Wisconsin
Lawyer
Vol. 81, No. 10, October
2008
Editorial
Public Defenders Deserve Fair Pay
State Bar President Diane Diel and
State Public Defender Nick Chiarkas make their case for increasing the
rate paid to private bar attorneys who accept public defender
appointments from $40 per hour to $70 per hour.
Attorneys Can’t Run Their Small Businesses When Paid at a Low
Hourly Rate
If the state raised outdated private
bar rates to an acceptable level, more attorneys who operate small
businesses in Wisconsin would be encouraged to take these difficult
cases for the state. Delays in our court system would decrease.
by Diane S. Diel
Approximately 1,100 State Bar members are currently on the State Public
Defender’s list of attorneys accepting SPD appointments.
These
attorneys deserve more than only admiration and thanks for stepping up
to the plate to defend poor people. They deserve to be fairly and justly
compensated for their work.
Public defenders play a fundamental role in maintaining one of our most
important institutions – an honest, fair, and effective criminal
justice system. During the 2006-2007 fiscal year, the office of the
State Public Defender appointed more than 142,000 cases to Wisconsin
attorneys; nearly half of those cases were assigned to private practice
lawyers.
Wisconsin’s long-outdated hourly rates for private practice
attorneys who take public defender cases make it nearly impossible for
attorneys to accept SPD appointments and meet reasonable overhead costs
for their law firms. The result is that fewer lawyers take SPD
appointments, and the result of that situation is delay and postponement
of cases in the legal system.
The typical Wisconsin lawyer is a small business owner. in fact, of the
approximately 3,700 law firms in Wisconsin, 92 percent (or 3,400) are
small businesses with five or fewer lawyers. Fully 70 percent (or 2,580)
of those law firms are solo practices consisting of only one lawyer.
The small businesses Wisconsin lawyers operate are woven into the
fabric of Wisconsin’s economic life. Wisconsin lawyers provide
employment, pay taxes, and support other businesses statewide.
Since 1995, the hourly rate for private attorneys who take SPD
appointments has been frozen by statute at $40 per hour. It is
impossible for an attorney to run a successful small business when paid
at a rate so low it does not cover overhead. Most people would be
hard-pressed to identify any group of professional small-business owners
who are paid such a low hourly rate.
The unreasonably low and outdated private bar rate is unacceptable. The
rate needs to be raised significantly in the next state budget.
When Wisconsin created the SPD as an agency 30 years ago, the hourly
rate for private bar attorneys was set at $35 for out-of-court work,
which accounts for the vast majority of time billed to the SPD. if this
1978 rate were indexed for inflation, it would now be more than $118 per
hour. (The Legislature increased the rate slightly – once –
in 1992 to $50 for in-court work and $40 for out-of-court work. The 1995
state budget bill cut that rate back to the current rate, and it has
remained frozen since.)
By comparison, the state currently pays the following rates for other
professional work: video editors– $225/hour; photographers –
$112 to $200/hour; and occupational safety consultants – $135 to
$145/hour.
Other government entities appoint attorneys at higher hourly rates.
most Wisconsin counties pay private attorneys the $70-per-hour supreme
court rate to take court appointments. Defense attorneys are paid $95
per hour for federal cases.
The unreasonably low private bar rate authorized by statute continues
to have a number of dire effects. Attoneys leaving the SPD appointment
lists have cited the low hourly rate as their primary reason for
leaving.
Most seriously, judges confirm that there are areas of the state where
the difficulty in making appointments to the private bar has fiscal and
operational consequences for the justice system. The delays and
postponements that occur because no private bar attorney is available
inconvenience victims and police officers and result in more and longer
county jail stays.
If the state raised these outdated private bar rates to an acceptable
level, more attorneys and more experienced attorneys would be encouraged
to take on these difficult cases. our court system would run more
efficiently and there would be fewer delays.
Raising the SPD private bar rate to at least a rate comparable with the
supreme court rate will enable more attorneys to accept SPD appointments
and successfully manage their firms’ businesses. This summer, the
State Bar asked members to call or write the governor and legislators to
educate them about this issue. We will continue to press this issue in
the coming months as the administration prepares the next state budget.
Successfully raising the private bar rates will only happen with your
active involvement and support.
Our Duty to Protect “Justice for All” Demands Adequate
Funding
In the United States, before the
government can take away a person’s liberty, it must first provide
the
person with a fair process. Public defenders work to ensure that poor
people receive fair treatment and a just result, and they ought to
receive fair compensation for doing so.
by Nicholas L. Chiarkas
Even if not everyone agrees that people who have less in life should
have more in law, at least we should agree that those who have less in
life should not also have less in law. indeed, everything we hold dear
as Americans is based on the ideals of equality and fairness, especially
in the blind-folded eyes of justice.
