Law and orders: Attorneys face challenges

BY MAUREEN N. MARATITA
Journal Staff

Need to deal with probate? Want a divorce? Thinking of suing in court?

Your chances of getting legal representation in Guam have shrunk, unless you are an indigent individual facing criminal charges.

As the Miranda Rights script says, “If you cannot afford an attorney, one will be provided for you,” and that has been a constitutional right since 1963. Chief Justice Robert J. Torres of the Supreme Court of Guam, said, “We continue to uphold that responsibility.”

Attorneys in the private bar are usually the fourth tier that the courts relate to, he said. “The first tier is the public defender, then the Alternate Public Defender’s Office — which is a conflict counsel … and then we have a Private Attorney Panel, where attorneys voluntarily come forward to do indigent criminal defense.” 

And it was a lack of participants for that panel that caused the court in November 2023 to require attorneys to defend indigent clients.

Many years ago, the PAP was more robust, Torres said. “Some of the more senior lawyers and seasoned lawyers of the Guam Bar Association recognized their obligation to give back and provide indigent defense, and so were willing to serve on the Private Attorney Panel. You had quite a few of them.”

The Guam Bar Association lists 445 attorneys on its site. Many of those are listed as relocated, retired, or inactive, leaving about 100 as practicing attorneys.

Torres said, “There’s no doubt that the Guam Bar is an aging bar if you look at the numbers that are over 65, and many of them have retired.” Others are heading for retirement and winding down practices, he said. “We’ve lost some from the Private Attorney Panel in that way. I think we find the younger lawyers don’t have the same sense of dedication or maybe commitment to indigent defense that some of these other lawyers had.”

Income is an issue for firms.

“Some blamed the compensation,” Torres said. The Supreme Court’s PAP rates went up to $150 per hour for indigent defense payments and increased its caps, now extended through Dec. 31 this year. “I think our hourly rate and our cap are not too insignificant compared to other jurisdictions,” he said. Compared to some of the state courts, Guam might have higher rates, he said. “Vis a vis the federal government, we’re competitive. But the federal government — in my understanding — is much more lax about paying above the cap.” The federal system is similar, Torres said. Typically, the two systems match, he said.

The federal court is not flush with attorneys either.

“The District Court is facing the same problems we are. Their numbers are shrinking too,” Torres said. “They’re having some of the same problems with regards to finding lawyers to do criminal defense work.”

The number of such cases is not a factor, the chief justice said. “The number of filings are actually down overall.”

R. Marsil Johnson, principal attorney with Blair Sterling Johnson & Martinez PC; told the Journal the prime concern is revenue, given that an attorney might spend two thirds of their billable hours defending indigent clients, though that would vary from attorney to attorney, and from firm to firm, he said.

“Partners and associates bill at different rates. Assuming an average charge of $300 per hour for a private attorney (mixing partners and associates), a firm would expect to bring in about $300,000 for 1,000 hours billed to their usual clients,” Johnson said.

“The courts pay $150 per hour and that is not negotiable. That means if a firm is compensated at $150 for 1,000 hours of court appointed criminal work, it will bring in $150,000 in revenue. This is $150,000 less than they were expecting to bring in. That is $150,000 less that can be used to pay for staff salaries, rent, utilities, equipment, and other expenses before profit is even discussed.”

The court caps total fees paid per court appointed criminal matter based on the severity of the offenses, Johnson said. “This means the court stops paying after it has spent a certain amount of money on a case. The lawyer must then continue to work until the case is done without additional compensation. For example, firms are paid a maximum of $3,600 for misdemeanor cases, a maximum of $7,500 for third degree felonies, and a maximum of $25,000 when a defendant faces the possibility of life in prison.”

The maximum also applies no matter how many of any type of crimes a defendant is charged with, he said. “So, if someone is charged with one third degree felony or seven third degree felonies, the maximum the court will pay for that case is still $7,500. … A firm that spends 1,000 hours defending court appointed matters will not be paid for all 1,000 of those hours. Many of those hours will be completely uncompensated because they will reach the cap before the case is finished,” Johnson said. 

An hourly rate rise is also due to economic factors and has risen elsewhere, he said. “I have heard certain mainland firms have increased it quite a bit.”

Joaquin C. Arriola Jr., partner in the Arriola Law Firm; is a former president of the Guam Bar Association and is now the Guam Bar delegate to the American Bar Association.

He said some lawyers who hold management positions in companies have taken inactive status due to the requirement to defend indigent clients. “There’s quite a few that who did that.”

Arriola said the demand for legal services in the private sector is high. “There is a huge backlog of clients — potential clients seeking lawyers.” Personnel are indeed moving to the government. “Three or four of my staff left me. The same thing is happening at other law firms.” In addition, Arriola said, “The attorney general’s office is known to poach people. It’s blatant.”

Low staffing is an issue throughout the profession, Arriola said, to include para legals, legal secretaries and legal investigators. “The entire legal market is being affected.” Rates are rising, he said. “We have to. It’s an economic thing to keep up.”

The lack of attorneys is not only a Guam issue, Torres said. “I think it’s a problem that is true for many underserved communities — communities that they refer to as ‘legal deserts.’ It’s happening in rural communities in Arizona, in California, in Maine, in New Jersey, and particularly in the rural areas where there’s a shortage of lawyers who are willing to do public service work — criminal defense work for public defenders, even attorney general work or serve on indigent defense panels. … There is a consistent shortage of attorneys in these rural areas.”

