Making the Cut: State Public Defender's Office Lives Within a Reduced Budget

By Dianne Molvig

When the Legislature slashed the State Public Defender office's biennial budget in July 1995, many observers wondered how the SPD would meet those cuts. Probably few believed the SPD could do it, and some felt the SPD should not do it. Instead of just rolling over, those critics argued, the SPD should put up more of a fight.

In the end it was up to SPD top administrators to make the call on how to respond. "We had our doubts," admits State Public Defender Nick Chiarkas, "as to what the agency could do to achieve those challenges. And there were several I thought would be impossible. But we decided that what we were going to do was try like hell to make it." (According to Chiarkas, the SPD's biennial budget was cut by roughly 17 percent.)

In Chiarkas's mind, that was a better option than butting heads with the state. "In many states where public defender offices have been cut," he notes, "the public defenders have brought lawsuits against their legislatures. In this state, and I think this is a tribute to Wisconsin, what our staff did was work twice as hard ... I'm very proud of all the people in this agency."

Indeed, SPD's statistics show it has racked up some sizable fiscal accomplishments in the past 18 months. The agency has trimmed its deficit from $18.4 million to $2.33 million. (This February the Joint Finance Committee voted to put the remaining deficit amount of $2.33 million back into the SPD budget.) Savings have materialized by meeting, or partially meeting, several legislative demands:

• The SPD must use fixed-fee contracting for up to 33 percent of the trial-level cases it assigns to the private bar. Contracting will reach the 33 percent mark in fiscal year 1997, when the agency projects it will issue contracts for 13,100 misdemeanor cases to private bar lawyers. (Contracting is used only for misdemeanors at this time; SPD officials don't expect that to change for the next biennium.)
  
  
• Each SPD staff attorney in the trial division must handle an annual caseload of any of the following: 15 first-degree intentional homicides, 184.5 felonies, 492 misdemeanors or 246 "other" cases. These numbers reflect an overall boost in caseload of 14.1 percent. The SPD reports that staff are completing 98 percent of this caseload.
  
  
• SPD staff must represent only clients who qualify under stricter indigency requirements.
  
  
• SPD staff now are prohibited from representing clients in certain types of cases, such as conditions of confinement and parents in CHIPS proceedings.
  
  
• SPD clients, when able, must pay a fee for representation. Paying a lower upfront fee (usually $50 to $500) spares a client from being billed a larger amount later, which, if necessary, is pursued through collection agencies.
  
  
• Rates for private bar attorneys who take SPD cases on an hourly basis went down to $40 per hour across the board (they had been $50 per in-court hour and $40 per out-of-court hour).

Have the above cost-saving measures had repercussions? Undoubtedly, not only for the SPD itself, but also for its clients, for the general public and for the legal profession as a whole. Views differ, however, as to what those repercussions are and what they mean. The remainder of this article takes a closer look, from diverse perspectives, at questions and concerns related to these cost-saving measures.

Contracting: Of efficiency and ethics

In flat-fee contracting, the SPD pays a private bar attorney a preset sum to handle a given number of misdemeanor cases. The controversy surrounding this topic has quieted since mid-1995. But opponents point to what they still see as the key danger: Contracting attorneys face a built-in conflict of interest between watching out for their bottom line and advocating fully for their clients' rights. The pressure is always there, for instance, to plead early rather than to see a case to trial.

But Madison attorney Dan Dunn, who contracted for 800 files for this biennium, says, "I find no ethical problem in taking these cases. Absolutely not. We handle cases much the same way whether they're on contract or they walk in the door."

Nor does Dunn think the district attorneys regard a case any differently because they know he's taken it on contract. "When there's merit, we will defend hard," he says. "We prepare for trials on cases we think deserve to go to trial. I don't think anybody (in the DA's office) is saying when they see us walk in, 'Oh, here comes a fish.'"

Craig Miller, a Milwaukee attorney who contracted for 2,300 cases for his four-member firm, echoes Dunn's sentiments. "My view is that the contracting attorneys I know are very dedicated criminal defense lawyers," Miller says. "I've seen them in action numerous times. I've seen how hard they fight for two days extra credit, or to get back $50 of bail money, or to not let someone fall between the cracks. I think the level of representation is very high. Now, it may turn out that some marginal attorneys will see this as a way to make quicker money and try to become contract attorneys. I think that needs to be watched."

