The Constitutions of the United States and Oregon and Oregon statutes require the appointment of competent counsel for those who have been charged with a crime or face other potential or actual deprivations of their liberty interests and cannot afford counsel. The Public Defense Services Commission (PDSC) and Office of Public Defense Services (OPDS) are responsible for maintaining Oregon’s public defense system and ensuring the availability of qualified, competent counsel for all those so entitled.
Even in the best conditions, there are, on any given day, a handful of persons entitled to court-appointed counsel in Oregon who do not currently have counsel appointed. Attorneys who provide defense services routinely have ethical conflicts that prevent them from accepting appointments, and the processes for bringing persons before the court lead to built-in, but relatively small, delays in the system. Typically, a person entitled to counsel is without appointed counsel for, at worst, only a few days as OPDS staff work with the courts and providers to locate counsel qualified and willing to take on representation.
Over the last year, however, Oregon’s public defense services capacity has experienced challenges in keeping pace with evolving representation needs. This has resulted in increases in the number of persons who do not have the court-appointed counsel to which they are entitled and/or the average number of days in which that circumstance continues.
This page is intended to provide information regarding unrepresented persons and the PDSC’s and OPDS’s efforts to increase public defense services capacity to meet representation needs throughout Oregon. If you have questions about the information provided on this page, please email OPDS.Unrepresented.Persons@opds.state.or.us
Available Data Regarding Unrepresented Persons in Oregon
When a person is brought before the court for their initial hearing, the court will appoint an attorney from a contracted entity if one is available and, if not, may appoint a qualified attorney who provides public defense services at an hourly rate. If no attorneys in the jurisdiction are available, the court will “appoint” OPDS as a placeholder so the person and case will be listed on the OJD dashboard. Information from local jails is used to determine if persons are in custody or out of custody. The dashboard is updated at 8:30 a.m. each business day and reflects data from the prior day.
PDSC and OPDS Initiatives to Increase Public Defense Attorney Capacity
Recognizing that addressing unrepresented persons will require creative solutions, the PDSC authorized new programs directed at increasing public defense attorney capacity and reducing the number of persons who do not have the court-appointed counsel to which they are entitled.
If you are interested in or have questions about any of the following programs, please e
Increased Hourly Rates for Unrepresented, In-Custody Persons
At the end of July 2022, the PDSC approved an increase in the hourly rate for qualified attorneys who represent persons who are in custody and are entitled to but do not have court-appointed counsel, authorizing $158 per hour for this representation through the life of the case, with a waivable $10,000 “soft cap.” Effective October 20, 2022, the PDSC approved an increase in the hourly rate for investigators working on those same cases, authorizing $75 per hour for this work.
For a case to qualify for these increased hourly rates, the person must be listed as in custody and unrepresented on OJD’s Unrepresented Individuals Data Dashboard.
Attorneys are eligible for these increased hourly rates if they are qualified to handle the particular type of case, are not a 1.0 MAC attorney under a public defense services contract, and are ethically able to take on the representation.
These increased hourly rates are authorized for appointments made through December 31, 2022.
New Attorney Incentive Payments
In October 2022, the PDSC approved lump-sum payments to incentivize existing contract providers to bring new attorneys into Oregon’s public defense system. The new attorney incentive payments are available for any new attorneys added to a contract after October 1, 2022, and before March 31,2023.
- The addition of a new 1.0 MAC attorney to an existing public defense services contract qualifies for a $20,000 incentive payment three months after the addition, plus an additional $20,000 incentive payment if that attorney continues under the contract for an additional three months.
- For the addition of a new attorney who is less than 1.0 MAC, the incentive payment would be proportional to the attorney’s MAC (.5 MAC = $10,000 and $10,000).
- Available to:
- non-profit public defender offices in Coos, Deschutes, Douglas, Jackson, Josephine, Malheur, Marion, and Umatilla Counties; and
- consortia and law firms in Coos, Douglas, Josephine, Jackson, Lake/Klamath, Marion, Linn, Polk, Benton, Multnomah and Washington Counties.
- Funding must be limited to the PDSC budget for this biennium; therefore, the addition of attorneys after December 31, 2022, and before March 31, 2023, would only be eligible for the first $20,000 incentive payment.
- Incentive payment eligibility expires after March 31, 2023.
Supervising Attorney Program
Members of the civil bar have expressed a willingness to collaborate with the public defense community to assist with unrepresented persons. Most of the civil bar are not currently qualified to accept court-appointed cases; however, under the PDSC/OPDS attorney qualification standards and guidelines, a civil bar attorney or new attorney could be qualified under the supervision of a qualified and experienced public defense attorney.
In October 2022, the PDSC authorized the development of a program to provide supervision for civil attorneys who are interested in providing representation as court-appointed counsel. OPDS staff are working with the civil bar to develop this new program.
Discretionary Approval for Provider Plan to Increase Attorney Capacity
The public defense provider community supports a plan to increase attorney capacity based on a contractors’ unique circumstances and other external factors influencing the pool of qualified attorneys and access to court-appointed counsel. In October 2022, the PDSC authorized OPDS to solicit, evaluate, and preliminarily approve provider proposals to increase attorney capacity. Formal approval of a provider proposal which demonstratively increases attorney capacity will be by the PDSC.