Dec. 20, 2017 – A pending Wisconsin bill with bipartisan support would establish a pilot program to give private bar attorneys who accept at least 50 public defender appointments per year in rural counties up to $20,000 per year to pay law school debt.
The State Public Defender Board would conduct the Student Loan Payment Pilot Program, which would be funded with $500,000 over a two-year period. To be eligible, the attorney must “maintain a law practice that is either headquartered or performs a majority of its legal work in a county with a population of 25,000 or fewer residents.”
According to population data, 26 of Wisconsin’s 72 counties have populations under 25,000. Applications would be accepted on a rolling basis and all payments would be disbursed at the end of the year, “in the order that applications are received.”
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The Assembly Committee on Colleges & Universities held a public hearing last week on AB 567, one of several bills intended to attract professionals to rural parts of the state.
AB 567 also addresses the constitutional issues that can arise with attorney shortages, as all criminal defendants are entitled to effective representation by a lawyer.
And it would help lawyers pay down law school debt, a significant problem everywhere. According to one report, student loan debt has reached $1.3 trillion. Law school debt can easily surpass $100,000, which can burden law school graduates for decades.
State Bar of Wisconsin President Paul Swanson and others testified in support of the bill, which could encourage up to 12.5 attorneys to take public defender cases in rural counties in the next two years and perhaps more if the pilot proves successful.
“We hope this is a starting point,” said Sen. Patrick Testin (R-Stevens Point), who co-sponsored the bill introduced by Rep. Ron Tusler (R-Harrison) and Rep. Romaine Quinn (R-Rice Lake). Sen. Testin and Sen. Kathleen Vinehout (D-Alma) introduced a companion bill in the Senate, SB 467. Both bills have bipartisan support.
Sen. Testin said approximately 64 percent of attorneys practicing in Wisconsin are located in three counties: Milwaukee, Waukesha, and Dane counties. “That means that a little more than one-third of the state’s attorneys are practicing in the remaining 69 counties,” he said. “Twenty-three counties have 20 or fewer practicing attorneys.” A legislative memo noted that 15 counties have 10 or fewer lawyers.
At the same time, Testin noted, the public defender in Wisconsin is responsible for handling a caseload that is 125 percent above what the American Bar Association recommends. That puts a strain on them to provide effective representation, he said.
“By increasing the number of private attorneys in rural areas willing to take on public defender appointments, we will reduce the work pressure on our public defenders and keep the scales of justice even by ensuring that rural Wisconsinites have access to qualified defense attorneys,” Rep. Testin told the committee.
This legislative proposal comes as another proposal, pending before the Wisconsin Supreme Court, seeks to raise the hourly rate that private bar attorneys are paid for taking public defender appointments. The rate is currently $40 per hour, the worst pay rate in the country for private attorneys who handle public defender cases.
The Wisconsin Association of Criminal Defense Lawyers and other petitioners say that the $40 rate is inadequate to protect constitutional rights. The petition seeks a $60 increase to $100 per hour. By way of comparison, private bar attorneys who take federal criminal cases receive $132 per hour in non-capital cases and $185 per hour for capital cases.
Members of the committee seemed interested in the hourly rate issue. Rep. Terese Berceau (D-Madison) asked what would be more beneficial, raising the hourly rate for private bar attorneys to take public defender cases in general or student loan debt assistance. Kelli Thompson, head of the State Public Defender Office, said a rate increase is preferable, but prior attempts have failed.
“The number of attorneys who are willing to take our cases is going down in almost all parts of the state,” said Thompson, noting a decrease in more populous areas too.
A Starting Place
Thompson said the State Public Defender (SPD) handles approximately 135,000 to 145,000 cases per year. Private bar attorneys supplement the casework by taking overflow cases or cases the SPD cannot handle because of conflicts.
If private bar attorneys are not available, cases get delayed. “The justice system doesn’t work and everybody is negatively impacted,” Thompson told the committee.
