By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin
Nov. 15, 2010 – The Wisconsin Supreme Court has taken action on two rule-making petitions including a vote to hold in abeyance a petition that would have increased the compensation rate for court-appointed attorneys to $80 per hour. The court also denied another petition that would have provided for the permanent revocation of attorney licenses in certain disciplinary cases.
The court met in open administrative conference on Nov. 10 to vote on the petitions after holding a public hearing on them the previous day.
Compensation petition held in abeyance
The court acted first on petition 10-03, filed by a group of Wisconsin attorneys that included eight past State Bar of Wisconsin presidents. That petition would have increased the Supreme Court rate under SCR 81.02 to $80 per hour and would have indexed the rate to the consumer price index.
The current Supreme Court rate for court-appointed attorneys such as GALs is set by rule at $70 per hour, but this rate does not apply to SPD private bar appointments. The rate for State Public Defender (SPD) private bar appointments is set by statute at $40 per hour.
While the petition would not have directly determined SPD private bar rates, it would have provided that payment of an hourly rate less than the rate set forth in SCR 81.02(1) for legal services rendered pursuant to appointment by the SPD under Wis. Stat. section 977.08 is “unreasonable.”
After discussion, the court voted 6-1 to hold the petition in abeyance. The justices indicated that they intend to draft a formal opinion expressing their concern over the current compensation rate for SPD appointments and urging the legislature and governor to address the matter.
On May 4, 2010, the State Bar’s Board of Governors voted to support the petition. State Bar President-elect Jim Brennan and Milwaukee Attorney Ray Dall’Osto represented the State Bar in supporting the petition at the Nov. 9 public hearing. The BOG has an existing public policy position supporting SPD private bar rates “equal to those set by the Wisconsin Supreme Court for court-appointed attorneys.”
The petitioners were represented at the Nov. 9 public hearing by attorneys John S. Skilton, Dean. A. Strang, David E. Jones and Robert H. Friebert.
The attorneys who filed the petition include the following past presidents of the State Bar (in addition to Skilton): Patricia K. Ballman, Thomas J. Basting Sr., Michelle A. Behnke, Gregory B. Conway, Franklyn M. Gimbel, Gerald M. O’Brien, and G. Lane Ware. Other attorneys who signed the petition include (in addition to Friebert and Strang) Richard T. Becker, former Wisconsin Supreme Court Justice Janine P. Geske, former Milwaukee County District Attorney E. Michael McCann, Jose A. Olivieri, and Timothy W. Burns.
The attorneys, who filed their petition on March 5, 2010, also filed a supporting memorandum. According to the memorandum, the current rate of compensation in federal court for appointed counsel in criminal cases is $125 an hour. The memorandum states that the proposed rule amendment would permit lawyers representing indigent criminal defendants and the defendants themselves to assert that a rate of compensation less than $80 per hour is unreasonable, by Supreme Court Rule.
The memorandum also states that the $80 hourly rate the petition proposes would effectively double the rate of hourly compensation for counsel representing indigent criminal defendants. The fiscal impact of the proposed change is unclear and would require study. According to the memorandum, “Variables include the legislature’s response; the possibility that it would be cost-effective to increase the number of staff attorneys employed by the State Public Defender to reduce the number of cases appointed to private counsel; and the possibility that expense of indigent defense would shift from the counties entirely back to the state if the legislature responds appropriately, or would not.”
In voting to hold the petition in abeyance on Nov. 10, several of the justices cited concerns regarding the state’s current economic and budgetary climate.
When the legislature adjourned its regular session in April 2010, it left unfinished a bill that would have increased the hourly rate for private bar State Public Defender appointments from $40 to $70
Court denies permanent revocation petition
The court on Nov. 10 also voted unanimously to deny petition 10-04, which was filed by the Board of Administrative Oversight and the Preliminary Review Committee, to create rules to allow for the permanent revocation of an attorney’s license for misconduct in egregious cases. (Currently, a revoked attorney may petition the court for reinstatement after five years.) The court also held a public hearing on this petition on Nov. 9, 2010.
At its meeting on Feb. 26, 2010, the BOG voted to oppose the petition. Madison attorney Frank Remington, a BOG member, represented the State Bar at the public hearing.
In denying the petition, the justices indicated they intended to suggest that the petitioners consider asking the court to increase the period of time that must pass before a revoked person can request reinstatement or making other adjustments to the criteria the court considers when deciding reinstatement cases.
Related articles:
Private bar appropriation expected to run out of money at least five months early - October 27, 2010
Supreme court sets 2010-11 schedule of rule-making proceedings - August 9, 2010
Bill to increase SPD private bar rate dies as Legislature adjourns for the year - May 11, 2010
Petition filed to increase Supreme Court rate for court-appointed attorneys - March 22, 2010
Supreme Court to continue studying record retention and removal petition - February 26, 2010
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