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    Criminal Justice System & Public Defender Pay

    By all reasonable measures, Wisconsin's compensation for private-bar lawyers appointed to represent indigent criminal defendants is woefully inadequate – whether appointed by the SPD’s Office or by the circuit courts. Learn here why this is so and what is being proposed to rectify the problems.

    Thomas John Walsh

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    Wisconsin has the worst rate of pay in the United States for private-bar lawyers taking appointments from the state public defender’s office.1 That situation makes it more difficult to find lawyers to take these appointments.2 This article analyzes the problems that currently exist with the publicly appointed lawyer system and some solutions that were suggested in the recently proposed changes to Wisconsin Supreme Court Rule (SCR) 81.02.

    Any discussion of this issue ought to start with a brief overview of the role publicly appointed lawyers play in our justice system. Next, the article analyzes the problems created in the appointment process under the current system and then discusses the compensation that is received by lawyers publicly appointed in Wisconsin and how that compensation compares to other states and the federal system. Finally, the article looks at proposed SCR 81.02 and the impact of the supreme court’s recent decision on that proposed modification.

    The Role of Publicly Funded Defense Lawyers

    Publicly appointed defense lawyers must perform all the functions expected of a private lawyer in defending their clients. The lawyer must read the complaint, interview the client, request discovery, and then review discovery materials with the client. After all that, defense counsel has to speak with the prosecutor to discuss a plea offer and then discuss those conversations with the defendant. If the client accepts a plea offer, the matter can be finished quickly, but if it is not accepted, then preparation for trial must be undertaken.

    Thomas J. Walshgov Thomas.Walsh wicourts Thomas J. Walsh, Hamline 1992, is a Brown County Circuit Court judge. He practiced privately in family law from 1992-2012. Walsh is the 2016 recipient of the Hon. Charles Dunn Author Award, presented annually by the State Bar Communications Committee.

    These are time-consuming matters that must be completed in a competent manner. If they are not done competently, the lawyer risks malpractice claims, reports to the Office of Lawyer Regulation and, in some cases, accusations of ineffective assistance of counsel. If ineffective assistance of counsel is demonstrated to the satisfaction of the appellate court, the circuit court’s judgment might be reversed, and the whole case will need to start again with a different lawyer.

    Every lawyer must act competently in every case. At the same time, private practice lawyers are running a business and need to earn a profit to stay in business. Criminal defense cases often present interesting fact patterns or novel legal theories and lawyers will undertake representation simply to get an interesting case on which to work. While these interesting case types are attractive to lawyers, they are not enough, in and of themselves, to entice a lawyer to take on a significant number of cases. Besides having an interesting caseload, the lawyer also must pay his or her overhead and have enough money left over to put food on the table.

    The Problem

    When charged with a crime, defendants in Wisconsin are brought before a judge or a court commissioner, who determines whether the defendant wants counsel and, if so, whether they wish to seek the assistance of a publicly appointed lawyer.

    If the defendant seeks publicly appointed counsel, a referral is made to the State Public Defender’s (SPD) office and the matter is adjourned until the appointment process has run its course. The SPD then assesses the defendant’s financial eligibility and appoints a lawyer if eligibility is established. That appointed lawyer will either be an “in house” lawyer employed by the SPD’s office or a private-bar lawyer willing to accept the appointment.

    If the defendant is not eligible for representation by the SPD pursuant to the standards set forth in Wis. Stat. section 977.08 and if the defendant desires the appointment of counsel, the defendant can request that the court appoint a private-bar lawyer pursuant to State v. Dean.3

    Only small law firms that have stripped down their overhead and have very little support staff can afford to take on these cases at this rate, and they cannot do so in any great numbers.

    Public Defender Appointments vs. Dean Appointments. Arvid E. Dean was charged with two counts of operating a vehicle while intoxicated. The public defender determined that Dean was not eligible for the appointment of a lawyer based upon the SPD’s indigency standards. Dean continued to ask for the appointment of counsel but was denied by the court based on the SPD’s determination that he was not indigent. Dean then pleaded guilty and appealed.

