Counties push option to create county conflict counsel to control indigent defense costs
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Summary
LB859 would let counties create or contract a county conflict counsel office so judges will appoint that office before private counsel when public defenders conflict out; supporters said the change could stabilize rising appointed-counsel costs, while critics cautioned about operational and judicial-appointment issues.
LINCOLN — The Judiciary Committee considered LB859, introduced by Sen. Elliot Bostar, which would let counties establish a county conflict counsel or office to provide constitutionally required representation when public defenders are ethically conflicted or overloaded.
Bostar said the bill is discretionary and does not force counties to adopt the model. "When a conflict counsel is appointed, it is their duty to provide representation in the same manner as the public defender," he said, and argued the statutory priority would make a county‑run option the next in line after the public defender’s office, providing counties a budgeted alternative to private appointed counsel.
Lancaster County Commissioner Christa Yoakum told lawmakers that Lancaster’s appointed‑counsel spending rose from about $2.1 million in 2021 to roughly $5.34 million in 2025, and said the county supports an option that creates more predictable budgeting. John Cannon of the Nebraska Association of County Officials and other county officials echoed that rising, unpredictable fees fall to property taxpayers.
Opponents and neutral speakers, including Spike Eicholt of the Nebraska Criminal Defense Attorneys Association, said counties already can contract with firms to perform appointed work and urged caution: staffing conflicts, court appointment priority, and limits on market interest (firms unwilling to be exclusively conflict counsel) could complicate implementation. Eicholt noted judges retain appointment authority and that billing and fee review processes provide some existing checks on excessive fees.
Committee members asked whether the county conflict counsel would be used when public defenders are at caseload maximums as well as conflicts; sponsors confirmed the intent is to provide a broad second‑option, not solely for conflicts. Questions also addressed population thresholds, whether firms could serve as conflict counsel, and judicial discretion in appointing counsel. Bostar said he is drafting amendments with the Nebraska Commission on Public Advocacy to preserve the judiciary’s authority in the most serious cases.
No formal action was taken; proponents asked the committee to advance the bill for amendment work.