Montana State Capitol building

The Montana State Capitol building in Helena.

After losing their legal battle in district court, the contract attorneys suing the Office of the State Public Defender for reducing their hourly reimbursement rates are appealing to the Montana Supreme Court. 

The contract public defenders sued OPD and Gov. Steve Bullock in May 2018 for reducing their rates by nearly 10% because of state budget cuts. The lawsuit sought damages and to reinstate the previous rates, which dropped from $62 an hour to $56 an hour.

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While the contract signed by the attorneys says it is subject to change by the Montana Public Defender Commission, the attorneys argue that a U.S. Supreme Court ruling says the government can't change the terms of a public contract just to save money.

Filed by Nick Brooke and Ethan Lerman, both contract attorneys with the OPD, the lawsuit seeks to expand the plaintiff pool to include all contract attorneys under the state law that allows class-action suits. They fear uneven decisions will be made at the county level if more suits are brought across the state.

The lawsuit alleged the rate reduction, which is expected to save the state $1.2 million, forces contract attorneys to either accept the reduced rates for ongoing cases or to drop their clients.

The legal argument hinges on whether the state breached the memorandum of understanding with its decision to cut rates, causing contract attorneys "financial harm."

In June, Lewis and Clark County District Court Judge Kathy Seeley disagreed with the plaintiffs and sided with the state. 

"As a matter of law, there is no breach of contract due to the fee reduction imposed," Seeley ruled.

Because the contract workers entered into a memorandum of understanding with OPD, Seeley said they accepted the fact that their payment structure could be changed.

"There is no separate agreement for each case assignment, and the MOU does not state that the fee schedule in place at the time of the assignment of a case sets the applicable fees for the entirety of the case," Seeley said.