We saw it coming. We knew prosecutors around the state were retiring. We knew pay was not keeping up and applications for open assistant district attorney (ADA) positions were dwindling. Dodge County District Attorney Kurt Klomberg and I even discussed that there was going to be a tipping point when a DA’s office in Wisconsin would implode because there were no prosecutors. But we didn’t think it would be our office.

We were a six-prosecutor DA office: the elected DA, four ADAs, and me – the county-employed managing attorney. We realized several years ago that three of us – half of our prosecutors – would likely retire within a few months of each other in 2022 or 2023. What we didn’t know at the time was that we wouldn’t have any ADA applicants when those retirements occurred. But that’s what happened. Three of us retired, a fourth prosecutor took an ADA job closer to home, and the fifth one was out of the office on family leave. That left only the elected DA to do the work of six attorneys – an impossibility.

The signs were there long ago. ADA and assistant state public defender pay has been less than other attorney salaries for years. In fact, I was hired 15 years ago when the non-lawyer office manager left and the then-DA realized Dodge County’s starting wage for office manager was higher than the state was paying ADAs. He created a new position of managing attorney to institute a professional management system in the office with the added value of having an additional prosecutor on board.

The pay gap between ADAs and county and municipal attorneys has only widened over the years to the point that district attorney and public defender offices cannot compete with other government attorney openings. In January, Dodge County advertised for an assistant corporation counsel with a minimum starting wage of $43.18 per hour and a DA office managing attorney at $50.23 per hour. At the same time the state was offering only $27.24 per hour for an attorney willing to work in the Dodge County DA office. In comparison, the John Deere plant in Dodge County is advertising factory starting wages of $23-$25 per hour.

It’s not surprising that there were zero ADA applicants while there were several for both the assistant corporation counsel and DA managing attorney positions. The successful assistant corporation counsel applicant, like the one hired a few months earlier in the Dodge County Corporation Counsel office, was an ADA from a neighboring county.

The problem isn’t going away. The Wisconsin Department of Administration reports that there are currently 53 unfilled ADA positions statewide, while the Office of the State Public Defender states there is a 13% vacancy rate in the ranks of their assistant state public defenders.

The Dodge County DA office is staffed by prosecutors again. The governor appointed a very competent Waukesha County ADA to the Dodge County DA position. She brought with her from Waukesha one full-time and one part-time ADA. But that’s like rearranging the deck chairs on the Titanic: Dodge County’s gain is Waukesha County’s loss.

The system needs to be fixed or more offices will implode. Please join with your State Bar of Wisconsin colleagues and let your legislators know the critical need to raise ADA and public defender pay.

» Cite this article: 96 Wis. Law. 64 (April 2023).