May 3, 2017 – Wisconsin has the worst pay rate in the country for private attorneys who handle cases appointed by the State Public Defender (SPD). Now, one group will ask the state supreme court to stop the “constitutional crisis” that this pay rate is causing.

The U.S. Constitution (Sixth Amendment) and the Wisconsin Constitution (art. I, section 7) guarantee that all criminal defendants have a right to effective assistance of counsel. States must provide a lawyer to indigent defendants who can’t afford one.

All states have some form of public defender system to handle these appointments. The Wisconsin SPD is a state agency with 374 full-time public defenders in 40 offices throughout Wisconsin. SPD staff attorneys handled about 60 percent of the 138,858 case openings in 2016. But private bar attorneys handle the other 40 percent.

Private bar appointments are necessary when SPD attorneys are overloaded or conflicts exist. For this work, private bar attorneys are paid $40 per hour ($25 per hour for travel time), regardless of the case type or complexity, and regardless of the lawyer’s experience. The $40 rate has remained largely unchanged since 1978, when the Wisconsin Legislature set the private bar rate for SPD appointments at $35 per hour.

Lowest Rate in the Country

In 1978, $40 had the same buying power as $155 today, according to a consumer price index inflation calculator. Thus, it’s no surprise that many experienced criminal defense lawyers don’t jump at the chance to take SPD appointments, especially when $40 per hour doesn’t cover the overhead costs of practicing law in Wisconsin.

Many appointments are going to inexperienced attorneys under flat fee contracts that create conflicts of financial interest, according to criminal defense lawyer John Birdsall, who heads the Indigent Defense Funding Committee of the Wisconsin Association of Criminal Defense Lawyers (WACDL). This raises the constitutional question of whether defendants are receiving effective assistance of counsel, says Birdsall, co-counsel representing WACDL and others who will soon ask the Wisconsin Supreme Court to raise the private bar rate to $100 per hour.

“Good lawyers are no longer taking as many cases, and many are not taking any,” said Birdsall. “It’s the state’s obligation, under the Sixth Amendment, to ensure that each and every defendant is properly represented. Anybody with a law license can take SPD appointments, and often do especially in bad economic times when they can’t find a job.

“But criminal defense work takes experience. It’s not something you just dabble in. It’s not something you just try out to see if it fits. You are dealing with somebody’s life.”

Good lawyers are no longer taking as many cases, and many are not taking any.

– John Birdsall

Birdsall says it’s not constitutionally adequate for some or most defendants to receive effective representation. Under the U.S. and Wisconsin constitutions, effective representation is the right of all defendants. Thus, Wisconsin’s compensation rate for private bar attorneys leads to an unconstitutional system of public defense for criminal defendants, he says.

This is especially true, Birdsall noted, when attorneys contract with SPD to take multiple cases for a flat fee, because it creates an incentive to work fewer hours on a case.

That is, if an attorney agrees to take 20 cases in a year for $4,100 (average of five hours per case at $40 per hour), it creates a situation where attorneys must work fewer than five hours per case just to cover overhead costs and derive some profitable fee.

If an attorney is trying to make a living or stay afloat with SPD appointments, there is a conflict that forces attorneys to violate the duties they owe to clients, Birdsall says.

It’s not adequate to say that some or most defendants receive effective representation.

The petition that WACDL intends to file this month will ask the Wisconsin Supreme Court to raise the compensation rate for court-appointed lawyers from $70 to $100 (court-appointments, such as appointment of a guardian ad litem, are different than SPD appointments). It will also ask the supreme court to remove the provision that allows lawyers to engage in flat fee contracting when taking court-appointed cases.

And it will ask the court to declare that a private bar rate for SPD appointments at less than $100 per hour is unreasonable. The private bar rate for SPD appointments is tricky because in the past, the Wisconsin Legislature has set and changed the rate.

No Rate Change in 22 Years

The legislature, in 1992, increased the rate from $35 to $50 per hour for in-court time, $40 for out-of-court time, but reduced it to a uniform $40 per hour ($25 per hour for travel time) in 1995, where it stands today despite numerous attempts to increase it.

Notably, there are clear disparities in the reimbursement rates paid to attorneys who take SPD appointments and the rates paid to outside counsel by other state agencies. In other words, attorneys who represent alleged criminals are paid the lowest.

The SPD, in its most recent budget request, notes that the “low rate makes it increasingly difficult to find competent lawyers to take SPD appointments.”

The low rate makes it increasingly difficult to find competent lawyers to take SPD appointments.

– SPD Budget Request

The budget request notes that about 1,200 lawyers were certified to take SPD appointments in 2015, but 13 percent (156) did not take any.

Another 31 percent took fewer than 26 appointments. About 18 percent took between 26 and 50 cases, and 38 percent took more than 50 appointments in 2015.

“The SPD local offices report that one reason lawyers who used to accept appointments now take fewer appointments – or none at all – is because counties and federal courts pay substantially higher rates,” the budget request notes.

SPD Communications Director Randy Kraft said the SPD “has long supported the need to raise the private bar rate,” and SPD will review the petition when it is filed. The State Bar of Wisconsin’s Board of Governors voted to support the petition at its April 21 meeting.

