much more than the least known. Undercutting on price is ineffective and can be risky.
  5. In contrast to the above, you can make five to six figures a year as a county employed Deputy Public Defender or Assistant District Attorney and work half as hard with fewer worries than a private attorney.
  6. Startup costs are modest if you know how to leverage technology.

CAVEATS AND DISCLAIMERS. There are many caveats to my experience. Like, for example, this is only my first full year out in the wild of criminal defense practice in El Paso County. I could have added as much as 20% to my billable hours just by working more hours every day because there is usually more you can do for the client, and hence, more hours you can rack up. However, getting paid for going above-and-beyond for your client is another matter. Another point is that most criminal defense attorneys in El Paso have a mix of cases and practice areas, unlike myself. Obviously, this is my experience. The experience of others will be different.