    On appeal, the Wisconsin Court of Appeals found that it was not clearly erroneous for the circuit court to find that Dean was not indigent based on the SPD indigency standards. However, the court noted that “[w]hile this is the end of the inquiry concerning the public defender’s determination of indigency, it is not … the end of the trial court’s inquiry concerning the defendant’s right to counsel.”4 When reviewing the indigency standards set forth by the legislature, the court noted that “[t]he legislature cannot limit who is constitutionally entitled to an attorney. The creation of the public defender’s office is not the exclusive means for assuring counsel to indigents and did not negate the inherent power of the court to appoint when the public defender declines to act.”5

    The court ultimately determined that in cases in which the SPD declines to act and appointed counsel is still sought by the defendant, it is the circuit court’s obligation to inquire further into the defendant’s financial status to determine whether appointed counsel is needed. The court stated that “when the state public defender declines to act, the ‘necessities of the case’ and the demands of ‘public justice and sound policy’ require that the county be obligated to pay for appointed stand-by counsel.”6 Thus, publicly appointed lawyers can be of two types: state appointed from the SPD’s Office or court appointed in cases in which the defendant is not eligible for a public defender.

    The Cost of Doing Business

    There are some problems created as a result of the private-bar-appointment procedure. First, pursuant to the SPD compensation statute, private-bar lawyers are to be paid $40 per hour by the public defender for any work done pursuant to the appointment.7 One commentator suggests that this hourly rate does not even cover the estimated overhead of a private-bar lawyer taking the appointment.8 Citing the State Bar of Wisconsin’s 2013 Economics of Practice Survey, this commentator suggests the average per hour overhead of a Wisconsin private practice lawyer is $41.72.9

    This number may be a close estimate, but to get an accurate sense of the overhead a further analysis of the numbers is probably appropriate. That is, many variables come into play when assessing overhead per hour for private practice lawyers. Some private practice lawyers work for large firms in one of Wisconsin’s large communities while others work from home in rural locales where such home offices are inexpensive. Generalizing “private practice” across the state is a difficult task.

    Having said that, the State Bar of Wisconsin came out with an updated survey regarding the practice of law in late 2017. This updated survey, Economics of Law Practice in Wisconsin, November 2017 Survey Report, contains detailed economic information regarding the practice of law in Wisconsin. As indicated, reaching an exact amount of overhead costs per hour is difficult. However, using this report and the various ways of calculating overhead, it is possible to reach some conclusions.

    The first statistic to look at as a benchmark reflects that some larger firms require associates to bill a minimum number of hours. In the 2017 Survey Report, the median number of hours that firms require associates to bill on an annual basis is 1,800.10 At that rate, a lawyer working at a rate of $40 per hour would earn $72,000 annually.

    Wisconsin’s SPD private-bar rate does not compare favorably with comparable states nor with the federal system. Nor does it compare favorably to the new $100 per hour supreme court rate for court-appointed private counsel in our own state.

    Overhead. Using the 2017 Survey Report, three methods of calculating lawyers’ overhead costs can be compared. The first method would be to divide the annual overhead cost of a given law firm by the number of lawyers in the firm. Thus, in a 10-person law firm, the average annual overhead was $642,850.11 This results in $64,285 per lawyer in overhead on an annual basis. In such a law firm, a lawyer would have to work 1,608 hours at $40 per hour simply to pay his or her portion of the overhead.

    At the same time, however, for a single-person law firm the average annual overhead was $27,900.12 That solo practitioner would only need to work 698 hours at $40 per hour to cover overhead. If a solo practitioner only worked on public defender cases and was able to bill out the 1,800 hours required in a large firm, that practitioner would have gross receipts of $72,000. This sum of money could, in fact, cover the overhead costs.13

    The conclusion that can be reached from this analysis is that only small law firms that have stripped down their overhead and have very little support staff can afford to take on these cases at this rate, and they cannot do so in any great numbers. Most lawyers doing this type of work can only do it part time because they need “full-pay clients” to subsidize the cost of doing public defender appointment work.

