March 22, 2010 – While a bill to increase the hourly rate paid to private attorneys who accept appointments from the State Public Defender languishes in the Legislature, several Wisconsin attorneys have filed a petition with the Supreme Court to increase the rate for court-appointed attorneys to $80 per hour.
The group filing the petition includes eight past presidents of the State Bar of Wisconsin.
If approved by the court, the petition would increase the Supreme Court rate under SCR 81.02 to $80 per hour and index 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 SPD private bar appointments is set by statute at $40 per hour.
While the petition would not directly set SPD private bar rates, it would provide 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.
The attorneys who filed the petition include the following past presidents of the State Bar: Patricia K. Ballman, Thomas J. Basting Sr., Michelle A. Behnke, Gregory B. Conway, Franklyn M. Gimbel, Gerald M. O’Brien, G. Lane Ware, and John S. Skilton. Other attorneys named in the petition include Richard T. Becker, Robert H. Friebert, former Wisconsin Supreme Court Justice Janine P. Geske, former Milwaukee County District Attorney E. Michael McCann, Jose A. Olivieri, Timothy W. Burns, and Dean A. Strang.
While the State Bar’s Board of Governors has not yet considered the new petition, it does have an existing public policy position supporting SPD private bar rates “equal to those set by the Wisconsin Supreme Court for court-appointed attorneys.”
The petition has been referred to State Bar sections, divisions and committees for comment. The Board of Governors is likely to consider the petition at its meetings in May or June of this year.
The attorneys who filed the petition March 5 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 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, although the proposed rule effectively would double the rate of hourly compensation for counsel representing indigent criminal defendants, the fiscal impact of the proposed changed 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.”
Bill to increase SPD private bar rate languishes; expanded SPD eligibility enacted
Meanwhile, prospects for a legislative increase this year in the $40 rate paid to private attorneys who take appointments from the State Public Defender are growing dimmer as the April conclusion of the current legislative session draws closer.
A bill to increase the hourly rate for private bar appointments from $40 to $70 received a tie vote in the Assembly’s Committee on Judiciary and Ethics on March 9. Despite the 4-4 party-line vote, the committee’s chair has reported the bill out of committee. Because the legislation includes the allocation of state funds, legislative leaders have referred it to the Joint Finance Committee, which will have to approve the bill before it can be scheduled for a full vote of the state Assembly.
The legislation - Assembly Bill 224 - would significantly increase the hourly rate for SPD private bar appointments if ultimately enacted into law. Past president Diane Diel testified in support of the bill on behalf of the State Bar at a well-attended public hearing on June 2, 2009. The State Bar has long supported legislation such as AB 224, which was introduced earlier this session by Rep. Frederick Kessler.
To date, similar legislation has not been introduced in the state Senate. Even if ultimately passed by the Assembly, AB 224 would still have to receive a public hearing and committee vote in the Senate and then a vote by the full house, all before the end of regular legislative business in April.
After last year’s public hearing, State Bar lobbying staff delivered to committee members the names of more than 130 private bar attorneys who support the legislation and could not attend the hearing, as well as more than 30 letters favoring the bill from State Bar members.
“Attorneys who accept public defender appointments play a fundamental role in maintaining one of our most important institutions – an honest, fair and effective criminal justice system. Wisconsin’s long-outdated hourly rates for private practice attorneys who take public defender cases makes it difficult for attorneys to accept State Public Defender (SPD) appointments and run a successful small business, resulting in delays and postponements of cases,” Diel told legislators at last year’s public hearing on AB 224.
During the 2006-2007 fiscal year, the Office of the State Public Defender appointed over 142,000 cases to attorneys in Wisconsin and nearly half of those cases were assigned to private practice lawyers. The hourly rate they receive has not been increased since 1992, and in fact was cut to its current level in 1995. The low rate makes it increasingly difficult to find lawyers willing to take SPD appointments.
In July 2008, Diel wrote to Gov. Doyle, urging him to take steps to improve compensation for defense attorneys who take SPD private bar cases in order to boost retention of experienced lawyers on the private bar list. She renewed that call in October 2008 and again last year.
The State Bar’s Board of Governors has a long-standing public policy position in favor of raising the private bar rate. That position states that the State Bar “supports private practice lawyers’ compensation for public defender appointments at a rate that fairly compensates lawyers for their time. Rates of compensation should be equal to those set by the Wisconsin Supreme Court for court-appointed attorneys.”
The State Bar’s Government Relations team has established a separate web page dedicated to the SPD private bar issue.
In a related development, Gov. Jim Doyle has signed legislation expanding financial eligibility for the appointment of a public defender, achieving another major public policy goal of the State Bar of Wisconsin.
Gov. Doyle signed 2009 Wisconsin Act 164 into law on Monday, March 15. The bill expands state financial eligibility for public defender representation from the antiquated 1987 AFDC limits to current W-2 limits, which generally are 115 percent of the federal poverty level.
Beginning in June 2011, the bill authorizes hiring 32 new SPD staff attorneys and 17 support positions to accommodate the anticipated increase in the State Public Defender’s caseload at an estimated cost of approximately $4.6 million annually.
Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated information on these issues.
By
Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin
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Governor signs bill expanding public defender eligibility limits - March 17, 2010
