Rural NE county attorneys, public defenders confront ‘legal desert’ in hiring new lawyers

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LINCOLN — Three decades ago, Hall County Public Defender Gerald Piccolo could get more than 100 applicants for a job opening just by posting a notice on the bulletin boards at Nebraska’s two law colleges and sharing a notice with the state bar association. Now, he said, he’s lucky to get a handful of aspiring defense attorneys to apply. “I haven’t ever received more than 10 applicants for a job in the past 10 years,” Piccolo said. It’s part of a national trend of fewer law graduates due to decreased enrollment in law schools, which have seen a 21% drop in students since peaking in 2010. The shortage of potential new prosecutors and public defenders is presenting an even bigger problem in Nebraska’s smaller cities and rural areas, where it’s difficult to convince some college graduates to relocate.

Bill derailed

At Piccolo’s central Nebraska office, for instance, four of his eight lawyer positions were unfilled in 2022 and 2023, and two remain open today. “It’s just more attractive to live in Lincoln or Omaha than live in Grand Island, Madison County or Scottsbluff,” he said. “It’s easier to stay in Omaha or Lincoln because that’s where the law schools are.”

A bill to address the workforce shortage, however, got derailed in the Nebraska Legislature toward the end of the 2024 session due to a disagreement between the state’s prosecutors and defense attorneys over the incentives that should be offered.

State Sen. Danielle Conrad of Lincoln, who is a lawyer, had introduced legislation to expand financial incentives offered to “public service” attorneys — like county prosecutors and public defenders — who located in rural areas through the state’s long-running Legal Education for Public Service and Rural Practice Loan Repayment Assistance Program.

That program provides student loan repayment assistance to counties with less than 15,000 residents in an effort to address “legal deserts” in the state.

12 of 93 counties without lawyers

Twelve of the state’s 93 counties currently have no active lawyers, and 18 have three or fewer attorneys, according to the Nebraska State Bar Association. That shortage is projected to expand to 16 counties with no lawyers, and 32 with three or fewer by 2027, due to retirement of lawyers in rural areas.

“We hear from attorneys in rural Nebraska that they'd like to retire (but) their clients won't let them.”

– Liz Neeley, executive director, Nebraska Bar Association

“We hear from attorneys in rural Nebraska that they’d like to retire (but) their clients won’t let them,” Liz Neeley, the executive director of the Nebraska State Bar Association told a legislative committee this spring. That’s because there’s a lack of replacements for them, Neeley said. Some public defender/county attorney jobs have been vacant for six months in rural counties without a single applicant, she said, and a few jobs have been vacant for more than a year. Under Sen. Conrad’s proposed Legislative Bill 1195, the loan repayment program would be expanded to larger counties, such as Grand Island, Kearney, Hastings and Scottsbluff.

Killed by salary parity

Funding for expanding the program, about $500,000, was projected to come from the Nebraska Attorney General’s Office, which has amassed a reserve fund of millions of dollars via legal settlements it obtains from class-action lawsuits. But LB 1195, as originally proposed, failed to pass. The issue that killed it was salary parity — whether deputy county attorneys should be paid the same salary as deputy public defenders. “It was really disappointing,” Conrad said. “We were all rowing in the same direction, and then we got tripped up on this parity issue.” Representatives of the state’s county attorneys argued that the jobs are different, and shouldn’t get the same pay, and that local counties — not the state — should decide what they pay their employees. The parity issue arose during later crafting of the bill, and ended the county attorneys’ support for it. “(Parity pay) had nothing to do with getting more people out here. And it was problematic,” said Buffalo County Attorney Shawn Eatherton.

Fairness on front lines

County attorneys have broader responsibilities than public defenders, according to Eatherton. Not only do they prosecute criminal cases, he said, but handle civil lawsuits for the county, advise county officials on legal matters, handle child support enforcement, and serve as the county coroner. But Conrad said it is important to “establish fairness for those on the front lines” of the state’s legal system. There’s a clear disparity, she said, in the resources provided to public defenders. She added that public defenders, unlike county prosecutors, have to handle appeals of cases.

The supply of new attorneys is very restrictive now. It’s really become a challenge to hire someone.

– Gerald Piccolo, Hall County Public Defender

Salary parity, those interviewed said, only involves a couple of counties. Hall County, for instance, offers almost the identical pay range for new public defenders and deputy county attorneys: $74,318.00-96,990 for public defenders compared to $74,318-$105,664 for county attorneys.

The lack of attorneys to staff rural prosecutor and defender offices is also a financial issue. The Nebraska Association of County Officials, which surveyed counties, said it consistently costs them more money to contract with private attorneys to fill vacant county posts than it does to hire lawyers as county employees. Since counties are primarily funded via property taxes, it can raise such taxes, Conrad said. The lawyer shortage can also impact justice and judicial efficiency — the Constitution requires that criminal defendants get adequate legal services, and if contracted attorneys aren’t available, it can delay trials, and increase a county’s cost for jailing someone accused of a crime.

Not going away

Despite the failure of LB 1195 to address the shortage of public service attorneys, the issue isn’t going away, said Conrad and others. She said she plans to reintroduce a bill on the subject next year, and Eatherton agreed that something needs to be done. Meanwhile, in Hall County, Piccolo has adjusted his hiring process, and now advertises nationally via a hiring website to find candidates. Expanding the loan-repayment program would help, he added. In recent months, Piccolo was able to fill one of his openings with an attorney from New Jersey whose family had ties to Nebraska. But of his two remaining vacancies, one — to handle juvenile court cases — has been vacant for two years. “The supply of new attorneys is very restrictive now. It’s really become a challenge to hire someone,” Piccolo said.

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