    Another way to assess overhead using the 2017 Survey Report is to start with the median typical hourly rate for Wisconsin private practitioners, $250 per hour.14 On average, total overhead accounted for 35 percent of gross revenues.15 Using these numbers, $87.50 per hour (35 percent of the hourly rate of $250) is the average amount of overhead that can be attributed to a private practitioner’s hourly rate. At this overhead rate, public defender appointments at $40 per hour don’t even cover one-half of the overhead.

    One final method of calculating overhead that deserves attention is the one relied on by the petitioners who filed the request to revise SCR 81.02. They used the 2013 Survey Report to come up with an hourly amount of overhead per lawyer. They took the mean annual overhead for private practice lawyers and divided it by the mean number of hours lawyers work on an annual basis. Applying that same methodology on the more current 2017 Survey Report shows that private practice lawyers have a median annual overhead expense of $113,500.16 Lawyers engage in an average of 46 hours per week in work-related activities or 2,392 hours per year.17 Dividing these numbers results in a total of $47.45 per hour in overhead (that is, $113,500  2,392 hours per year = $47.45).

    No matter how these statistics are read, it is clear that the average Wisconsin lawyer cannot afford to perform such an important task at the rate that currently exists.

    Lawyers for the “Indigent” and Lawyers for the “Very Indigent.” Private practice lawyers are thus doing this work only if they can drastically reduce their overhead number or if they have some other motive for doing the work such as “cutting their teeth” in the courtroom before moving on to higher paying work.

    It is important to note that the public defender rate is contrasted with the “court-appointed” rate currently outlined in SCR 81.02 ($70 per hour currently and $100 per hour under the newly passed rule). Criminal defense lawyers appointed pursuant to State v. Dean are paid significantly better than their counterparts appointed by the SPD.  This seems contrary to the notion of fairness, which we expect to be inherent in our judicial system.

    Concepts of free market economics tell us that a person paid a higher rate will generally provide a higher level of service and give more attention to a case. Many lawyers are on both the public defender list and the “Dean appointment” list. A person sophisticated in free markets who looked at this situation would probably conclude that any lawyer trying to make a living will prefer to spend more time on a case paying $100 per hour than on one paying $40 per hour. Thus, a two-tier system has been created: one for the poor and one for the very poor.

    After briefly offering a higher rate the SPD now pays what was being paid in 1985.

    Problems for Judges. This two-tier system creates a problem for judges as well. As a general rule, judges have a desire to move their case loads along efficiently and not waste time calling cases that are simply being rescheduled while waiting for counsel to be appointed. If a defendant does qualify for a public defender, the court may wait significantly longer to process the case while waiting to find private counsel willing to take the case at the lower rate.

    These delays can take several weeks and can, of course, result in defendants who are unable to pay a cash bond having to sit in the county jail at the expense of the county taxpayer for longer. This leads to jail overcrowding and court congestion. To avoid such delays, courts may simply choose to bypass the public defender process and go right to the county paid list. As counties seek to construct new jails or transport prisoners waiting for trial to other counties with more jail space, they could find one source of their problem in the publicly appointed lawyer process.

    In addition to the above, there is a more direct political problem. Elected officials on county boards across the state would rather have the SPD pay for these appointments than have the payment come from county coffers. However, it is the state that sets the level at which the public defender can refuse service due to excessive income. Thus, the county officials have to figure out a way to pay for defense counsel at a higher rate with simply no way to control the flow and the state can alleviate its budgetary constraints by keeping the hourly rate lower and forcing courts to appoint from the county budget at the higher rate just to move cases along.18

    Comparative Compensation Rates

    Other Wisconsin Rates. The current version of Wisconsin SCR 81.02 reads as follows:

    “(1) Except as provided under sub. (1m), attorneys appointed by any court to provide legal services for that court, for judges sued in their official capacity, for indigents and for boards, commissions and committees appointed by the supreme court shall be compensated at the rate of $70 [$100 under the new rule] per hour or a higher rate set by the appointing authority. The supreme court shall review the specified rate of compensation every two years.

