By Tom Jarvis
Previous articles in this series have explored the challenges encountered by the New Hampshire Public Defender (NHPD), but what happens when a public defender faces a conflict of interest – whether a direct conflict, a conflict with a co-defendant, a caseload issue, or other factors? In such cases, the NHPD refers the matter to conflict counsel – private attorneys who step in when needed.
Conflict counsel fall into two main categories: contract and assigned counsel. Contract counsel are private attorneys who have fixed-fee agreements with the New Hampshire Judicial Council (NHJC) to handle a set number of cases based on units. Assigned counsel, by contrast, take cases on an ad hoc basis when neither the NHPD nor contract counsel are available, and receive hourly pay for flexibility.
Similar to the public defender shortage, there is also a shortage of conflict counsel. Currently, there are only 17 contract attorneys in the state and approximately 45 attorneys who regularly take criminal cases as assigned counsel.
The Role of the Judicial Council
When the NHPD has a conflict, its Conflict Counsel Administrator (CCA) coordinates with the NHJC, which oversees the indigent defense system, including managing NHPD funding and assigning conflict counsel. The NHJC ensures that indigent defendants have access to legal representation through a three-part system: the NHPD, contract counsel, and assigned counsel.
Funded through a general fund appropriation, the NHJC works with a limited staff to coordinate these services, balancing caseload distribution and attorney participation in the system. Despite its essential role, the availability of conflict counsel remains a pressing concern.
The Conflict Counsel Shortage
“The issues affecting the Public Defender, such as resources, compensation, and caseloads affect conflict counsel, as well,” says NHJC Executive Director Jay Buckey. “When there is a lack of capacity at the Public Defender, it puts more strain on the contract and assigned counsel. For example, if the NHPD must close courts or stop accepting certain types of cases for a period, that means we need to staff those cases out of the contract and assigned counsel system. This can quickly overwhelm the system, particularly in rural areas of the state.”
Buckey also notes that there have been fewer and fewer contract attorneys throughout the state.
“Part of that is linked to the issue of certain areas of the state having fewer attorneys, like in rural counties,” he says. “There used to be a robust contract attorney presence, but that’s no longer the case. Some counties don’t have any contract attorneys at all. In those counties, we rely solely on assigned counsel to take cases the public defender can’t. The other part is due to compensation and how there can be some improvements made.”
He says that the conflict counsel system was not designed to take on nearly the same volume as the NHPD.
“In recent times, in some jurisdictions, when public defenders are not available because there are not enough of them, we really have to lean more heavily on those people and that can be very difficult,” he says.
Clinton Crosbie, a 2023 law school graduate who takes assigned cases, notes the public defender shortage places an additional strain on conflict counsel.
“As the Public Defender is having a harder time filling those roles, unfortunately that also means the rate of conflicts obviously grows exponentially,” he says. “When attrition is cutting off the number of people who can take cases in significant numbers then conflicts are going to increase.”
How the Indigent Defense Crisis Impacts Conflict Counsel
“Probably the biggest impact of the caseload crisis for me personally is my travel time,” says assigned counsel Randy Hawkes, a former executive director of the NHPD. “Because some areas of the state have few private attorneys to take assigned cases, I’ve accepted cases from those jurisdictions. I regularly drive several hours to Coos County, Grafton County, and Sullivan County.”
While at the NHPD, Hawkes worked with the NHJC and the New Hampshire Supreme Court (NHSC) to strengthen the public/private collaboration in providing representation for indigent defendants.
“It moved the needle a little, but more participation by private counsel was needed – and still is,” he says. “Almost immediately after retiring from the Public Defender in 2022 after 30 years, I formed an LLC for the exclusive purpose of taking assigned cases to help with the crisis. My ‘business model’ is essentially to tell the CCA office if they cannot find an attorney for a defendant who is waiting for counsel, I’ll take the case.”
Dan Duckett, who started his career as a public defender and has now been contract counsel for six years, says scheduling has been a major factor.
