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SACRAMENTO � Age may be a delicate subject, but James Kyle Gee wants people to know that he’s not getting any younger. Nor are his colleagues in the California Appellate Defense Counsel, an organization of criminal and dependency lawyers appointed to represent the indigent. “We had a meeting in Sacramento recently, and if you had been there you would have seen, well, you know, we’re still walking, but there was a lot of gray hair in that room,” said Gee, the outgoing president of the group. In a recent survey of the group’s 400 members, just one of the roughly 125 who responded was under the age of 40. Most were well into their 50s and 60s. That might not seem so bad to the casual observer. Who wouldn’t want a mature, experienced appellate panel handling some of California’s toughest cases? But, members warn, what happens in a few years when these lawyers start retiring in droves? Who will represent the many clients who can’t afford high-priced, high-powered private defense attorneys? The ranks of potential replacements are thin. “It’s at the point now where the cases are still getting done,” said Berkeley attorney Wesley Van Winkle. “But the time is coming when there’s going to be a train wreck, when all these people retire.” The problem, these attorneys argue, starts and ends with the pay. The state compensates appellate counsel as independent contractors. Hourly rates range from $70 to $90 for noncapital cases and $130 for death penalty appeals. Attorneys receive no benefits and no reimbursement for overhead, like malpractice insurance. A set of guidelines spell out how long it should take an attorney to complete a given task, such as writing a brief. If they take more time than expected, they have to file paperwork explaining why. The state bumped noncapital pay rates last October by $5 an hour to their current levels � the first raise since 1989. With inflation, Gee figures he took a 30 percent pay cut over 17 years. He wonders why any young lawyer would choose to work under those conditions. “I came out of law school $5,000 in debt,” Gee said. “These kids today, if they borrowed for both college and law school, they’re $150,000 in debt � The question is, where are our replacements going to come from? The answer is, at these wages, nowhere.” This predicament has its roots in a decades-old political fight over the state’s role in defending poor appellants. In the 1970s and ’80s, California had a state public defender’s office under Gov. Jerry Brown that was functioning, if not flourishing. Attorneys there handled many death penalty defenses, driven by the notion that their office should mirror the functions performed by the attorney general, which prosecutes felony criminal appeals. But when Gov. George Deukmejian took office in 1983, the Republican administration pushed to privatize government services, including those provided by the public defender’s office. “It was thought that this was going to save a lot of money, but the reality was the Deukmejian administration did not want a powerful group of defense lawyers fighting the attorney general’s office,” said Van Winkle, who worked for the state public defender then. Deukmejian’s tough-on-crime policies were more allied with the mission of the attorney general’s office, and not the public defender. Appointed defense work was eventually divvied up between contract administrators in each of California’s appellate districts. Many of the state public defenders went to work for the appellate projects in those districts, or became panel attorneys. And they’ve stayed. Veteran attorneys have crowded many of the top-paying, top ranks of case assignments for years, creating little incentive for newer attorneys to stay and few opportunities to advance quickly. Some say the problem worsened in the 1990s when administrators tried to increase the number of attorneys working without direct assistance from a district’s project counsel. A study at the time suggested the “assisted” attorneys cost too much. But shrinking the pool of assisted lawyers meant fewer attorneys in the pipeline to eventually replace retirees. “That was driven at least in part by financial considerations,” said Michael Kresser, executive director of the Sixth District Appellate Program. “There wasn’t much thought given to long-term implications.” The Sixth District’s panel now includes about 200 attorneys, Kresser said, down from a high of 280 in the 1990s. Although the anticipated retirement boom hasn’t yet transpired, project executives are already scrambling to find lawyers for some cases, in part because existing attorneys are lightening their workload as they age. “We may have to shop a case to three or four attorneys before someone will take it,” Kresser said. “The long-term trend is not good.” Despite the low pay, panel attorneys say the work does provide certain benefits. They can work at home � leaving the ties and dress suits in the closet on most days � and they can be somewhat flexible with their hours. And for someone devoted to criminal law or civil rights, there’s rarely a dull case. “Sure, there’s an advantage to these things,” Van Winkle said. “That’s an easy excuse for not paying people. Even if you figured in some sort of work-at-home factor � you’re still out of whack on the pay scale.” But when lawmakers draft the state’s budget, appellate counsel have no natural constituency to lobby them. The Administrative Office of the Courts has sought money for pay raises, with only rare success over the last two decades. The CADC recently hired a lobbyist, and this year lawmakers have tentatively agreed to give appellate counsel a $10-an-hour raise that would boost the pay scale to between $80 and $100 an hour. Gee said he’s cautiously optimistic about ultimately securing the pay hike. By comparison, deputy attorneys general recently signed a labor contract that will boost the most experienced lawyers’ pay by 5 percent before adding another 2.5 percent for cost-of-living expenses retroactive to July 2005. Van Winkle said he’d like to see the state tie panel attorneys’ pay to the salaries of state prosecutors. Both sides would come to court more equally financed, he said, and young lawyers would not be so easily repelled by a career as an appellate defender. “You have to get the rates to a point where people coming out of law school see this as a way where they can make a living in a few years, where they can pay off their bills and pay off their law school debt,” he said.

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