    (1m) Any provider of legal services may contract for the provision of legal services at less than the rate of compensation under sub. (1).”19

    State court criminal defense is not the only area of state legal practice for which private bar appointments are needed and often used. The most notable and familiar of these areas is in the guardian ad litem (GAL) positions. In Wisconsin, GALs must be lawyers and are appointed to represent minors and vulnerable adults in various court cases. In these cases, the new SCR 81.02 will require that the compensation be a minimum of $100 per hour or a higher rate set by the appointing authority.

    Ultimately, if payment is coming from the government, the $100 rate would be typical, but if there is a private source of funds the hourly rate can be much higher. As a result of these uncertain expenditures, there have been various efforts throughout the state to level off expenditures by entering into contracts with lawyers for flat-rate services or lower hourly rates. This, of course, is permitted under SCR 81.02(1m), but would have been prohibited under the proposed rule.

    The federal court system, which is in many respects a mirror image of the state courts, processes criminal cases, has prosecutors similar to state district attorneys, has a public defender, and has public defender appointments for overflow purposes. The federal government pays court-appointed lawyers $140 per hour for non-capital-punishment cases and $188 per hour for capital cases.20 It cannot seriously be asserted that federal cases are so much more complex or more serious than state court cases as to justify paying SPD-appointed lawyers at a rate less than one-third that of their federal counterparts.

    Rates Outside Wisconsin. Other states pay more than Wisconsin for publicly appointed lawyers as well. As a general rule, there are three different systems used throughout the country for setting the rate of appointed lawyers on criminal cases:21 the amount is set by statute, regulation, or rule; the amount is left to the court on a case-by-case basis; or the amount is the subject of a contract between the public defender and the private lawyer.22 (See Figure 1: How States Set Rates.)

    The states in which the court sets the compensation on a case-by-case basis are difficult to compare with Wisconsin. Further, states that use a contracted system would have differing factors involved in negotiating those contracts, and the system is so distinct from Wisconsin’s that making a comparison with those states would be difficult as well. However, the largest group of states, 30 in total, use a system of establishing compensation rates that is similar to Wisconsin’s. The highest are Nevada and Wyoming, both at $100 per hour.26 The lowest rate is Wyoming’s minimum out-of-court rate of $30 per hour. After that, Wisconsin is the lowest at $40 per hour along with the Tennessee and South Carolina out-of-court rates at $40 per hour.27

    Thus, Wisconsin’s SPD private-bar rate does not compare favorably with comparable states nor with the federal system. Nor does it compare favorably to the new $100 per hour supreme court rate for court-appointed private counsel in our own state. This is not a positive signal to indigent defendants in Wisconsin who are attempting to exercise their rights under the U.S. Constitution.

    Figure 1: How States Set Rates

    • States setting their rates by statute, regulation, or rule: Alabama, Alaska, Arkansas, Colorado, Connecticut, Delaware, Hawaii, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, West Virginia, Wisconsin, and Wyoming.23

    • States where judges determine those rates case by case: Arizona, California, Idaho, Michigan, Mississippi, Pennsylvania, Texas, Utah, and Washington.24

    • States that determine the rate by contract: Florida, Georgia, Illinois, Kentucky, Louisiana, Minnesota, Missouri, Nebraska, New Mexico, Oklahoma, and Washington.25

    SCR Rule Petition 17-06

    On May 25, 2017, a petition was filed with the Wisconsin Supreme Court that would have drastically changed the compensation system for publicly appointed lawyers. The supreme court conducted preliminary discussions of the issue at the open rules conference in June 2017 and, in January 2018, requested additional information from the petitioners.28 A public hearing on this proposed rule change was held on May 16, 2018, and ultimately the supreme court approved only a portion of the proposal.29

    The proposal to amend SCR 81.02 would have affected the compensation issue in four important ways. First, it proposed a rate increase for lawyers appointed by the court to $100 per hour or a higher rate set by the appointing authority.  The supreme court approved this portion of the proposal.  Thus, “Dean appointed”-lawyers should see their hourly rates increase by $30 per hour. Second, it was proposed that this rate be indexed and raised annually consistent with cost-of-living increases.

