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    Inside the Bar: Let’s Talk

    The entire state assembly and half of the state senate must stand for election this fall, making this is an opportune time to talk to candidates in your area about raising the rate the state pays to private practice lawyers to defend indigent people.

    George C. Brown

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 83, No. 7, July 2010

    George BrownLet’s face it, we all know that the $40 per hour that the state pays private practice lawyers to defend indigent people is ridiculously low. But with the end of the legislative session, the bill, AB 224, authored by State Rep. Fred Kessler, Milwaukee, to raise the rate from $40 to $70 per hour is dead until the next session, which doesn’t begin until January 2011.

    Between now and then, however, a very significant event takes place. The entire state assembly and half the state senate must stand for election. This year, a near-record number of sitting members of both houses have chosen not to run for reelection. Some are retiring, some want to run for a different seat, one was elected judge, and one (former State Bar president Gary Sherman) was appointed to the Wisconsin Court of Appeals.

    This means that you have an opportunity to discuss the issue with the candidates in your area who are running for office. As one former state senator said, this is the time that legislators or would-be legislators really will listen to you. You can talk about your own experiences. That is always best. If you do not take these cases yourself, you can talk with the candidates on behalf of your colleagues who do. To give that discussion some context, let me provide you with some basic information.

    According to the office of the State Public Defender (SPD), “When the SPD was created as an agency in 1978, the private bar rate was set at $35 per hour for in-court and out-of-court work. If this 1978 rate were indexed for inflation, it would now be over $118 per hour. The legislature increased the rate slightly in 1992 to $50 for in-court work and $40 for out-of-court work. The 1995 state budget bill cut that rate back to the current rate of $40 per hour and it has remained frozen since then.” So today, the rate for both in-court and out-of-court work is $40 per hour with out-of-county travel reimbursed at $25 per hour.

    Let’s do some other comparisons. In 1978, a Chevy Malibu cost about $3,700. Today, a mid-level version of the same car costs more than $23,000. Today, a 10-year-old Malibu with 125,000 miles on it might cost $3,700 if it was in excellent condition.

    In 1978, state legislators were paid $17,843, with a $30 per diem for legislators living outside of Dane County. In 2008, legislators’ salaries were set at $49,943 with an $88 per diem.

    According to the census bureau, the cost of a new home in 1978 was $55,700. At the end of 2009, even with the recent great recession, the national median price for a new home was more than $216,000.

    I could go on, but you get the picture. Lawyers defending indigent individuals accused of crimes are the only professionals or service providers whose state-paid reimbursement is set by statute at a fixed dollar amount per hour. All other rates are set at average market rate. According to the State Bar 2008 Economics of Practice survey, the median standard hourly rate charged by attorneys in private practice was $180. This, of course, must cover the cost of support staff, computers, office space and utilities, payroll taxes, the full cost of Social Security for the lawyer, malpractice and other insurance, and so on. By the way, legislators pay none of these costs out of their own pocket for their legislative offices.

    So, I encourage you to have a discussion with the candidates in your area. They might find it interesting.