Lawyers testify in favor of bill boosting hourly rate for public
defense appointments
By Alex
De Grand, Legal Writer, State Bar of Wisconsin
June 2, 2009 – A bill introduced in the Wisconsin Assembly
aims to raise the hourly rate paid to private attorneys who accept cases
from the State Public Defender from $40 to $70 an hour.
Lawyers lined up at the state capitol June 2 to offer testimony in
support of Assembly Bill 224 before the Committee on Judiciary and
Ethics. A law firm is a small business with overhead costs that continue
to rise whereas the rate for indigent defense has been frozen by statute
since 1995, the committee learned.
“I sit before you today as a solo practitioner able to tell you
that in a streamlined operation with one part-time paralegal, my
overhead costs run roughly $70 an hour,” said State Bar President
Diane Diel. “You can do the math on where that leaves me $30 in
the hole if I were to take $40 an hour appointment cases.”
Diel and Past State Bar President Gerry Mowris emphasized that this
bill is about small businesses. “The typical Wisconsin lawyer is a
small business owner,” Diel stated in prepared testimony.
“In fact, of the approximately 3,800 law firms in Wisconsin, 92
percent or about 3,500 are small businesses with five or fewer lawyers.
Fully 70 percent or 2,657 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,” Diel continued.
“Wisconsin lawyers provide employment, pay taxes, and support
other businesses around the state.”
Mowris added that traditionally the law firm accepted an appointment
so that a young lawyer could gain experience under the supervision of an
older attorney. This critical mentorship that cultivates the next
generation of practitioners is impractical when the appointment
represents such a tremendous loss of money. This is a loss to the
profession and the society it serves, he said.
The State Bar’s Board of Governors has a long-standing public
policy in support of raising the SPD rate to a level that fairly
compensates lawyers for their time and is equal to those set by the
Wisconsin Supreme Court for court-appointed attorneys.
‘It is the right thing to do’
Private practitioners explained that they continue to accept public
defense cases because they believe they have an obligation to ensure the
fairness of the criminal justice system.
Madison attorney Joanne Keane explained that she is trained for the
far more lucrative field of patent law. “But I choose to do public
defender work because it is the right thing to do,” she said.
“’Liberty and justice for all,” Keane said.
“’It’s as simple as that. And if those words
don’t mean anything, then, frankly, I don’t know what
does.”
But the attorneys said that there are practical limits to what they
can do.
“I am a charitable, generous and committed individual,”
said Wausau attorney Peter Rotter. “It is my obligation to give
back to society, and I do so. But, that doesn’t make it acceptable
for the state to take advantage of me.”
Rotter said he has resorted to cost-saving measures used by other
lawyers. He has one person on his staff, but “I don’t pay
well, and I can’t offer health benefits.” Rotter said his
other clients charged at his customary rate effectively subsidize his
public defense work.
“That is no way to run a system of justice,” Rotter
said.
“Why hasn’t this [rate] been raised already?” asked
Madison lawyer Erik Guenther, a member of the Wisconsin Association of
Criminal Defense Lawyers board of directors. “Well, this involves
compensation for criminal defense lawyers. People don’t like
criminal defense lawyers… And the reason for that is when
I’m on TV, I’m usually standing next to somebody who
everybody has just saw his mug shot. And sometimes they are in an orange
jumpsuit.”
But Guenther said that the system is not perfect and he asked
lawmakers to consider the importance of a defendant’s due process
rights, despite current popular hostility.
“It’s been a long time since we read To Kill A
Mockingbird,” he said. “Instead, we have Cops
and Law and Order.”
Effect on the courts
Larry Peterson, president of the Wisconsin State Public Defender
Association, explained that his members work with the private bar
because “the system has to be healthy across the board in order to
produce healthy results.”
If lawyers in private practice are discouraged from stepping forward
to accept appointments from the SPD, Peterson said this can have serious
consequences for finding conflict counsel. Victims are among those
affected by delays created by an inability to find willing and competent
legal counsel, added Deb Smith, the director of the SPD Assigned Counsel
Division.
Preempt a lawsuit?
The bill’s sponsor, Rep. Frederick Kessler (D-Milwaukee), said
that part of his motivation to seek a rate increase was to head off a
legal challenge to the fairness of Wisconsin’s indigent defense
system.
“I introduced this bill because I am appalled at the fact that
we have continued to pay people at an hourly rate that was only $5 more
than the hourly rate established in 1978,” Kessler said. “I
understand the nature of the financial crisis the state is facing, but I
think we are in a situation where at some point somebody is going to
challenge this $40 an hour rate as not providing adequate counsel and
adequate compensation to counsel to be able to do that. And we are going
to be ordered by the state or federal court somewhere to say,
‘I’m sorry. We have to pay a reasonable rate to attorneys so
that we can ensure adequate representation.”
Kessler said that he would have actually preferred a rate even higher
than that proposed in his bill. Most Wisconsin counties pay private
attorneys at the state supreme court rate of $70 per hour to take court
appointments or serve as guardians ad litem, according to testimony from
the SPD.
Other professionals who contract with the state commonly have their
compensation set by market demand, the SPD noted. The state procurement
hourly rate for a video editor is $225 and a photographer’s rate
is $112 to $200 an hour.
· More information about the SPD Private
Bar