    Third, the proposed amendment eliminated the phrase “[a]ny provider of legal services may contract for the provision of legal services at less than the rate of compensation under sub. (1).” Fourth, and perhaps most significant, it proposed that payment of an hourly rate less than the hourly rate set forth in the new rule for a private-bar appointment by the public defender’s office would be considered “unreasonable.”

    The proposed changes, designed to address some of the most serious problems in the compensation scheme, were significant but only partially adopted. Pursuant to the amended rule, the hourly rate paid by county governments for Dean appointments will be increased from $70 per hour to $100 per hour likely by the beginning of July. Some counties may be left with increasing their tax levy to cover the amount. Of course, this raises an issue that has come up in other settings, particularly the line of cases dealing with school desegregation, of taxation without representation. Judicial officers are not elected for the purpose of determining an appropriate tax levy and yet they would be essentially ordering legislative bodies to either raise taxes to cover the cost or reapportion current spending priorities to cover the cost.30 While the Supreme Court was reluctant to do this to the state legislature, county boards will be faced with a similar problem regarding the increased rate for Dean appointments.

    The indexing portion of the proposal would have meant the issue of lawyer compensation would not have to be addressed again for the foreseeable future because the amount would be adjusted with the cost of living. In 1981 the Wisconsin Legislature set the SPD private-counsel rate at $35 per hour for in-court time and $25 per hour for out-of-court time.31 In 1985 the rate was increased to $40 per hour for in-court work and $30 per hour for out-of-court work.32 The rate later went up to $45 per hour for in-court time and $35 per hour for out-of-court time and in 1992 it went to $50 per hour in court and $40 per hour out of court.33 In 1995, the rate went down to $40 per hour for all time related to the case.

    In other words, after briefly offering a higher rate the SPD now pays what was being paid in 1985. When looked at in the context of the Consumer Price Index (CPI), the purchasing power of $40 in 1985 is equivalent to $94.62 in 2018.34 Very few sectors of our economy would permit such extreme wage stagnation. Indexing the number in SCR 88.02 or in a state statute seems an appropriate step to avoid the stagnation that has existed for the past quarter-century and the political issues that surround the spending of money.

    The inability of counties or the SPD to contract for a lesser amount would have boxed in both the state and the county governments. That is precisely one of the methods used to reduce costs. However, as long as there are new lawyers willing to take these cases for the purpose of cutting their teeth in court, there will be a market for cut-rate contracts. This is an unfortunate circumstance but may be a lesson that the free market is not necessarily the best way to provide a fundamental constitutional right to indigent people. The right to counsel is one such right, and it is vital to a free and fair society. It should not be provided solely with economy in mind. It is likely that the increase to $100 per hour, without a corresponding prohibition against lower contracted amounts, will simply lead to an increase in such contracts.

    Finally, the rule specifically addressed the situation with SPD appointments as distinguished from other court appointments by making a specific finding that payment of less than $100 per hour was unreasonable. The SPD would still have the authority to appoint private-bar lawyers and would be required to pay them, but the SPD could not pay less than $100 per hour given that the supreme court would have already determined such a rate to be unreasonable.  This part of the rule was not approved and has the effect of keeping the rate for SPD private appointments at $40 per hour unless the legislature takes action.

    When the Wisconsin Supreme Court declined to increase the court-appointed-counsel rate in 2010 it recognized the tension between the legislature and the court by noting “[w]e agree that this is an area of shared authority between the court and the legislature, but we decline at this time to use our administrative regulatory process to effectively circumvent a legislative enactment.”35 It is clear from this statement that the supreme court believes it has the authority to adopt such a rule but did not wish to exercise it in 2010.  The recent decision on proposed SCR 81.02 suggests that it is still unwilling to exercise that authority.

    It goes without saying that the SPD’s office probably does not object to paying the higher hourly rate if the state legislature funds it.  Although efforts have been made in the past to raise the compensation levels in the Wisconsin Legislature, all have proved unsuccessful. In fact, a proposed bill, being circulated in the Wisconsin Assembly by Ron Tusler (R-Harrison) and Evan Goyke (D-Milwaukee), would implement a tiered approach for private-bar compensation depending on the complexity of the case, but there is need for co-sponsors.36 It would appear that the solution to this problem will not come any time soon and, if it does come, it will have to come from the state legislature via an amendment to the compensation statute.