“A good and faithful judge,” said Horace, “prefers
what is right to what is expedient.” And what is right is a fair
and just process. Defense counsel does not stand with the accused to
simply satisfy some do-gooder’s sense of an archaic requirement
that needs to be checked off before one gets on with the business of the
court. it is the role of defense counsel to examine the process and the
facts closely enough to detect defects; it is not “justice”
if it arrives at the end of an assembly belt – no matter how
swiftly – with defects. To do this the defense attorney (public
defender) must be compensated at an amount that reflects our commitment
to justice for all … an amount that is at least the Wisconsin
Supreme Court’s stated minimum of $70 per hour.
Justice, in the criminal sphere, consists of the alleged wrongdoer
receiving what is due him or her, both in process and in punishment. And
it is the process, not the punishment, that distinguishes just
governments. in the United States, we have agreed that before the
government can take away a person’s liberty, it must first provide
the person with a fair process. This process is not a gift –
rather, it is owed to us, it is due us. That is the simple meaning of
due process. it is what this process includes that makes it complex. So
complex, that when ever the government seeks to remove a citizen’s
liberty, the government is represented by an attorney (a prosecutor).
Justice therefore dictates that throughout this complex process, the
citizen facing the loss of liberty also should be represented by an
attorney. our Pledge of Allegiance promises in its last three words:
“…justice for all.” Consequently, citizens too poor
to afford an attorney must be provided an attorney by the government.
Martin Luther King Jr. said, “injustice anywhere is a threat to
justice everywhere.” every day in Wisconsin, public defenders and
their private bar colleagues are called on to represent our poorest
citizens; not to satisfy a technicality, but to protect “justice
for all.”
Wisconsin has a growing criminal justice problem – both in
perception and in reality. Defense services are under-funded. Funding
is
clearly inadequate for defense services, and this robs indigent clients
of proper representation. The statutory rate of $40 per hour for our
private bar discourages more lawyers from accepting SPD cases by simply
not paying lawyers enough for the work they must perform to adequately
represent poor clients.
The role of defense counsel is not only to help the system move along;
it is not to save time, or money, or to improve efficiency. it is the
role of defense counsel to help the system move to a just and correct
conclusion and to take the time required to do that. it is the role of
defense counsel to help the system become more effective and respected
by building confidence that a just and correct conclusion will be
achieved. it is the primary role of defense counsel to think of clients
as people, not cases; it is to make certain that the client is being
afforded what was promised to all of us – justice. Justice for all
is justice without exception. if Wisconsin can only afford justice for
some or justice with a wink, then what is provided is not justice at
all.
Public defenders are on the side of poor people. We do not live or work
under the delusion that our existence is evidence of our
government’s commitment to equal and fair justice for all of its
citizens.
We instead know that we must fight for every inch and every penny of
fairness on behalf of the accused-poor. And so, when the government
wants to forfeit a person’s liberty, a public defender or her
private bar colleague is placed beside that citizen who can’t
afford to hire an attorney. However, the defender will not have a police
force to investigate the charges. She will not have crime labs, parity
of resources for experts, or modern technology. She will not have the
funding for these things. And, she will not have public support. Because
that defender is requiring the government to provide the process due to
the accused before it takes his or her liberty, the defender might be
defamed (as in the Boston nanny trial and the recent Wisconsin Supreme
Court race). A defender’s willingness to fight for the
Constitution carries as much risk today as it did in 1776.
Outside lawyers representing the state’s interests or public
officials are paid at a market rate. The Wisconsin Supreme Court has set
a modest standard for a rate that should be paid when courts appoint
lawyers to act in the interest of justice or pursuant to statute. That
rate is $70 per hour, and it has been that amount for more than a
decade. only attorneys representing our poorest citizens facing a loss
of liberty are paid less – $40 per hour. At the very least, this
low rate discredits our commitment to justice and fairness for all. At
the worst, it opens the door to racial disparity, tolerance of wrongful
convictions, and disrespect for the justice system.
It is time for all people (especially members of the State Bar) to
stand up for a fair and effective justice system, for the due process
owed to those who are swept into the system, and for the lawyers who
represent our poorest citizens. it is time for all of us to make a call,
write a letter, or speak to the decision makers and let them know that
those attorneys who do the hard work of protecting the rights of the
accused should get at least the modest rate set by the supreme court.
Wisconsin Lawyer
