Because the U.S. Constitution demands that a poor person facing a potential loss of liberty in a criminal or delinquency proceeding be given the services of a competent lawyer, the Wisconsin Supreme Court must ban all indigent-defense attorney compensation arrangements that interfere with a lawyer’s professional independence by creating economic incentives to dispose of cases quickly, rather than justly. Thus concludes Justice Shortchanged1, a new Sixth Amendment Center report that highlights how Wisconsin’s assigned-counsel compensation rates, the lowest in the nation,2 place the indigent accused’s constitutional right to effective representation in direct conflict with an attorney’s financial health.
Measuring the System against National Assigned-counsel Standards
In 2002, the American Bar Association promulgated Ten Principles of a Public Defense Delivery System – a set of 10 standards that, in the words of the ABA, “constitute the fundamental criteria necessary to design a system that provides effective, efficient, high quality, ethical, conflict-free legal representation for criminal defendants who are unable to afford an attorney.”3
The Ten Principles requires two things of the indigent defense system when it comes to assigned-counsel compensation. Principle 8 states that “[a]ssigned counsel should be paid a reasonable fee in addition to actual overhead expenses,” while also specifically banning contract systems that are let “primarily on the basis of costs” without regard for “performance requirements,” “anticipated workloads,” and additional expenses – referred to nationally as “flat-fee” contracting.
The state of Wisconsin currently pays private lawyers handling public defense assignments in one of two ways: 1) at a rate of $40 per hour (a rate that has not changed since 1995 when the Wisconsin Legislature reduced the rate from $50 per hour); or 2) a flat, per-case amount (for example, $248 for a misdemeanor case).
Wisconsin Violates the ABA Ten Principles’ Demand that Appointed Counsel Be Paid Both a “Reasonable Fee” and “Actual Overhead Expenses”
In November 2013, the State Bar of Wisconsin published the results of its 2013 Economics of Practice Survey.4 For 2012, Wisconsin private practitioners had median total annual overhead expenses of $102,050. To calculate an average overhead rate, the annual median expenses must be divided by 12 months and then divided again by the number of hours the average attorney works in a month. Based on the State Bar survey, the average practitioner spends approximately $8,500 on overhead expenses per month. The State Bar survey reports that Wisconsin attorneys work, on average, 47 hours per week. Assuming the average month consists of 4.33 weeks, Wisconsin attorneys work about 204 hours per month. This means that the average overhead rate in Wisconsin is $41.79, or slightly more than the total $40-per-hour compensation offered by the state.
John A. Birdsall, U.W. 1989, operates Birdsall Law Offices SC, Milwaukee, focusing on defending the wrongly accused and helping clients defend their rights. He writes and lectures on criminal law topics for a variety of audiences.
To underscore just how a $40-per-hour rate does not begin to afford both a reasonable fee and coverage of actual overhead expenses, one need only to look at other states that have had their assigned-counsel compensation rates challenged in court (most of which have significantly lower costs of living in comparison to Wisconsin).
Kansas. In 1987, the Kansas Supreme Court determined that the state has an obligation to pay appointed counsel “at a rate which is not confiscatory, considering overhead and expenses.”5 Testimony was taken in the case that the average overhead rate of attorneys in Kansas in 1987 was $30 per hour. Kansas now compensates public defense attorneys at $80 per hour.
Mississippi. In 1990, the Mississippi Supreme Court determined that indigent-defense attorneys are entitled to “reimbursement of actual expenses” in addition to a reasonable sum, and defined “actual expenses” to include “all actual costs to the lawyer for the purpose of keeping his or her door open to handle this case.”6 The Mississippi State Bar determined that overhead costs 25 years ago in that state were $34.86.
Oklahoma. Based on the existing salary structure for Oklahoma district attorneys, the Oklahoma Supreme Court determined in 1987 that a reasonable appointed-counsel fee was between $14.63 and $29.26 (based on experience) and “[a]s a matter of course, when the district attorneys’ … salaries are raised by the Legislature so, too, would the hourly rate of compensation for defense counsel.” 7 In addition, the Oklahoma Court determined that attorneys must be paid overhead and out-of-pocket expenses. The overhead costs for the Oklahoma attorneys in 1989 were $48 per hour – making the low end of the range to be $62.63.
