May 3, 2023 – Solo practitioner Michael Covey runs a tight ship. He has no administrative staff at his two-room office. He tries to keep overhead as low as possible while trying to support himself. But that requires him to work 50-60 hours most weeks.

That’s because the bulk of Covey’s practice involves taking appointed cases from the State Public Defender (SPD) Office, at $70 per hour. He’s not an SPD employee – and thus receives no state benefits, such as health insurance.

He’s a small business owner and an experienced criminal defense lawyer who takes some of the hardest cases – sexual assaults and homicides. At any one time, Covey is usually handling 80 cases, all around the state. He’s on the road 2-3 times per week.

“I do have private clients, but I make it a point to be more available for the public defenders’ office,” Covey said.

“I passionately believe that these people need attorneys. And they need good, experienced attorneys. So I have carved out a large portion of my practice just to do Class A, B, and C felony cases mainly in northern Wisconsin and Dane County.”

Overworked and Underpaid

The bulk of Michael Covey’s practice involves taking appointed cases from the State Public Defender (SPD) Office, at $70 per hour. He’s not an SPD employee – and thus receives no state benefits, such as health insurance.

In order to keep things afloat, Covey has to bill at least 40 hours per week. But he also has business administrative obligations he must attend to, such as filing legal documents, paying bills, and well, vacuuming and cleaning his office – which he does.

“I am literally vacuuming my own floors,” Covey said. “I do all the paperwork. I’m doing all the taxes, all the insurance and the billing, having confidential files shredded as needed. I’m doing all that by myself. So that’s how you get the extra 20 hours a week.”

He also has essential business costs, such as office rent, LexisNexis to do legal research, and legal malpractice insurance. “When you add in insurance and the books and other fees, and all of that kind of stuff, it can really add up,” said Covey.

Considering solo practitioners pay, on average, 35% in overhead costs, and other costs to operate a solo practice, such as health insurance, state and federal taxes, law student loan debt, continuing legal education, and monthly gas and car payments – that $70 per hour rate, adjusted for inflation since 2019, appears financially unsustainable.

That’s why Covey must bill at least 40 hours per week, while the average solo practitioner bills 25 hours per week, spending 21 hours on administrative duties.

Covey isn’t one for complaining. “I’ve made the choice to do this,” he said. “I’m good at it, and I love what I do. I don’t recommend other people do what I’m doing. And 20 years ago, I might have made a different path. But I love what I do.”

Still, even someone as passionate about indigent defense as Covey is bound to hit a wall. “I have a lot of job satisfaction, but I can’t keep this pace going forever,” he said.

$70 Rate Part of the Problem

Fewer private bar attorneys are choosing to take SPD appointments, in large part because the $70 rate of reimbursement​ is inadequate.

Adam Plotkin, the SPD’s legislative liaison, said the total number of certified private bar attorneys dropped by 18% between January 2019 and August 2022. That is despite the legislature’s increase, from $40 to $70 per hour, in the 2019-21 budget.

“This was due to a combination of several factors, including significant increases in the work associated with each case, the pandemic, and the increased difficulty in the practice of law,” Plotkin said. “But the rate of reimbursement is a key factor, especially given the disparity between the public defender rate and the county appointment rate.”

Attorneys appointed by the county, such as those serving as guardian ad litem, receive $100 per hour, under a rule established by the Wisconsin Supreme Court in 2018.

“To ensure the prompt appointment of qualified attorneys and to avoid state responsibilities and costs falling on the county, the SPD rate must be increased,” Plotkin said.

Breaking Point

The shortage of attorneys taking SPD appointed cases is one aspect of a criminal justice crisis that has been brewing for decades and has also led to a shortage of public defenders and prosecutors, putting Wisconsin’s system at a breaking point.

In addition, Wisconsin is still facing a significant criminal case backlog from the pandemic, and a shrinking number of public defenders, prosecutors, and private bar attorneys to help move those cases through the system is just gas on a fire that will continue burning unless Wisconsin makes significant investments in the system.

A Criminal Justice Coalition between the State Public Defender’s Office, the Wisconsin District Attorney’s Association, the Association of State Prosecutors, the Department of Justice, and the Director of State Court’s Office has aligned to request a significant investment at a time when Wisconsin is looking at a $7 billion budget surplus.

The request calls for raising​ starting pay for public defenders and prosecutors and increased pay progression to help those offices recruit and retain attorneys.

But the rate paid to private bar attorneys on SPD cases is another large gap that must be filled, as Plotkin noted. The coalition requests that the Wisconsin Legislature and Gov. Tony Evers increase the private bar rate for SPD appointed cases to $125 for in-court work, $100 per hour for out-of-court work, and $50 per hour for travel time.

Covey spends a lot of time driving to serve rural parts of the state, at the current rate of $25 per hour for travel time. “I’m all over the state – a lot of cases in Brown County, Shawano, Ashland, Waupaca, Monroe County, Sauk, Juneau, and Columbia.”

That’s because those rural parts of the state are experiencing major attorney shortages, causing delays and potential violations of the constitutional right to a speedy trial, as well as the constitutional right of effective assistance of counsel for indigent defendants.

Covey wishes more experienced criminal defense lawyers would take a few SPD appointed cases at a time, which could help alleviate the problem. But he understands why many decline. “It’s supporting a system that underpays us,” he said.