John Birdsall presents a petition on the hourly rate for court-appointed attorneys.

April 27, 2017 – The State Bar of Wisconsin’s Board of Governors held their April meeting last Friday and voted to support a forthcoming petition to increase to $100 the hourly rate paid to private bar attorneys who take appointments from the State Public Defender's Office.

Dist. 2 Gov. John Birdsall said the State Public Defender (SPD) appoints nearly 40 percent of its cases to the private bar based on conflicts that preclude staff representation. Private attorneys who take SPD appointments receive $40 per hour, which is the lowest rate in the country.

The Wisconsin Legislature sets the SPD private bar rate under Wis. Stat. section 977.08. The rate has remained largely unchanged since 1978 when the SPD was established. At that time, the Legislature set the SPD private bar rate at $35 per hour.

Petitioners assert that Wisconsin is now facing a “constitutional crisis” because fewer and fewer experienced attorneys are willing to take SPD appointments at $40 per hour, a compensation rate that fails, in many cases, to cover overhead expenses.

Thus, many criminal defendants in Wisconsin may not receive the effective legal representation that is required by the Sixth Amendment to the U.S. Constitution.

The petitioners – including the Wisconsin Association of Criminal Defense Lawyers, former and current district attorneys, several former State Bar presidents, 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.

“The court itself has stated that there is a direct connection to the effectiveness of appointed counsel and the rate paid,” said Birdsall, one of the attorneys who filed the petition on behalf of petitioners. “The legislative and executive branches have failed to act through both neglect and active indifference."

“The co-equal branch of government, the Supreme Court of Wisconsin, has the exclusive responsibility to ensure compliance with the Gideon v. Wainwright mandate to supply poor people with effective lawyers,” Birdsall said.

“It is incumbent on that branch to stop the free fall into the abyss of a constitutional crisis that we are currently headed toward. As more lawyers leave the area of indigent defense, we will soon be unable to meet that mandate. We need only look at Louisiana’s current crisis to see our immediate future.”

Constitutional Crisis

About six years ago, the Wisconsin Supreme Court rejected a similar petition that sought to raise the private bar rate to $80, noting that adopting it would “constitute a challenge to the compensation rate set by the legislature in Wis. Stat section 977.08.”

The court, in its final order, recognized the area as one of shared authority for the court and the legislature, but said: “[W]e decline at this time to use our administrative regulatory process to effectively circumvent a legislative enactment.”

But the court also noted: “If this funding crisis is not addressed we risk a constitutional crisis that could compromise the integrity of our justice system.” Petitioners now say that constitutional crisis is here and provide empirical evidence to support the claim.

The petition, likely to be filed in early May, would increase the rate that attorneys receive for direct court appointments, under Wisconsin Supreme Court Rule (SCR) 81.02, from $40 to $100, starting in 2018 with annual increases tied to the Consumer Price Index.

It would also ban contracts for the provision of court-appointed legal services at a lesser rate than $100, and declare that an hourly rate less than the rate set by SCR 81.02 for legal services rendered pursuant to appointment by the SPD is unreasonable.

Since the legislature has failed to address the SPD private bar rate, despite repeated requests to do so in the last 10 years, the petitioners call on the Wisconsin Supreme Court to address the issue, noting its “shared authority” in this area and its inherent authority to ensure the effective administration of justice in Wisconsin.

“The Court should not fear that adopting a court rule increasing pay will necessarily result in forcing the legislature to expend more money,” petitioners wrote. “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.”

President Deisinger urged governors to support the petition, saying that the issue is both vexing and complex. “The rate private attorneys are getting in this state is scandalous. Read our vision statement: ‘Our members are the respected guardians of the dignity and integrity of the rule of law within a fair and accessible justice system.’ This is a core issue. It’s who we are.”