March 18, 2015 – The Governor’s proposed 2015-17 biennial state budget includes funds for a pilot “conflict defender office” to keep more public defender cases in-house and reduce the number of cases appointed to private bar attorneys when conflicts arise.

The State Public Defender (SPD), which currently employs about 350 full-time attorneys in 39 offices, represents indigent defendants in criminal cases and some civil matters.

The proposed two-year SPD budget includes $1.5 million to create a conflict defender office in Milwaukee County as part of a two-year pilot program.

Six full-time “conflict defenders” would represent indigent defendants in Milwaukee, Waukesha, and Racine counties on conflict cases that would normally go to private bar attorneys at $40 per hour. In addition, the proposed SPD budget, about a 4 percent increase, includes funds to support an additional 26 public defenders in SPD offices.

As a result of these measures, the proposed budget reduces the estimated funding necessary to pay private bar attorneys by $6.7 million over a two-year period.

“The reduction in funding is associated with estimated savings from having a greater number of SPD cases litigated by SPD staff, rather than private bar attorneys,” the proposed 2015-17 budget states.

The state would still provide $24.5 million annually for private bar reimbursements in the next two years. But the number of private bar appointments would likely dip as a percentage of all indigent defense cases, and fall even more significantly if additional conflict defender offices are added when the two-year pilot program is complete.

In FY 2014, the SPD appointed almost 40 percent of its 136,000-plus caseload to private bar attorneys based on conflicts that barred SPD representation. According to the SPD, the private bar took 54,211 conflict cases in 2014.

The Conflict Defender Office

Adam Plotkin, the SPD’s legislative liaison, says the two-year conflict defender pilot program would require the SPD to establish a conflict defender office in Milwaukee that is independent and insulated from other SPD offices in those counties.

“We have a number of people trying to put together how that would be structured,” Plotkin said. “We have the ability to insulate offices electronically. For instance, the Milwaukee trial office can’t see cases from the Waukesha office, and vice versa. But we would have to ensure that all aspects of that office would remain separate and apart.”

Plotkin says the concept of a conflict defender office isn’t new, and a similar legislative proposal gained steam in 2001 but ultimately failed. Even if Wisconsin moves forward with the proposal, he said private bar appointments will always be necessary.

“From our point of view, eliminating the private bar is not ethically feasible. There’s always going to be a need for a private bar component of indigent defense,” he said.

“Frankly we have had almost four decades of really good practice with our hybrid system, using public defenders and the private bar,” Plotkin said. “We are a national leader and are often called upon to provide information on how our system operates.”

Plotkin says the private bar is voicing the biggest concern about this proposed change, and only time will tell whether a conflict defender system is right for Wisconsin.

Private Bar Concern

Milwaukee criminal lawyer Anthony Cotton is skeptical of any system that increases public defender caseloads and strains the ability to provide effective representation.

“Reasonable minds can differ about whether conflict offices are a good thing. But anytime you require staff attorneys to carry such high caseloads, it creates a problem for the client,” said Cotton, president-elect of the Wisconsin Association of Criminal Defense Lawyers, a group of 400 public and private defense attorneys.

He says that in theory, a conflict defender system will save the state money by giving more cases to salaried public defenders. But increasing public defender caseloads does nothing to improve the quality of representation in Wisconsin, Cotton says.

“It’s not about the quality of public defenders, because we have very good ones. It’s a caseload problem. No attorney should be asked to carry 200 cases a year,” Cotton said.

Clients can’t get the kind of attention, advice, input, and guidance they need when their public defender is stretched too thin, he says. The more cases are kept internally at SPD, the less time attorneys have to devote adequate time to the representation.

“It’s not a big picture solution to say, ‘here’s a pool of money and here’s our pool of defendants. Now let’s see how we can fit the two together,’” Cotton said. “When you have overworked public defenders handling 30 cases per day, that’s going to create internal delays that back up judges and clog the court system. It’s not efficient.”

When lawyers have adequate time to their prepare cases, he says, motion and trial practice is more focused and judges can dispose of cases more efficiently.

Private Bar Compensation Rate

Cotton envisions a system with reduced public defender caseloads and higher rates for private bar attorneys who take SPD appointments. In the long-run, he says, Wisconsin’s criminal court system would be more efficient by keeping veteran attorneys in the mix.

But the current compensation rate for private bar attorneys who take SPD appointments is $40 per hour ($25 per hour for travel time), and that rate applies regardless of someone’s level of experience, the type of crime, or the complexity of the case.

According to a 2013 report,¹ Wisconsin has the lowest private bar compensation rate in the country. The report states that in Wisconsin, “the hourly rate for assigned counsel has only increased by $5 in the last 35 years" and the $40 rate was set 20 years ago, in 1995. 

The average compensation for private bar attorneys taking indigent defense cases among 30 states that use private bar attorneys is $65 per hour, the report notes.

On the other end of the spectrum, attorneys who represent indigent defendants in federal court receive $125 per hour, according to the report. However, compensation amounts are capped by case – $9,700 for non-capital felonies and $2,800 for misdemeanors.

The $40 rate may be reasonable for new lawyers taking minor misdemeanors, Cotton says, but what about cases requiring a complex defense, such as shaken baby cases?

“If you are asking somebody to take on a shaken baby homicide or a high-level sexual assault, it’s inappropriate to treat those lawyers the same,” Cotton said. “You don’t see the truly experienced lawyers willing to take on high-level representation anymore.”

Cotton notes that expert witnesses, such as doctors, normally receive their hourly rates or a slightly reduced fee for their in-court services. “The lawyer, who is structuring the whole defense, is so worthless in this equation. It’s unconscionable in my mind.”

In addition, if only inexperienced lawyers are taking SPD appointments, it will take longer for them to do the work by burning time to learn points of law, Cotton says.

Cotton, of Kuchler & Cotton S.C. in Waukesha, still takes a few SPD appointments per year. He says his firm can contribute to the high quality representation that defendants deserve, and he believes every defense lawyer has a duty to take indigent defense cases on occasion.

But a system that actually incentivizes experienced lawyers to take SPD appointments would help the system as a whole, Cotton says. He says a staggered pay rate, say $20 to $120 per hour based on the type of case, could be a good long-term solution.

“It makes sense to stagger compensation rates based on the difficulty of the work,” Cotton said. “More experienced and high-quality lawyers would take those cases and improve the quality and efficiency of Wisconsin’s criminal court system.”

The State Bar of Wisconsin has long supported fair compensation for appointed lawyers to safeguard the constitutional rights of individuals accused of crimes. 

A 2009 bill would have increased the compensation rate for SPD appointments to $70, but the bill died. A 2013 bill to increase the private bar rate to $75 per hour also failed.

Endnotes

¹ National Association of Criminal Defense Lawyers, Gideon at 50:  A Three-Part Examination of Indigent Defense in America, Part I – Rationing Justice: The Underfunding of Assigned Counsel Systems (March 2013).