Vol. 82, No. 7, July 2009
by George C. Brown, executive director
In Wisconsin, the lawyers who accept appointment by the Office of the State Public Defender to defend Wisconsin’s poorest residents against criminal charges are paid $40 per hour or only about 20 percent of what lawyers charge on average. Often, these lawyers must wait, sometimes up to six months, to be paid because the state refuses to provide enough funding to support the program. So these vastly underpaid lawyers, representing the poorest of the poor, must carry the state, and they have been for years.
In June, the Wisconsin State Assembly’s Judiciary Committee held a public hearing on AB 224, a bill introduced by state Rep. Fred Kessler (D-Milw.) to raise the hourly rate for private attorneys who take these public defender appointments from the current $40 per hour to $70 per hour. The current rate was set by the Legislature in 1995, when it was reduced from $50 per hour to $40. The current $40 is only $5 more per hour than the $35 per hour set when the Wisconsin Public Defender program began in 1978.
While the increase to $70 per hour may seem huge, that $70 is less than the original $35-per-hour rate adjusted for inflation since the Public Defender Program began, which is $115. This $115 is about the same average hourly rate that attorneys charged in 1992, according to the State Bar’s Economics of Practice Survey. The same survey found that in 2007, Wisconsin lawyers charged an average of $188 per hour. That hourly rate is, in fact, about $37 per hour less than the State of Wisconsin pays video editors. This is because video editors, and most other private-sector contractors with the state, are paid market rates rather than an amount set by statute.
So $70 is a bargain by comparison. Of course, even at $70 per hour, average lawyers will have a hard time covering their overhead, let alone paying themselves a living wage.
During the public hearing called by Assembly Judiciary and Ethics Committee Chair Gary Hebl (D-Sun Prairie), State Bar President Diane Diel, State Public Defender Nick Chiarkas, and Assigned Counsel Division Administrator Deb Smith all spoke in favor of the bill. The most moving testimony was given by the lawyers who take these cases, of having to dig into their retirement savings to pay bills because the state did not timely pay its own bills, of closing offices to work from home because the current rate could not support the overhead. Two telling questions were raised. State Rep. David Cullen (D-Milw.) asked if there had been discussion about suing the state for ineffective assistance of counsel. Attorney Peter Rotter, Wausau, asked the legislators why his private- pay clients, who pay him $200 per hour, should subsidize the state because it refuses to reimburse a reasonable rate for criminal defense.