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    Editorial: Public Defenders Deserve Fair Pay

    State public defender Nick Chiarkas and State Bar president Diane Diel make their case for increasing the rate paid to private bar attorneys who accept public defender appointments from $40 per hour to $70 per hour.

    Nick Chiarkas

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 10, October 2008


    Public Defenders Deserve Fair Pay

    State Bar President Diane Diel and State Public Defender Nick Chiarkas make their case for increasing the rate paid to private bar attorneys who accept public defender appointments from $40 per hour to $70 per hour.

    Attorneys Can’t Run Their Small Businesses When Paid at a Low Hourly Rate

    If the state raised outdated private bar rates to an acceptable level, more attorneys who operate small businesses in Wisconsin would be encouraged to take these difficult cases for the state. Delays in our court system would decrease.

    by Diane S. Diel

    Approximately 1,100 State Bar members are currently on the State Public Defender’s list of attorneys accepting SPD appointments. These attorneys deserve more than only admiration and thanks for stepping up to the plate to defend poor people. They deserve to be fairly and justly compensated for their work.

    Public defenders play a fundamental role in maintaining one of our most important institutions – an honest, fair, and effective criminal justice system. During the 2006-2007 fiscal year, the office of the State Public Defender appointed more than 142,000 cases to Wisconsin attorneys; nearly half of those cases were assigned to private practice lawyers.

    Wisconsin’s long-outdated hourly rates for private practice attorneys who take public defender cases make it nearly impossible for attorneys to accept SPD appointments and meet reasonable overhead costs for their law firms. The result is that fewer lawyers take SPD appointments, and the result of that situation is delay and postponement of cases in the legal system.

    The typical Wisconsin lawyer is a small business owner. in fact, of the approximately 3,700 law firms in Wisconsin, 92 percent (or 3,400) are small businesses with five or fewer lawyers. Fully 70 percent (or 2,580) 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. Wisconsin lawyers provide employment, pay taxes, and support other businesses statewide.

    Diane S. Diel

    com ddiel diellaw Diane S. Diel, U.W. 1976, is State Bar president.

    Since 1995, the hourly rate for private attorneys who take SPD appointments has been frozen by statute at $40 per hour. It is impossible for an attorney to run a successful small business when paid at a rate so low it does not cover overhead. Most people would be hard-pressed to identify any group of professional small-business owners who are paid such a low hourly rate.

    The unreasonably low and outdated private bar rate is unacceptable. The rate needs to be raised significantly in the next state budget.

    When Wisconsin created the SPD as an agency 30 years ago, the hourly rate for private bar attorneys was set at $35 for out-of-court work, which accounts for the vast majority of time billed to the SPD. if this 1978 rate were indexed for inflation, it would now be more than $118 per hour. (The Legislature increased the rate slightly – once – 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, and it has remained frozen since.)

    By comparison, the state currently pays the following rates for other professional work: video editors– $225/hour; photographers – $112 to $200/hour; and occupational safety consultants – $135 to $145/hour.

    Other government entities appoint attorneys at higher hourly rates. most Wisconsin counties pay private attorneys the $70-per-hour supreme court rate to take court appointments. Defense attorneys are paid $95 per hour for federal cases.

    The unreasonably low private bar rate authorized by statute continues to have a number of dire effects. Attoneys leaving the SPD appointment lists have cited the low hourly rate as their primary reason for leaving.

    Most seriously, judges confirm that there are areas of the state where the difficulty in making appointments to the private bar has fiscal and operational consequences for the justice system. The delays and postponements that occur because no private bar attorney is available inconvenience victims and police officers and result in more and longer county jail stays.

    If the state raised these outdated private bar rates to an acceptable level, more attorneys and more experienced attorneys would be encouraged to take on these difficult cases. our court system would run more efficiently and there would be fewer delays.

    Raising the SPD private bar rate to at least a rate comparable with the supreme court rate will enable more attorneys to accept SPD appointments and successfully manage their firms’ businesses. This summer, the State Bar asked members to call or write the governor and legislators to educate them about this issue. We will continue to press this issue in the coming months as the administration prepares the next state budget. Successfully raising the private bar rates will only happen with your active involvement and support.

    Our Duty to Protect “Justice for All” Demands Adequate Funding

    In the United States, before the government can take away a person’s liberty, it must first provide the person with a fair process. Public defenders work to ensure that poor people receive fair treatment and a just result, and they ought to receive fair compensation for doing so.

    by Nicholas L. Chiarkas

    Even if not everyone agrees that people who have less in life should have more in law, at least we should agree that those who have less in life should not also have less in law. indeed, everything we hold dear as Americans is based on the ideals of equality and fairness, especially in the blind-folded eyes of justice.

