What might state lawmakers do to help?

Indiana’s legal community is raising alarms about a statewide shortage of attorneys that has already led to barren courtrooms leaving hundreds of Hoosiers unrepresented.

The concerns were discussed during an interim study committee meeting Wednesday at the Statehouse.

Justin Forkner, chief administrative officer for the Indiana Supreme Court, told members of the corrections panel that Indiana has about 2.3 lawyers per 1,000 residents — below the nationwide average of four lawyers. That puts the state in the bottom 10 nationally for available counsel.

“Indiana has a lawyer shortage, and it’s growing. This is a challenge,” Forkner said, referring to the ratio of lawyers to residents in Indiana that is continuing to decline. “It’s certainly, I think, impacting our criminal justice system. It’s hitting us across the board, across the state, and all types of cases.”

Indiana has some 19,000 active lawyers on the rolls, he continued, although that includes many who don’t currently practice. Forkner said the state probably has 15,000 to 16,000 lawyers actually practicing.

A 2020 report by the American Bar Association found that 40 of the state’s 92 counties had fewer than one lawyer per 1,000 residents.

Rural areas struggling to replace lawyers

The average Indiana attorney in a metropolitan county has been admitted to the bar and practicing law for 24 years. That increases to 25.7 years of experience in rural counties.

Indiana Supreme Court data further shows the vast majority of lawyers clustered within central Indiana’s urban counties of those. About 8,000 are in Marion County and the surrounding doughnuts, alone. 

Areas of the state with fewer lawyers — typically rural communities — tend to have older lawyers practicing now. Younger lawyers, on the other hand, are largely located in the Indianapolis metro region. Less than a third of lawyers in Marion County are of retirement age, for example.

“Looking at that retirement window opening, that’s where we really start to worry — when folks hit 29 years past admission (to the bar), even though lawyers can practice well past that,” Forkner said. “We’re just not seeing the young lawyers backfilling the older lawyers as they retire out of rural counties. And that causes a number of workforce problems.”

The state is additionally struggling with what Forkner called “attorney surrogate issues” — finding interim or replacement attorneys and judges when one retires or has a medical issue. 

Forkner partly attributed the problem to Hoosier law schools, which he said are churning out fewer students who actually pass the bar and become practicing attorneys in Indiana. Lawyer deserts in certain parts of the state are also made worse when could-be attorneys don’t have easy access to law schools, he said.

“That creates not just an access to justice problem in those counties, but an access to law school program problem in those counties,” Forkner said. “We have to incentivize and support rural practice — connect people from rural counties to law schools and vice versa. That’s been a struggle.”

While Indiana University’s McKinney School of Law offers a hybrid program, some in-person attendance is still required, Forkner noted. Fully remote law degree programs could help increase access.

He recommended that Indiana move to a model more aligned with medical practitioner licenses, “scaling what you’re allowed to do, based on the type of license issued.” He said the legal community also needs to “get our heads around” new emerging technologies — like online dispute resolution and artificial intelligence — which could help “safely and ethically backfill some of our legal access challenges.”

“We need more lawyers. Absolutely. We need more lawyers from places and in places that we don’t have them now,” Forkner said. “But the idea that we’re going to lawyer our way out of this is false.”

Prosecutors push for higher pay

Indiana prosecutors are experiencing a similar “pinch,” said Courtney Curtis, government affairs director for the Indiana Prosecuting Attorneys Council (IPAC). Twenty-eight Indiana counties have prosecutorial listings on IPAC’s website.

Turnover among prosecutors is high, Curtis said. On average, Indiana prosecutors have less than five years experience, “so they’re extremely young.”

The shortage comes as the number of criminal filings continues to swamp the state’s prosecutors.

“The burden on the criminal justice system continues to grow,” Curtis said Wednesday. “We are not just losing attorneys in the state. Prosecutors and the work that we do is not necessarily as attractive when it comes to trying to feed your family, and that is a problem.”

“We have plans to create more new courts, but we don’t have plans on the county level to staff those courts,” she continued.

Curtis presented data showing that median pay of a deputy prosecutor in Indiana is about $19,000 less than that of an Indiana state trooper. It’s about $30,000 less than an attorney for the Department of Child Services.

Other numbers indicated that the minimum starting salary of a county public defender “is only $3,000 less than the median pay for a deputy prosecutor sitting across the courtroom.”

She also emphasized that prosecutors do not lose their law school debt under the Public Service Loan Forgiveness until they have made consecutive payments for 10 years.

Curtis emphasized prosecutors’ increasingly heavy workloads, but said courts across the state “did a really great job” moving court proceedings to Zoom during the COVID-19 pandemic. 

Now, however, many Indiana judges “have moved away from that and do not want to help us over Zoom going forward,” Curtis said.

“So, you may have a prosecutor from one county having to drive six or seven counties over to sit in the courtroom for a pretrial conference,” she added.

Zach Stock with the Indiana Public Defender’s Council echoed the same concerns, saying public defenders “of course are equally affected by the crisis.”

He pointed to Vanderburgh County, where over the summer, there were no attorneys available for hundreds of defendants accused of crimes.

Curtis said the first plan of action should be to “stop the bleed” by increasing salaries for deputy prosecutors. Doing so might require assistance from the General Assembly, given that individual counties have been apprehensive or unable to give those raises locally. 

Part of the solution could mean reimbursement from the state. But Curtis acknowledged that such action might take more time because the state budget has already been set through the 2025 fiscal year.

Even so, Sen. Aaron Freeman, R-Indianapolis, said he agreed with Curtis’ call for more cases to be heard over Zoom insinuating that lawmakers could take action on that front in the coming year.

Still, Curtis cautioned that prosecutors might be forced to stop taking certain cases if the attorney shortage isn’t addressed soon, which breeds increased worries.

In recent years, state lawmakers have increasingly passed — or attempted to pass — measures aimed at preventing county prosecutors from refusing to enforce certain laws. Curtis said local prosecutors “do not, by and large, want to be seen as potentially non-compliant.”

“The people that we see leaving prosecution are not leaving it because it was too hard or they didn’t enjoy it,” she said. “They’re leaving it because they can’t afford to feed their families and have any money leftover if they remain a prosecutor.”

This story originally was published by the Indiana Capital Chronicle, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Follow Indiana Capital Chronicle on Facebook and Twitter.