The recent court of appeals decision, State v. Nhia Lee, which is now pending in the Wisconsin Supreme Court, highlights the challenges the State Public Defenders Office (SPD) has in finding counsel to take its conflict and overflow cases, especially in rural parts of the state. It also highlights the need for additional communication between the SPD and the circuit courts about efforts to appoint counsel.
To that end, the SPD has created uniform procedures for tracking and notifying circuit courts about the number of contacts (phone, email, in-person) made to try to find counsel. This information is provided via letter prior to scheduled preliminary hearings when the SPD has been unable to find counsel.
Lee also creates an opportunity for more conversations with judges about what can be done to encourage attorneys to take SPD cases in their counties, such as flexible scheduling, virtual hearings where appropriate, encouraging access to clients in the jail, and thinking critically about the need for cash bail.
Factors Affecting Lack of Counsel
The challenges in finding counsel stem from a number of sources.
In January 2020, when the SPD rate for private bar attorneys increased from $40 an hour – the lowest in the country – to $70 an hour, there were signs of improvement.
Then the pandemic hit. Although the number of cases charged in many counties decreased during the pandemic, in some counties the number of cases charged increased. Some private bar attorneys understandably chose not to take cases because of the risks and challenges associated with practicing criminal defense during a pandemic.
Although SPD staff attorneys continued to take a significant number of cases throughout the pandemic, litigating both in-person and virtually, the additional workload and stress has taken a toll, resulting in increased SPD staff turnover. And with the slowdown in the court system, attorney workloads are already saturated, which means they are unable to take on as many new SPD clients.
Rural Areas Affected Most
Of course, the temporary impact of the pandemic is only one of several factors affecting the SPD’s ability to find counsel. There is a general access to justice issue in rural parts of the state, as noted in this Wisconsin LawyerTM magazine column by State Bar Past President Kathy Brost.
The State Bar has put together a task force to address the issue. The task force found less than 40 percent of active lawyers in Wisconsin practice outside urban areas and most of those lawyers are over the age of 60.
This shortage has had a significant impact on the SPD’s ability to find counsel. That is why the SPD is continuing and expanding upon its efforts to encourage law students and new lawyers to practice indigent defense, especially in rural areas.
Katie York, Golden Gate University 2006, is with the State Public Defenders Office in Madison.
For years the SPD has worked with clinical programs from both the University of Wisconsin and Marquette law schools. The SPD is expanding its efforts outside the state to bring more criminal defense attorneys to Wisconsin, particularly staff attorneys and those taking SPD appointments. Not only does this help with the shortage of attorneys, it helps to bring in more diverse perspectives. As a profession we need lawyers interested in indigent defense.
Another significant factor affecting the SPD’s ability to find counsel is that the workload is difficult and the pay is lower than the private sector. It is emotionally draining and unrelenting work.
But it is also incredibly rewarding. The vast majority of people accused of committing crimes are indigent, and they need zealous advocates. They need a voice.
Innovation Is Needed
As a way of supporting indigent defenders in Wisconsin, the SPD has designated practice coordinators to help staff and private bar attorneys by sharing their specialized knowledge and expertise. Those practice areas include: family defense, immigration, juvenile, forensic sciences (abusive head trauma), racial disparities, and mental health.
Additionally, the SPD helps attorneys keep up-to-date with developments in the law with its On Point blog.
The pandemic has also allowed the SPD to rethink its training opportunities. The SPD will continue to offer training in-person, but it will also continue to expand its virtual training options, making SPD training accessible to practitioners all over the state.
Our goal is to ensure that all clients are provided zealous and effective representation regardless of the clients’ means.
This article was originally published on the State Bar of Wisconsin’s Criminal Law Section Blog. Visit the State Bar sections or the Criminal Law Section webpages to learn more about the benefits of section membership.