Jan. 12, 2018 - Looking back to the year 1995 brings a number of things to mind: Buzz and Woody from Toy Story make their big screen debut, the Sony PlayStation gaming console was released, and the popular computer operating system Windows 95 was introduced. 1995 was also the last time that the $40-per-hour rate for private bar attorneys taking assigned counsel cases was changed - reduced from $50 an hour. While Toy Story, PlayStation, and Windows 95 have all evolved and had many sequels, the private bar rate has remained flat and holds the dubious honor of being the lowest rate of any state in the nation.
Recently, members of the legislature have taken notice of the issues facing private bar attorneys taking assigned counsel cases from the State Public Defender’s office. Earlier this month AB 567/SB 467, sponsored by State Senator Patrick Testin (R–Stevens Point) and State Representative Ron Tusler (R–Harrison), received public hearings and were covered by an article in Rotunda Report. The legislation as proposed would create a pilot program allowing private bar attorneys to receive tuition relief by taking 50 or more assigned counsel cases in a county with a population of 25,000 or less.
The public hearings for AB 567 and SB 467 also created a rare opportunity to discuss the $40-an-hour rate and the impact the low rate has on the constitutional rights of Wisconsin citizens. In response, Representative Tusler and State Representative Even Goyke (D–Milwaukee) circulated a legislative proposal (LRB–4724/1) at the end of December to create a new rate structure and, most importantly, raise the rate.
In the cosponsorship memo circulated the last week of December, Rep. Tusler stated that “Wisconsin's $40-per-hour reimbursement rate is all-encompassing and unsustainable. It must cover the costs of filings, investigators, experts, and other overhead costs in addition to the time an attorney must spend preparing for, and appearing in, court. The low $40-per-hour rate leaves attorneys barely breaking even on most cases - effectively resulting in attorneys who take public defender appointments working for free.”
The circulation memo also mentions the pending Supreme Court petition 17–06 which is supported by the State Bar and numerous individuals and criminal justice advocates. The petition requests the Supreme Court take action on raising the rate to $100 for assigned counsel cases. At this point, the court has not scheduled the petition for a public hearing before the justices. Rep. Tusler and Goyke say they want the legislature to act before the court does so without legislative input or before the issue gets litigated, which has occurred recently in seven other states.
LRB 4724/1 (which will be assigned a bill number once it’s formally introduced) will establish tiered rate systems for private bar attorneys. The three tiers would be $55, $60, and $70 and would be based on the assigned case’s charge. The proposed legislation would also establish a private bar certification and decertification process. This would allow the State Public Defender’s Board to remove an attorney from the private bar list if they don’t reach certain performance standards.
The State Bar supports the legislation and sent out an action alert to members encouraging them to contact their elected state representative and state senators to support the proposal. State Bar members can still help in advocating for this legislation. Please feel free to contact Cale Battles at 608–250–6077 or cbattles@wisbar.org or Lynne Davis at 608–250–6045 or ldavis@wisbar.org for more information or assistance finding your current legislator.
The spring legislative floor period begins on Jan. 16. For more information on the spring legislation session or on the activities with the private bar rates please read the following articles from Rotunda Report and InsideTrack.
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