“The biggest effect for me is I’m often scheduled for two or more courts on one day, often within the same two-hour period, in which I must either juggle, be late, or continue – and it’s on a regular basis. That’s the hardest part, being in multiple courts,” he says. “For example, a Public Defender in the Manchester office will typically be in Merrimack District or Manchester District-Hillsborough North. As contract counsel, I can be everywhere in a day and at the same time. Most courts are good about it. They understand when I have to be late, but it’s exhausting and it’s non-stop. There’s not enough time in a day sometimes. I work weekends, not because I want to, but it gives me that breather when the phone’s not ringing to prepare for the week coming up.”
Duckett regularly exceeds the number of cases he agreed to in his contract.
“I have a half contract, which really means nothing because I go through that half within four months as there are so many indigent defendants,” he says. “I’ll go through my units and then the Judicial Council will reach out and ask if I want more units. I’m hard-pressed to say no because if I don’t take them, I don’t know who will. I hate the idea that there are people in jail without counsel. It’s a nightmare.”
Efforts to Strengthen Conflict Counsel
Since the COVID-19 pandemic, which exacerbated the indigent defense crisis, the NHSC and the NHJC have implemented several measures to mitigate the crisis and encourage private attorneys to accept more conflict cases. These efforts included administrative orders that streamlined the payment process and increased the standing amounts for services other than counsel, such as investigators, interpreters, and experts. Additionally, they increased the number of units that cases are worth and allowed for reimbursement of administrative fees for contract counsel.
In 2022, the Court issued an order waiving certain requirements for inactive attorneys who elect limited active status with the Bar, making it easier for them to accept indigent criminal defense cases. This initiative sought to alleviate the backlog by encouraging retired or inactive lawyers to take on at least three such cases per year.
Buckey says he has also worked to increase training opportunities for conflict counsel, including the UNH Criminal Defense Academy1 that was made possible by ARPA funding.
Perhaps one of the most significant improvements for assigned counsel was the hourly rate increase from $60 to $90 for most cases and from $100 to $125 for major crimes in 2022. In January 2025, the NHSC approved another increase, raising the rates to $125 and $150, respectively.
“I personally have seen less requests [for assigned cases] since they did the raise in the pay scale,” says assigned counsel Emily Peterson. “I can’t speak to whether that is a result of more people being willing to take the cases or just fewer cases overall, but I would guess that it would have something to do with the pay scale.”
According to Crosbie, bringing the rates over $100 per hour was an important milestone.
“With folks who have $100,000 or $200,000 in student loan debt, breaking that $100 per hour rate makes taking cases more palatable,” he says. “That’s especially true when you think about taking a private case could be $250 per hour, so at least we are halfway there. Like many who deeply believe in their work, we often do it for less money. Most people didn’t go through the trouble of law school and long hours of legal practice not to make a relatively decent salary, though. It’s not the main factor, but for most it’s certainly a factor. To ignore that would be disingenuous.”
According to Buckey, the NHJC has recently determined that conflict counsel providing indigent defense services can be certified for the Public Service Loan Forgiveness (PSLF) Program, meeting federal eligibility criteria. Attorneys must meet the 30-hour-per-week full-time requirement and can apply for certification through the PSLF Help Tool. He says the Judicial Council generally considers attorneys who complete 360 units of legal work per year as full-time.
Advantages and Challenges of Conflict Counsel
Conflict counsel face many of the same challenges as public defenders and experience similar issues within the indigent defense crisis. However, they differ in the advantages each role offers.
“One real advantage to being assigned counsel is that you get to choose cases that you’re interested in,” says Peterson. “I take a lot of drug cases because that generally has a sort of rehabilitative aspect to it, and I really enjoy helping people get into treatment and seeing the good things that come from that.”
Peterson continues: “One of the big disadvantages is we don’t have the support system that the Public Defender has. They employ people who are basically social workers. As I understand it, each office has a person that helps get people into treatment programs. We don’t have that sort of thing. Any social services-related stuff we have to do on our own, which can be a little time-consuming.”