The rates and caps are based on comparisons with the federal government and across the U.S. and on statistics and data, he said. “We look at what it takes to complete an average case, and we have authority in some instances to exceed the cap,” he said, such as a complex felony or murder case.

“But clearly that hasn’t been the answer to getting more people on the Private Attorney Panel,” Torres said.

“We’re going to have to look at further reforms. And included within those reforms is expanding the legal service beyond the lawyer JD model. I think more and more we’re recognizing that in order to have access to justice — not just in the criminal world but in other realms — the traditional juris doctor model be the sole means of delivering legal services.

That’s why we’re exploring these options with the University of Guam to look at re-establishing their legal para-professional program … or limited licensed technician is another phrase that Arizona has done.” A number of jurisdictions are looking at allowing such professionals to handle some legal matters that are straightforward in areas such as family law, small claims and real estate, and also providing additional services to self-represented litigants and in the area of online protective orders, so that the burden on licensed lawyers is reduced, Torres said.

“I think we need to look at getting more lawyers. I think we need to think about attracting lawyers to come to Guam. We need people who are committed to public service law, both civil and criminal, to address our needs. We need UOG to get the PROTECH (Professional/Technical Award) scholarship back for lawyers. There are not a lot of people who want to go to law school, graduate with $200,000 in debt and go into public interest law and … into criminal defense for a public defender or to be on an indigent defense panel as a private attorney doing indigent defense when they have significant academic debt.”

The court’s own recent survey showed that 48% of its workforce is actively looking for other employment. “We have job satisfaction at nearly 90%. People love what they’re doing … but the problem is predominantly one of compensation,” Torres said. While the judiciary did receive salary increases, the court just lost five key employees to GovGuam agencies, which Torres said the judiciary can’t complete with. “Their pay scales are entirely different.” The court has also lost employees to the U.S. military. (See “Quotable.”)

Arriola said since UOG does not have a law school, “PROTECH is the best there is.” A proposed partnership with the University of Hawaii would offer law students two years of study online and one year in-person attendance at UH. UH personnel “are coming to Guam and featuring it,” Arriola said. To increase the number of law students, he said, “We need a pipeline to put them in, even if it means spending UOG funds … into the University of Hawaii.” Guam does have law students in the U.S. mainland, Arriola said, but they don’t always return to the island. “We have two graduates from Harvard. Neither of them are coming home.”

Johnson said his firm is “considered large for Guam.” Nevertheless, Blair Sterling has moved from Hagatna to smaller offices in Pacific Place in Tumon but aims to offer good benefits. “We try,” he said. “Our insurance package s healthy.”

The private sector can only do so much, he said against the federal and local government offerings. “One thing is the public service loan forgiveness program,” Johnson said. This allows forgiveness after ten years government employment, but but requires qualifying payments. Other benefits of working for government include regular hours and more free time, he said. Private practice still draws attorneys, Johnson said. “It’s a career path. There’s the opportunity that you get to be your own boss after a few years.”

The court is also looking at structural reform of how indigent counsel is handled in Guam, following a report by the Office of the Public Defender on access to justice.

“One of the recommendations they had was to establish an Independent Right to Counsel Commission that would basically handle all of the indigent defense issues on Guam.”

 Torres said the judiciary has taken on a lot of responsibilities in areas like pre-trial, juvenile justice, indigent defense — areas that are traditionally outside of courts in other jurisdictions.

“But we think that going forward, giving that responsibility to an independent commission will strengthen the judicial process and ensure that the commitment to justice is upheld,” he said. “But that’s going to require a statutory change, and you have to recognize too that indigent defense has been significantly underfunded in Guam.

“We get no direct funding from the legislature to fund indigent defense,” Torres said. “We are using client service fund money, which takes away from other things that fund was earmarked for.”

Torres thinks the number of indigent defendants has increased. The number of people who might qualify may have increased also.

Recognizing that junior attorneys spend more time in preparing and reach the cap more quickly the public defender has made efforts to conduct training and access to form banks, the chief justice said.

Having run a practice, Torres said, “There was a perception you could rely on especially an indigent defense representation with a younger associate and be able to do work. It wasn’t lucrative obviously, but it was a steady book of business.” The court has managed prompt payment, he said, providing bills are submitted on time.

Torres said without a permanent funding source the court is paying what it can afford. He emphasized that the judiciary has been very satisfied with its relationship with the legislature and its oversight chairman, Sen. Joe T. San Agustin. “It’s recognized that indigent defense has not had the same attention it might need,” Torres said.

The chief justice said he doesn’t think the government salary increase is the predominant reason for their being a shortage of attorneys in the private sector. “It’s a bigger issue about the lack of attorneys generally and the ‘legal deserts.’”

A Conference of Chief Justices Committee on Legal Education and Admissions Reform is looking at solutions, Torres said. “It’s not only in Guam, it’s in Micronesia, it’s in Palau, in the Marshalls.”

Elsewhere, courts have reciprocity or recognition of each other’s bar exams, granting attorneys the right to practice, which might also encourage more attorneys to practice in Guam.

Guam has reciprocity with the courts of the Northern Mariana Islands, Torres said. “But they haven’t granted it. That’s been in the law for many years, and nothing’s been done about it.”

The court is examining the Uniform Bar Exam, where scores within a bar exam can be transferred within the first five years of practice and is already accepted by more than 30 jurisdictions, Torres said. “But now the bar exam is changing. We’re going to a new generation of bar exams. They will have portability of scores.” The first administration of that exam will be in July 2026, and subject to the Supreme Court’s approval, could have portability.  mbj