    Conclusion

    The notion that competent defense lawyers are essential to the effective administration of justice is well documented:

    “Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries.”38

    The data assembled by the State Bar of Wisconsin seems to suggest that the current SPD rate for outside counsel does not adequately cover the overhead for private counsel and provide sufficient profit to justify the work. This work is a necessity, not a luxury. Failing to provide adequate compensation to the lawyers doing this work reflects poorly on the Wisconsin justice system.

    In that sense, a modification to the rate is appropriate and needed. Accomplishing that by a supreme court rule versus amending the SPD payment statute really does not matter as much as the fact that it gets done. The recent proposal to amend SCR 81.02 seemed to contain the essential elements to solve the identified issues, but it will be up to the legislature to move the issue forward.

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    People to People exchange program at the Cape of Good Hope

    The most memorable trip I ever took was also a law-related trip. I traveled to South Africa with the People to People professional exchange program to study their family law system. The trip occurred in 2009. It consisted of lawyer and judges from around the country and was led by attorney Gregg Herman, who practices family law at Loeb & Herman S.C., Milwaukee. We met with family law attorneys from South Africa as well as representatives of various governmental agencies that deal with family law issues, for example, child support, social services, mediation services, and nonprofit organizations.

    As a result of this trip I published an article about South Africa’s Children’s Act in the 2011 edition of the Michigan State Journal of International Law. Although there are certainly some challenges in South Africa’s legal system, their Children’s Act is a very enlightened piece of legislation that seeks to improve the lives of the most vulnerable and important segment of the population – their children.

    Of course, the trip had some recreational aspects. Seeing the tiny cell occupied by Nelson Mandela for 18 of his 27 years of imprisonment was very moving. A trip up Table Mountain, looking out over the ocean from the Cape of Good Hope, a 10K run along the waterfront in Cape Town, and a safari in Kruger Park were among the most enjoyable diversions.

    Photo: Participants in the People to People exchange program at the Cape of Good Hope.

    gov Thomas.Walsh wicourts Thomas J. Walsh, Brown County Circuit Court, Green Bay.

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    Endnotes

    1 John P. Gross, Rationing Justice: The Underfunding of Assigned Counsel Systems, A 50-State Survey of Trial Court Assigned Counsel Rates 20, www.nacdl.org/gideonat50/.

    2 Id. at 15 (noting that “[i]nadequate compensation restricts the pool of attorneys willing to represent indigent defendants and threatens the quality of indigent defense because of perverse economic incentives.”)(citations omitted).

    3 State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (1991).

    4 Id. at 511.

    5 Id. at 513.

    6 Id. at 515-16.

    7 Wis. Stat. § 977.08(4m)(c).

    8 Joe Forward, Country’s Lowest Pay Rate for SPD Appointments Equals Constitutional Crisis, InsideTrack (May 3, 2017).

    9 Id.

    10 State Bar of Wisconsin, Economics of Law Practice in Wisconsin, November 2017 Survey Report 44 [hereinafter Economics of Law Practice Survey].

    11 Id. at 49.

    12 Id.

    13 However, a solo-practitioner law firm with only $27,900 in overhead is going to have very limited resources and likely no full-time staff. According to the U.S. Department of Labor, the annual mean wage of one paralegal or legal assistant is $48,120. U.S. Bureau of Labor Statistics, May 2016 State Occupational Employment and Wage Estimates Wisconsin, (last visited March 16, 2018). If this hypothetical solo practitioner had even one legal assistant, the overhead would consume all the income.

    14 Economics of Law Practice Survey, supra note 10, at 41.

    15 Id. at 48.

    16 Id.

    17 Id. at 36. Note that the hours engaged in work-related activities are not all billable hours.

    18 Some circuit courts have tried to ameliorate this problem by setting maximum billable amounts for certain types of cases. The Brown County Circuit Court requires advanced approval by the court for any amounts exceeding very specific hourly limitations for each type of offense and at each stage of the case. For example, for a Class B felony, 15 hours are permitted if the case resolves at or before arraignment, 30 hours are permitted if the case resolves after evidentiary motions, and 55 hours are permitted after a jury trial.

