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.

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