New York. Announcing in 2003 that “[e]qual access to justice should not be a ceremonial platitude, but a perpetual pledge vigilantly guarded,”8 the Supreme Court for the County of New York ordered the city and state to compensate assigned-counsel attorneys at $90 per hour – an increase from the $40-per-hour rate they were being paid. The court determined that the $40-per-hour rate paid to panel attorneys was “insufficient to cover even normal hourly overhead expenses,” which the court pegged at approximately $35 per hour. The following year, the rate was statutorily amended to $75 per hour.9
Alabama. In 1993, the Alabama Court of Criminal Appeals determined in May v. State10 that indigent-defense attorneys were entitled to overhead expenses (set at $30 per hour) in addition to a reasonable fee. When the Alabama Attorney General issued an opinion against paying the overhead rate, the issue was litigated all the way to the Alabama Supreme Court. In Wright v. Childree,11 the Alabama Supreme Court determined that assigned counsel are entitled to a reasonable fee in addition to overhead expenses. After this litigation, the Alabama Legislature increased the hourly rate to $70 per hour.
Although it is not the result of litigation, it should also be mentioned that in 2000, the South Dakota Supreme Court set public counsel compensation hourly rates at $67 per hour. To ensure that attorneys were perpetually paid both a reasonable fee and overhead, the court also mandated that “court-appointed attorney fees will increase annually in an amount equal to the cost of living increase that state employees receive each year from the legislature.” Assigned-counsel compensation in South Dakota now stands at $90 per hour.12
Indeed, even in Wisconsin, the state supreme court has authorized payment of $70 per hour for attorneys appointed directly by lower courts in those instances in which the State Public Defender (SPD) has a conflict in which neither the primary public defender system nor the assigned-counsel system can ethically represent a client (for example, multiple-defendant cases for which not enough assigned-counsel attorneys are available). This rate has been in place for approximately 20 years.13
National Assigned Counsel Standards
Click on the map to expand.
Wisconsin Violates the ABA Ten Principles’ Prohibition on Contracts Let Primarily on Cost
As of February 2014, the SPD used 58 fixed-fee contracts compensating attorneys at a rate between $248 and $362 per case (depending on the county). These Wisconsin contractual arrangements produce financial incentives to triage work in favor of some defendants, but to the detriment of others.
Using the State Bar’s $41.79 per hour overhead rate, an attorney paid the state’s $248 per misdemeanor case flat fee would begin to lose money within the first six hours’ worth of work performed on the case (and would not have any net income from the fee). What if the attorney wants to earn some money and, on average, disposes of the cases within five hours? Under that scenario, the attorney’s overhead costs would be $208.95. This leaves a “reasonable” fee of just $39.05. Spread over the five hours’ worth of work, the attorney is working at a rate of $7.81 (or slightly more than minimum wage).
Working to complete the average job in three hours means that an attorney expends $122.63 in overhead costs, netting $125.37 for himself or herself. This equates to working at a rate of approximately $42 per hour – approaching a “reasonable fee” based on the rates of other states. 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.
For example, in 2014, the ABA published a report14 determining that an average misdemeanor case in Missouri takes 11.7 hours of attorney time to dispose of the case appropriately through a plea deal. Applying this analysis to Wisconsin, the state of Wisconsin would have to pay attorneys nearly $490 per misdemeanor case just to cover overhead.
Unreasonably Low Attorney-compensation Rates Interfere with a Lawyer’s Ethical Obligation to Give Undivided Loyalty to Every Defendant
There is a constitutional imperative for defender representation to be independent and free from undue interference with a lawyer’s professional judgment. In a 1979 case, Ferri v. Ackerman, the U.S. Supreme Court determined that “independence” of appointed counsel to act as an adversary is an “indispensible element” of “effective representation.”15
Two years later, the Court determined in Polk County v. Dodson that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages.”16 Observing that “a defense lawyer best serves the public not by acting on the State’s behalf or in concert with it, but rather by advancing the undivided interests of the client,” the Court concluded in Polk County that a “public defender is not amenable to administrative direction in the same sense as other state employees.”
Both unreasonable compensation with no allowances for overhead expenses and flat-fee contractual arrangements to represent the poor in criminal courts are constitutional violations precisely because each pits the attorney’s financial well-being against the client’s right to conflict-free representation. A lawyer can be pushed into thinking about how to make the representation profitable in addition to, and potentially in opposition to, the stated interest of the client.
