A hard-working but lowly paid resident of Oregon who is accused of a crime may have a hard time getting a competent attorney.

If that person qualifies for food stamps, he would likely qualify for a court-appointed attorney. But for anyone with even a slightly higher income, the state uses a Privately Hired Attorney Fee Schedule to determine if a defendant qualifies for court-appointed counsel; that schedule varies widely from county to county and hasn't been updated since 1991.

For example, the state estimates that a person accused of aggravated murder in Benton County would need $25,000 to hire an attorney. The estimate is the same in most other counties in the state, including Multnomah.

If the state determines the defendant can afford $25,000, he would be denied a court-

appointed attorney.

But some private attorneys scoff at that figure as representative of what counsel would actually cost.

"I can't imagine it would be less than $100,000," said Wayne Mackeson of Portland.

The fee schedule arose from research done 16 years ago, according to Kathryn Aylward, director of the Contract & Business Services Division in the Oregon Office of Public Defense Services.

"We took a survey of local attorneys and asked, 'What would you charge for these kinds of cases?'" Aylward said.

They got a range of fees and settled on 25 percent higher than the lowest fee given for each type of case to create the fee schedule.

For a manslaughter case, the state estimates it would cost $5,000 to hire a private attorney in Benton County. Ensor said he had just defended a client in such a case.

"That's ridiculous," he said. "Most local attorneys aren't going to accept a manslaughter case without a $10,000 retainer."

And to defend the whole case would likely cost at least $20,000, he said. If the case went to trial it would cost much more because of the need to hire expert witnesses.

The U.S. Constitution doesn't guarantee the right to the best-available defense, Ensor said, only the right to a competent defense.

But, "You can't tell me anybody is going to be able to hire a competent attorney (for $5,000)," Ensor said.

"If they say, 'I called these three attorneys and nobody will take it,' " Aylward said, the state would re-evaluate their application for court-appointed counsel. The state, however, is OK with people borrowing money from family members or friends if they have to in order to pay for their own defense.

A price on the fee schedule will not be changed until the courts determine no one can find an attorney for the fee schedule amount, Aylward said.

"There are very few people who fall in the margin," Aylward said.

The attorneys disagreed.

"It's really unfair to people caught in between," Ensor said. "It's always been hard for people who have marginal jobs."

Well-to-do defendants can hire experts and take their cases to trial, whereas poor people can't - and according to Ensor, that means the working poor are more likely to get led away in handcuffs.

Public defenders

If $5,000 is a quarter of the actual cost for an attorney in a first-degree manslaughter case, then consider the $1,200 that Jennifer Nash and her six colleagues in the Benton County public defense consortium get from the state for taking such a case.

For a felony murder case, the state estimates a private attorney would cost $15,000. Nash has a private as well as a public practice.

"If somebody walked though my door I'd charge way more than that," Nash said, probably at least $50,000.

But if she defends such a case under the consortium contract with the state, she will get $9,000.

Under its contract, the consortium will be paid $579,480 to defend 1,650 cases in 2007, the same as in 2006. That's an average of $350 per case. The average in 2000 was $315 per case, and back in 1994, shortly after the privately hired attorney fee schedule was set, the average was $284 per case.

All of the consortium attorneys also maintain private practices. So why do the public work for so little?

"All of us have a very strong commitment to public service," Nash said. "It's important work that needs to be done."

Nash said about 70 percent of her caseload is for the consortium and 30 percent private. She also administers the consortium's contract with the state, using a system of points to divide up the cases among attorneys, so no one gets overloaded with any one kind of case.

There is little if anything standard about the contracts the Office of Public Defense Services has with attorneys around the state. Some counties have consortia, such as Benton County. Other areas have public defender offices, such as southwestern Oregon and Portland, which hire full-time attorneys; and some individual attorneys or law firms have their own contracts with the state with a wide variety of compensations for the same basic services.

The Coos County consortium gets $1,450 for Measure 11 felony cases; Benton County gets $1,200 and Umatilla gets $850. Some private firms get $1,820. Metropolitan Public Defender Services, Inc. in Portland gets $2,975.55 for each Measure 11 felony case.

Aylward said some of the inconsistency is because of a variation in services. For example, some of the fees include investigation costs and interpreters, while others don't.

Nevertheless, Nash said defense consortia around the state have been arguing for a standardization of the contracts.

"Some people think a court-appointed attorney won't work as hard for them," Nash said. "We have a group of lawyers who don't look at the bottom line of what we get paid."

Nash mentioned recent budget debates in the state, specifically about the Oregon Health Plan, which provides health care to low-income citizens.

"Given the choice between defense attorneys getting paid more, or the Oregon Health Plan," Nash said, "we'd all rather fund the health plan, because our clients need the money more than we do."