“We are hoping that legislation such as this, while it won’t alleviate the issue, it will certainly help,” she said. “It will provide some assistance, certainly to newer attorneys who are willing to continue or take private bar cases for some loan reimbursement.”
Thompson said there are no private bar attorneys to take on cases in some counties. In those situations, they must ask attorneys to travel far distances. Travel time is reimbursed at $25 per hour.
Placing even 12 attorneys will have a huge impact, Thompson said, in counties where no private bar attorneys are available. If each one takes on 50 cases, that’s 600 cases.
“This is a significant issue for our agency, but also the entire criminal justice system,” Thompson said.
Kimberly Haas, executive director at Wisconsin Judicare, also testified in support of the bill. Judicare serves 33 northern Wisconsin counties and 11 federally recognized Indian tribes. Although Judicare does not do criminal cases, she says they often overlap.
“We see the impact daily,” said Haas, who also noted that recruiting private bar attorneys to take civil Judicare cases is also more challenging.
“Judicare has about 175 private attorneys who provide services at $50 per hour, down from nearly 400 when Judicare started 50 years ago,” Haas said. “In the last decade, it dropped significantly because it’s difficult to recruit individuals to come to northern Wisconsin. At the same time, the number of attorneys retiring is increasing significantly.”
Rep. Berceau noted other challenges in asking lawyers to move to rural areas since they can’t live on public defender cases alone - especially at $40 per hour. “Maybe there’s just not very much incentive in terms of how much we pay,” Berceau said.
“We see this as one piece of the puzzle in order to get the access to justice issue addressed,” noted Haas, but said much more can be done.
State Bar of Wisconsin President Paul Swanson said the State Bar is also taking action to highlight opportunities outside of Milwaukee and Madison. The State Bar’s Greater Wisconsin Initiative Bus Tour gives attorneys an opportunity to see rural parts of Wisconsin while making connections with lawyers and judges who work there. Swanson said that three attorneys have relocated to rural counties as a direct result.
“If we can place a couple of lawyers up there because they are getting this $20,000 stipend to pay off student loans, that’s going to make a difference,” Swanson said.
“They are going to take those cases. But they are also going to practice in a small town, and they may become pillars of that community. They may become judges, they may run for school board, city council. These lawyers are necessary in small towns.”
Adam Plotkin, SPD’s legislative liaison, said about 23 other states use incentives to encourage attorneys to practice in rural areas of the state, including South Dakota.
Under a law South Dakota passed in 2013, lawyers can receive a $12,000 annual subsidy – 90 percent of the cost to attend South Dakota Law School at the time – to pay law school loans if they commit to practice five years in a rural community.
Those who support the Wisconsin bill hope it will open doors to other changes in Wisconsin’s criminal justice system, including higher pay for public defenders and prosecutors. Under federal law, public interest and government lawyers can receive loan forgiveness after 10 years of service, but turnover remains a challenge.
“The problem is that there is no pay progression,” said Anthony Cotton, a defense attorney and president of the Wisconsin Association of Criminal Defense Lawyers.
“If you are looking big picture at problems with the criminal justice system, you should absolutely raise the staff rate of pay for public defenders and prosecutors,” Cotton said.
“If you are the victim of a crime, you want an experienced prosecutor. Similarly, if you are falsely accused of a crime, you want an experienced attorney representing you.
“You are losing high-quality talent at the public defenders’ office and the district attorneys’ office because there isn’t pay progression,” Cotton told lawmakers.
Vicky Selkowe, director of legislative advocacy for Legal Action of Wisconsin, hopes lawmakers will pass the bill and look at civil legal services too.
“We appreciate this bill as a piece of the broader solution,” said Selkowe, noting that Legal Action of Wisconsin worked more than 11,000 cases in 2016, but declined 12,000 individuals because it did not have enough resources to take them on.
She said public interest lawyers have low salaries and staggering amounts of debt, too, but providing more resources can help them help more Wisconsin citizens.