To discover whether such negative impacts exist in Wisconsin in relation to the low attorney-compensation rate, the authors of the report conducted a survey of Wisconsin lawyers. Nearly one half of respondents (49.4 percent) stated that they represent fewer public-defender-appointed clients than in the past. This is in addition to the 6.8 percent of respondents stating that they no longer take SPD appointed cases at all. These results confirm what the SPD reported in its 2013-2015 Biennial Budget Issue Paper: “Although there are currently about 1,100 lawyers on the appointment lists, about 25% of them take less than five cases per year and more than 10% take one or less cases per year.”17
This is important because there appear to be two distinct classes of appointed attorneys: 1) those attorneys who take occasional cases (perhaps out of a self-perceived duty to the court or the SPD); and 2) those lawyers who represent a significant number of SPD defendants. But, before delving deeper into that divide, it is important to note that regardless of how many SPD cases an attorney takes on annually, the survey showed that Wisconsin attorneys spend, on average, about 13 percent less time working on their appointed cases than on similar cases for which they are privately retained.
A lawyer must be appointed early to represent the accused so that she can work with the client to develop the level of trust that is essential to her ability to be effective. However, surveyed attorneys reported that they spend 37 percent less time, on average, meeting with their appointed clients than they do with their retained clients.
Motions, too, are a vitally important component of an attorney’s litigation strategy. The Wisconsin survey revealed that attorneys who have a higher number of public defender cases tend not to file motions in their cases, and they are more likely to resolve cases by their public defender clients pleading to the offense charged. This suggests that attorneys with many SPD cases are prioritizing speed in order to make representation more profitable. Even if that is not the conscious intent, the pressure of having to make a living can have that effect.
Conclusion
In urging the Wisconsin Supreme Court to ban flat-fee contracting and to raise the compensation rate to $85 per hour with an annual trigger (for example, cost of living) to keep fees reasonable over time, Justice Shortchanged makes the case that there are no separation-of-powers issues to consider. The state supreme court has inherent power to ensure the effective administration of justice. Although the legislature holds the power to pass budgets, an expenditure policy that creates a financial conflict of interest in which the constitutional right to counsel is compromised cannot be allowed to stand.
The court should not fear that passing a court rule increasing pay would necessarily result in forcing the legislature to expend more money. The Wisconsin Legislature can, for instance, work to increase reliance on diversion programs that could move juvenile and adult defendants out of the formal criminal justice system and provide help with potential drug or other dependencies.
Similarly, lawmakers can change low-level, nonserious crimes to “citations” – in which the offender is given a ticket to pay a fine rather than being threatened with jail time, thus triggering the constitutional right to counsel. By shrinking the size of the criminal justice system, a state’s funding requirements under the right to counsel could be mitigated, even with increased rates of pay for attorneys.
Endnotes
1 The article is a synopsis of the report Justice Shortchanged. It is reprinted with permission of the Wisconsin Association of Criminal Defense Lawyers and the Sixth Amendment Center.
2 National Association of Criminal Defense Lawyers, Rationing Justice: the Underfunding of Assigned Counsel Systems (March 2013).
3 ABA, Ten Principles of a Public Defense Delivery System (Feb. 2002).
4 State Bar of Wisconsin, 2013 Economics of Practice Survey. Selected results were published in the November 2013 issue of the Wisconsin Lawyer.
5 Stateex rel. Stephen v. Smith, 747 P.2d 816 (Kan. 1987).
6 Wilsonv. State, 574 So. 2d 1338 (Miss. 1990).
7 Statev. Lynch, 796 P.2d 1150 (Okla. 1990).
8 N.Y.Cnty. Lawyers’ Ass’n v. State, 192 Misc. 2d 424, 425 (N.Y. Sup. Ct. 2002). The trial court (cited here) handed down its judgment in February 2003.
9 NY CLS Jud § 35.
10 Mayv. State, 672 So. 2d 1307, 1308 (Ala. Crim. App. 1993).
11 Wright v. Childree, 972 So. 2d 771 (Ala. 2006). This was a statutory analysis of a statute that provided: “Counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in the defense of his or her client, to be approved in advance by the trial court.” Ala. Code 1975 § 15-12-21.
12 Memo. to 1st Circuit Attorneys & County Commissioners, Dec. 16, 2014.
13 “If lawyers are unavailable or unwilling to represent indigent clients at the SPD rate of $40 per hour, or when clients do not qualify under existing SPD eligibility standards but nonetheless are unable financially to retain counsel, judges then must appoint lawyers at county expense.” See State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991).
14 ABA, The Missouri Project: A Study of the Missouri Defender System and Attorney Workload Standards. Prepared by RubinBrown LLP on behalf of the ABA Standing Committee on Legal Aid and Indigent Defendants.
15 Ferri v. Ackerman, 444 U.S. 193 (1979).
16 Polk County v. Dodson, 454 U.S. 312 (1981).
17 Wisconsin State Public Defender, 2013-2015 Biennial Budget Issue.