For Crosbie, one of the major challenges to taking assigned cases statewide is keeping track of the preferences of different courts.
“Each court has its own procedures and preferences, which can be difficult to keep track of, especially for someone who practices across the entire state,” he says. “Some courts prefer to have a series of motions filed as one document, while others require them to be filed separately. Some judges may have specific inclinations or more rigid stances on rules or traditions that must be kept in mind. It’s not directly related to indigent client defense, but it does become a factor when traveling and practicing in different courts across the state.”
What’s Next for Conflict Counsel?
Buckey says contract counsel rates are due for reevaluation. He also notes that efforts are underway to overhaul the payment system for attorneys and vendors, aiming to make it more efficient. Improving the contract system and attorney payments remains a top priority for him.
“Streamlining the contract system and attorney payments are high on my list of things that can be done,” he says. “I would also like to be able to offer more resources to attorneys who agree to be contract counsel. In other states, they can negotiate attractive rates for legal research services, insurance services, and case management services. I think we’d need a bit more in the way of resources and staffing to do that, though.”
Crosbie suggests having a group rate for legal research platforms like Westlaw may be an added incentive for those willing to take indigent work. He also suggests that implementing E-filing in the district courts would streamline not just indigent cases but retained cases, as well.
“It would take some of the sharp edges off things and would make it easier for people wanting to take these cases,” he says.
For Duckett’s scheduling concerns, he says it would help if the courts could work with counsel more.
“Let’s say I go to district court today and have to continue something,” he says. “I’ll get a hearing notice without any input as to whether I’m available that day. If there’s a way clerks or the courts can reach out with some available dates, that would be helpful.”
Peterson notes that having a network of mentors who are willing to help newer conflict counsel would be beneficial.
Why Take Conflict Cases?
“You’re going to make a huge difference in these cases, whether you’re doing criminal work – or we also do assigned counsel for family cases – because your work has a direct, immediate impact on someone’s life,” says Buckey. “Their liberty is at stake, and your role is vital to both them and the courts. You’ll also have access to training materials and connections with other attorneys in the field. It’s a great way to make a difference while still getting paid. It’s not pro bono, it’s ‘low bono.’ For firms, it’s also an opportunity for attorneys to gain courtroom and trial experience.”
Hawkes says he encourages lawyers to look into training available through the Bar and the NHJC and, when prepared, to take assigned cases.
“For newer attorneys with an interest in and a capacity for criminal defense work, and whose private practice is still developing, assigned cases are a good way to augment their base of retained clients while honing their negotiation, litigation, and trial practice skills,” says Hawkes.
Duckett agrees, saying that it’s good for the soul.
“I’m not a first responder, I’m not a doctor, but left to their own devices, I may see indigent defendants in the obituaries,” he says. “I’ve had too many of those. My belief is that nobody should stand alone.”
Crosbie says he encourages anyone who has the capacity to take what they can, even if they don’t have vast experience in criminal defense.
“There is space to learn, but even just taking on the less complex or lower-level cases frees up people who may have a broader skillset in criminal defense,” he says.
For Peterson, who attended the UNH Criminal Defense Academy and has been taking assigned cases ever since, the experience has been transformative.
“I would encourage attorneys [to do assigned counsel work] wholeheartedly,” she says. “It’s been absolutely rewarding. I can honestly say that I have learned so much from all my clients, and I’m so grateful for all those experiences with these people. It’s been eye-opening and heartbreaking, but also compelling.”
As New Hampshire continues to navigate its indigent defense crisis, the need for dedicated conflict counsel remains urgent. With ongoing improvements in compensation and resources, attorneys who take on these cases not only gain invaluable experience but also play a critical role in ensuring access to justice.
Endnote
- See “The UNH Criminal Defense Academy Tackles the Indigent Defense Crisis,” New Hampshire Bar News, Vol. 35, No. 2, at 1 (July 2024)