Shared Authority

The petitioners – including WACDL, former and current district attorneys, law professors from both law schools, a former Wisconsin attorney general, and other high-profile lawyers in Wisconsin – say the time has come for the Wisconsin Supreme Court to intervene on an issue that the Wisconsin Legislature has failed to address.

Numerous attorneys filed a similar petition in 2010 that asked the court to increase the compensation rate for court-appointed lawyers to $80 per hour and declare that the private bar rate for SPD appointments is unreasonable if under $80 per hour.

In 2011, the supreme court declined to do so. However, its written decision includes holdings that petitioners are now relying on to make the case this time around.

In ruling on the question of whether the supreme court can declare a legislative mandate “unreasonable,” the court previously concluded: “We agree that this is an area of shared authority for the court and the legislature, but we decline at this time to use our administrative regulatory process to effectively circumvent a legislative enactment.”

The court acknowledged a “shared authority” when it comes to the private bar rate for SPD appointments, which impacts the constitutional right to effective assistance of counsel. The court denied the petition because it provided only “anecdotal evidence” to assert that funding shortfalls were compromising defendants’ constitutional rights.

But the court also acknowledged, six years ago, that a constitutional crisis could be coming: “Our criminal justice system is reaching a breaking point,” the decision states. “The resources available for the defense of poor people accused of crime has fallen alarmingly, potentially compromising our constitutional responsibility to ensure that every defendant stands equal before the law and is afforded the right to a fair trial guaranteed by our constitution. If this funding crisis is not addressed we risk a constitutional crisis that could compromise the integrity of our justice system.”

Empirical Evidence

The forthcoming petition will include empirical evidence that supports the petitioners' assertion that the constitutional crisis has arrived.

Two studies, one by the National Association of Criminal Defense Lawyers (NACDL) and another by the Sixth Amendment Center, note how other states have dealt with this issue and how Wisconsin’s private bar rate for SPD appointments implicates the constitutional rights of criminal defendants.

The Sixth Amendment Center report, Justice Shortchanged: Assigned Counsel Compensation in Wisconsin, notes American Bar Association (ABA) standards relating to public defender systems. One of 10 principles says “assigned counsel should be paid a reasonable fee in addition to overhead costs” and attorneys should not be paid based on flat fee contracts.

Wisconsin’s private bar rate for SPD appointments violates both standards as the hourly rate does not consider overhead costs and flat fee contracting is allowed.

Wisconsin’s private bar rate for SPD appointments violates both standards as the hourly rate does not consider overhead costs and flat fee contracting is allowed. Based on the State Bar of Wisconsin’s 2013 Economics of Practice Survey, the $40 rate does not cover the average private attorney’s hourly overhead costs, estimated at $41.72.

The NACDL report notes a number of states in which assigned counsel rates have been challenged in court because they did not afford a reasonable fee in addition to overhead costs. For instance, the $30 assigned counsel rate was challenged in Kansas in 1987.

The Kansas Supreme Court determined that the state had an obligation “to pay appointed counsel such sums as will fairly compensate the attorney, not at the top rate an attorney might charge, but at a rate which is not confiscatory, considering overhead and expenses.” Kansas now compensates assigned counsel at $80 per hour.

The supreme courts of Alaska, West Virginia, Mississippi, Oklahoma, New York, and Alabama came to similar conclusions about their assigned counsel rates.

A New York court chastised the executive and legislative branches for failing to raise the assigned counsel rate for 17 years, leading to a “crisis” that impaired the judiciary’s ability to function. In other states with a lower cost of living, including North Dakota and Arkansas, independent commissions with authority to set assigned counsel rates have increased them in recent years. North Dakota is at $75 per hour, according to NACDL.

To obtain a reasonable fee, an attorney would need to close the case after three hours.

The data that NACDL published also notes that SPD paid fixed-fee contracts between $248 and $362 per case in 2014. Based on the average overhead rate of $41.72, an attorney working a fixed-fee case at $248 would begin to lose money after six hours.

To obtain a reasonable fee, an attorney would need to close the case after three hours. “There is a clear financial incentive to the attorney to limit what is done on a case in order to make it profitable, all to the detriment of the defendant,” the report notes.

Even the average misdemeanor case requires a number of fundamental tasks to provide effective representation, the report notes, concluding that the majority of cases should take more than three hours to ensure the client is ethically represented.

A Third (and Equal) Branch

The reports cited by petitioners are full of other empirical evidence that Wisconsin’s assigned counsel system is fraught with pitfalls that violate constitutional rights, and petitioners assert that the Wisconsin Supreme Court has the power to do something.

“There is no separation of powers concern here,” petitioners note in a draft petition. “This court recognized that it has ‘shared authority’ in this area with the legislature. And this court has inherent power to ensure the effective administration of justice. …”

There is no separation of powers concern here.

– John Birdsall

Increasing the private bar rate to end the constitutional crisis through a supreme court rule, petitioners note, will not force the legislature to expend more money.

“The Wisconsin legislature can, for instance, find other ways to offset the increased costs required to fulfill the constitutional command of access to competent, conflict-free counsel,” states the draft petition, which notes ways to save money on criminal justice.

According to Birdsall, the supreme court is the last hope: "The Wisconsin Supreme Court is the only hope hundreds of thousands of poor people have to access effective assistance of an attorney and true justice,” he said. “Those who advocate waiting for the legislative or executive branches to do something are hopelessly naive."