March 10, 2010 – Legislation that would increase the hourly rate for private bar state public defender appointments from $40 to $70 has received a tie vote in the Assembly’s Committee on Judiciary and Ethics.

Despite the 4-4 party-line vote on March 9, the committee’s chair, Rep. Gary Hebl, is expected to report the bill out of committee. Because the legislation includes the allocation of state funds, legislative leaders will likely refer it to the Joint Finance Committee, which would have to approve the bill before it could be scheduled for a full vote of the state Assembly.

The legislation - Assembly Bill 224 - would significantly increase the hourly rate for SPD private bar appointments if ultimately enacted into law. Then State Bar of Wisconsin President Diane Diel testified in support of the bill on behalf of the State Bar at a well-attended public hearing on June 2, 2009. The State Bar has long supported legislation such as AB 224, which was introduced earlier this session by Rep. Frederick Kessler.

To date, similar legislation has not been introduced in the state Senate. If ultimately passed by the Assembly, AB 224 would have to receive a public hearing and committee vote in the Senate before floor action in that house.

After last year’s public hearing, State Bar lobbying staff delivered to committee members the names of more than 130 private bar attorneys who support the legislation and could not attend the hearing, as well as more than 30 letters favoring the bill from State Bar members.

“Attorneys who accept public defender appointments play a fundamental role in maintaining one of our most important institutions – an honest, fair and effective criminal justice system. Wisconsin’s long-outdated hourly rates for private practice attorneys who take public defender cases makes it difficult for attorneys to accept State Public Defender (SPD) appointments and run a successful small business, resulting in delays and postponements of cases,” Diel told legislators at last year’s public hearing on AB 224.

During the 2006-2007 fiscal year, the Office of the State Public Defender appointed over 142,000 cases to attorneys in Wisconsin; nearly half of those cases were assigned to private practice lawyers. The hourly rate they receive has not been increased since 1992, and in fact was cut to its current level in 1995. The low rate makes it increasingly difficult to find lawyers to take SPD appointments.

In July 2008, Diel wrote to Gov. Doyle, urging him to take steps to improve compensation for defense attorneys who take SPD private bar cases in order to boost retention of experienced lawyers on the private bar list.

The State Bar’s Board of Governors has adopted a public policy position in favor of raising the private bar rate, stating that the State Bar “supports private practice lawyers’ compensation for public defender appointments at a rate that fairly compensates lawyers for their time. Rates of compensation should be equal to those set by the Wisconsin Supreme Court for court-appointed attorneys.”

The current Supreme Court rate for court-appointed attorneys is set by rule at $70 per hour, but this rate does not apply to SPD private bar appointments.

In a related development, on March 5 several Wisconsin attorneys filed a petition with the Supreme Court to increase the Supreme Court rate under SCR 81.02 to $80 per hour and to index the rate to the consumer price index. The petition would also provide that payment of an hourly rate less than the rate set forth in SCR 81.02(1) for legal services rendered pursuant to appointment by the SPD under Wis. Stat. section 977.08 is unreasonable. A supporting memorandum was also filed.

The attorneys who filed the petition includes several past presidents of the State Bar, including Patricia K. Ballman, Thomas J. Basting, Sr., Michelle A. Behnke, Gregory B. Conway, Franklyn M. Gimbel, Gerald M. O’Brien, G. Lane Ware, and John S. Skilton. Other attorneys named in the petition include Richard T. Becker, Robert H. Friebert, former Wisconsin Supreme Court Justice Janine P. Geske, former Milwaukee County District Attorney E. Michael McCann, Jose A. Olivieri, Timothy W. Burns and Dean A. Strang.

In another related development, on March 4, 2010, the Assembly gave final passage to legislation expanding financial eligibility for the appointment of a public defender, sending the bill to Gov. Jim Doyle for his consideration. If signed into law, that legislation will approve hiring 32 new SPD staff attorneys and 17 support positions to accommodate an anticipated increase in the State Public Defender’s caseload at an estimated annual cost of approximately $4.6 million.

Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated information on this legislation. The State Bar’s Government Relations team has also established a separate web page dedicated to this issue.

Related articles:

Assembly gives final passage to bill to expand public defender eligibility limits - March 5, 2010
State Bar testifies in support of increased private bar reimbursement - June 3, 2009
Lawyers testify in favor of bill boosting hourly rate for public defense appointments - June 2, 2009

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