    19 SCR 81.02.

    20 www.uscourts.gov/services-forms/defender-services. This rate was raised from $135 and $185, effective March 23, 2018.

    21 Gross, supra note 1, at 9.

    22 Id.

    23 Id.

    24 Id.

    25 Id. The following states, already listed as using other methods of determining rates, also permit rates to be determined by contract: Arizona, California, Connecticut, Iowa, Michigan, Mississippi, Pennsylvania, Texas, Utah, and Washington. Id.

    26 Id. at 26, 32. Wyoming’s rates are $100 in-court maximum with lower amounts for out-of-court work.

    27 Id. at 20-32. Alabama ($70); Alaska ($60 in court, $50 out of court); Arkansas ($70-$90 for Class A felonies, $60-$80 for other felonies, $50-$80 for misdemeanors); Colorado ($68 for Type A felonies, $65 for Type B felonies, $65 for misdemeanors); Connecticut ($75 for felonies, $50 for misdemeanors); Delaware ($60); Hawaii ($90); Indiana (not less than $70); Iowa ($70 for Class A felonies, $65 for Class B felonies, all other charges $60); Kansas ($80); Maine ($50); Maryland ($50); Massachusetts ($60 in superior court, $50 in district court); Montana ($60); Nevada ($100); New Hampshire ($60); New Jersey ($60 in court, $50 out of court); New York ($75 for felonies, $60 for misdemeanors); North Carolina ($70 for Class A-D felonies, $55 all other cases); North Dakota ($75); Ohio ($60 in court, $50 out of court); Oregon ($45); Rhode Island ($90 for Class 1 felonies, $60 for Class 2 felonies, $50 for misdemeanors); South Carolina ($60 in court, $40 out of court); South Dakota ($84); Tennessee ($50 in court, $40 out of court); Vermont ($50); West Virginia ($65 in court, $45 out of court); Wisconsin ($40); Wyoming ($100 in-court maximum, $30 out-of-court minimum, $60 out-of-court maximum).

    28 Letter from Julie Anne Rich, Supreme Court Commissioner, to Interested Persons, March 7, 2018, www.wicourts.gov/scrules/supreme.htm.

    29 Joe Forward, Wisconsin Supreme Court Raises Lawyer Pay for Court Appointments, Takes No Action on SPD Rate, WisBar News (May 18, 2018).

    30 For a discussion of this topic, see generally Thomas Walsh, “No Taxation Without Representation … Unless Desegregation:” The Power of Federal Courts to Order Tax Increases to Desegregate Schools: Missouri v. Jenkins, 12 Hamline J. of Pub. Law & Policy 191 (1991).

    31 Wisconsin Laws of 1981 Chapter 20, creating Wis. Stat. § 977.08(4m), www.docs.legis.wisconsin.gov/1981/related/acts.20.

    32 Act 29 (Section 2474a) amending Wis. Stat. § 977.08(4m).

    33 Wis. Stat. § 977.075(4m).

    34 Using a simple CPI Inflation Calculator, $40 in January 1985 would have the same buying power as $94.62 in March 2018. Thus, an increase to $94.62 per hour would only put private pay lawyers at what they were getting in 1985. Similarly, the $40 per hour that is being paid now was worth $16.91 in 1985. See CPI Inflation Calculator, http://data.bls.gov/cgi-bin/cpicalc.pl?cost1=40&year1=198501&year2=201803.

    35 In the matter of the petition to amend Supreme Court Rule 81.02., July 6, 2011, www.wicourts.gov/scrules/supreme.htm.

    36 Ed Treleven, Catching Up: Pay Increase Sought for Private Lawyers Taking Public Defender Cases. The rates proposed are $55, $60, and $70. Id.

    37 Gideon v. Wainwright, 372 U.S. 335, 344 (1963).