May 16, 2018 – A year ago, defense lawyers and other attorneys asked the Wisconsin Supreme Court to address a constitutional crisis: the hourly rate that private bar attorneys are paid to take appointments from the State Public Defender (SPD). Now, they'll get their day in court.
Today, the supreme court will hear petition 17-06. At $40 per hour, which is $5 more than it was in 1978 (40 years ago), the Wisconsin Association of Criminal Defense Lawyers (WACDL) and others say this rate, the lowest in the country for appointed cases, makes them financially unsustainable to take.
“The lawyers that do take them are quite often brand new, inexperienced, or economically incentivized to not do thorough work, to provide effective assistance of counsel,” says John Birdsall, who filed the petition on behalf of WACDL.
Birdsall, a defense lawyer in Milwaukee and a former president of WACDL, says the situation has now reached the level of “constitutional crisis” because Wisconsin, like all states, are required to provide effective counsel to indigent criminal defendants.
In this video, Birdsall gives a basic overview of what the petition is requesting, including rule changes that would increase the hourly rate for court-appointed cases, such as appointments for guardians ad litem (currently $70 per hour), to $100 per hour.
That same hourly rate would apply to SPD appointments to private bar attorneys, under petition 17-06. The Wisconsin Supreme Court is holding a public hearing today (May 16) on the petition, which the State Bar of Wisconsin’s Board of Governors supports.
Birdsall notes that the hourly rate paid to private bar attorneys taking SPD cases is set by statute, but the Wisconsin Legislature has not changed the rate in four decades.
“We are sort of done waiting, and we are going to the court as the only avenue for relief at this point,” said Birdsall, who noted that WACDL has presented the court with two studies on the problem that Wisconsin’s SPD pay rate presents for the court system.
In April, WACDL submitted a report from the Sixth Amendment Center, “Justice Shortchanged Part II: Assigned Counsel Compensation in Wisconsin,” which concludes that “unreasonable compensation rates and flat fee contractual arrangements to represent the poor in criminal courts are constitutional violations because each pits the attorney’s financial well-being against the client’s right to conflict-free representation.”
Petition 17-06 has drawn numerous comments from attorneys and attorney-groups, both in favor and in opposition. Check WisBar.org for coverage of the public hearing, which takes place at 9:30 a.m. today (May 16) and is available on Wisconsin Eye.
Country’s Lowest Pay Rate for SPD Appointments Equals Constitutional Crisis– InsideTrack (May 3, 2017)