    “A good and faithful judge,” said Horace, “prefers what is right to what is expedient.” And what is right is a fair and just process. Defense counsel does not stand with the accused to simply satisfy some do-gooder’s sense of an archaic requirement that needs to be checked off before one gets on with the business of the court. it is the role of defense counsel to examine the process and the facts closely enough to detect defects; it is not “justice” if it arrives at the end of an assembly belt – no matter how swiftly – with defects. To do this the defense attorney (public defender) must be compensated at an amount that reflects our commitment to justice for all … an amount that is at least the Wisconsin Supreme Court’s stated minimum of $70 per hour.

    Justice, in the criminal sphere, consists of the alleged wrongdoer receiving what is due him or her, both in process and in punishment. And it is the process, not the punishment, that distinguishes just governments. in the United States, we have agreed that before the government can take away a person’s liberty, it must first provide the person with a fair process. This process is not a gift – rather, it is owed to us, it is due us. That is the simple meaning of due process. it is what this process includes that makes it complex. So complex, that when ever the government seeks to remove a citizen’s liberty, the government is represented by an attorney (a prosecutor). Justice therefore dictates that throughout this complex process, the citizen facing the loss of liberty also should be represented by an attorney. our Pledge of Allegiance promises in its last three words: “…justice for all.” Consequently, citizens too poor to afford an attorney must be provided an attorney by the government.

    Martin Luther King Jr. said, “injustice anywhere is a threat to justice everywhere.” every day in Wisconsin, public defenders and their private bar colleagues are called on to represent our poorest citizens; not to satisfy a technicality, but to protect “justice for all.”

    Nicholas L. 

    wi chiarkasn opd gov Nicholas L. Chiarkas, Temple 1978, is the Wisconsin State Public Defender.

    Wisconsin has a growing criminal justice problem – both in perception and in reality. Defense services are under-funded. Funding is clearly inadequate for defense services, and this robs indigent clients of proper representation. The statutory rate of $40 per hour for our private bar discourages more lawyers from accepting SPD cases by simply not paying lawyers enough for the work they must perform to adequately represent poor clients.

    The role of defense counsel is not only to help the system move along; it is not to save time, or money, or to improve efficiency. it is the role of defense counsel to help the system move to a just and correct conclusion and to take the time required to do that. it is the role of defense counsel to help the system become more effective and respected by building confidence that a just and correct conclusion will be achieved. it is the primary role of defense counsel to think of clients as people, not cases; it is to make certain that the client is being afforded what was promised to all of us – justice. Justice for all is justice without exception. if Wisconsin can only afford justice for some or justice with a wink, then what is provided is not justice at all.

    Public defenders are on the side of poor people. We do not live or work under the delusion that our existence is evidence of our government’s commitment to equal and fair justice for all of its citizens.

    We instead know that we must fight for every inch and every penny of fairness on behalf of the accused-poor. And so, when the government wants to forfeit a person’s liberty, a public defender or her private bar colleague is placed beside that citizen who can’t afford to hire an attorney. However, the defender will not have a police force to investigate the charges. She will not have crime labs, parity of resources for experts, or modern technology. She will not have the funding for these things. And, she will not have public support. Because that defender is requiring the government to provide the process due to the accused before it takes his or her liberty, the defender might be defamed (as in the Boston nanny trial and the recent Wisconsin Supreme Court race). A defender’s willingness to fight for the Constitution carries as much risk today as it did in 1776.

    Outside lawyers representing the state’s interests or public officials are paid at a market rate. The Wisconsin Supreme Court has set a modest standard for a rate that should be paid when courts appoint lawyers to act in the interest of justice or pursuant to statute. That rate is $70 per hour, and it has been that amount for more than a decade. only attorneys representing our poorest citizens facing a loss of liberty are paid less – $40 per hour. At the very least, this low rate discredits our commitment to justice and fairness for all. At the worst, it opens the door to racial disparity, tolerance of wrongful convictions, and disrespect for the justice system.

    It is time for all people (especially members of the State Bar) to stand up for a fair and effective justice system, for the due process owed to those who are swept into the system, and for the lawyers who represent our poorest citizens. it is time for all of us to make a call, write a letter, or speak to the decision makers and let them know that those attorneys who do the hard work of protecting the rights of the accused should get at least the modest rate set by the supreme court.