At the outset, some critics claimed that contracting would result in more appeals due to inadequate defenses. At least one "ineffective assistance of counsel" complaint related to contracting has surfaced thus far. It's the subject of a hearing in Milwaukee County (as of late February, a decision was still pending). Miller himself is the lawyer in question, with his client contending that Miller didn't adequately represent him because of the inherent conflict of interest in contracting.

Has that experience soured Miller's view on contracting? "Not in the least," he says. "One of the questions asked of me when I testified - and it was a legitimate question - was whether my representation of the client differed from what it would have been if I were not a contract lawyer. My answer was that it did not."

From the judicial vantage point, little concern has been expressed to date about whether defense for contract cases is proving to be any less rigorous than for noncontract cases. Dane County Circuit Court Judge Daniel Moeser probably sums up the situation when he says, "I think it goes to the quality of the people doing (the contracting). From what I have seen, the quality is fine."

Meanwhile, however, Milwaukee County Circuit Court Judge Dennis Moroney, a misdemeanor judge and a long-time critic of contracting, does make one observation. "I'm having a lot fewer jury trials than I used to," he says. Statistics from Gary Barczak, Milwaukee County Clerk of Circuit Court, show that while the total number of jury trials in Milwaukee County for all types of cases decreased by about 5 percent for 1995 compared to 1994, the number of misdemeanor jury trials fell off by 19 percent for the same period. Contracting didn't get underway, however, until October 1995. Misdemeanor jury trials decreased 10.6 percent for 1996 compared to 1995, compared to a 6.7 percent drop in all jury trials for the same period. [The statistics do not show the cause of the reductions, which could be a combination of several factors, including contracting.]

To safeguard against any suggestions that contracting lawyers are too quick to plead cases, Moroney engages in a colloquy with both attorney and client when they enter a guilty plea. He feels this step assures that the client knows the attorney is working for the SPD on a flat-fee basis, and that the client feels defense options were clearly laid out. "Originally, I was berated by some folks for suggesting that counsel was being other than ethical," Moroney notes. "But it has nothing to do with that. As a judge, I have my own independent duty ... to make sure that in my court no one is suggesting or thinking they made a plea just because it would save counsel 10 to 30 hours of time for the same money they'd get for pleading the case after two or three hours. That's why I ask those questions."

Rice Lake attorney Al Sykes raises yet another concern about contracting. Sykes, who takes SPD cases but not on a contract basis, questions the wisdom of concentrating SPD work into the hands of a smaller group of people, especially if SPD hourly appointments to the private bar vanish, as he feels they will eventually. "What people are failing to recognize," Sykes argues, "is that someday those lawyers become judges, legislators and district attorneys, particularly in a small town where you see attorneys wearing a lot of different hats in a lifetime. Many of those people may never have a public defender case, and no empathy for a poor person because they've never represented one. I think that's the real harm to criminal defendants in the long run. I think the SPD should spread these cases among as many people in the bar as they can so that everybody has a flavor for this."

Contracting: Who benefits?

As for the business end of contracting, Craig Miller feels it has brought his firm some stability because he and his colleagues can count on a block of cases. "And," he adds, "it's created efficiency in handling these cases - such things as developing forms, schedules, case law files for discovery materials and so on. So by being assured of a certain volume of cases, it gives us the benefit of developing more expertise. And I think that works to the defendants' benefit."

Which, Miller points out, should be the test by which contracting is measured. "If the clients benefit," he says, "because their attorneys become more expert, there's more efficiency, the cases are resolved quicker, and the end dispositions are better, then I think contracting should go forward. If everyone else is happy, but the defendants are getting screwed, by all means get rid of it. That's the ultimate test: Who benefits? It shouldn't be the lawyers, the judges, the DAs, the jail. It should be the defendants."

Still, contracting also has to be workable for the private attorneys involved in order to draw quality defense lawyers on board. Some current contract lawyers cite the need for some changes on the business side.

"One of the reasons I think it might not be attractive for me or others in similar situations to continue this," Dunn says, "is that when we bid the files, we didn't include extraneous problems." As an example, many of Dunn's contract clients are transients or living in shelters, and when they miss court appearances, they're nowhere to be found. But eventually the police bring them in and then, Dunn notes, "there's more work in terms of dealing with the court, dealing with the DA on bail and release issues. So were I to do this again, I'd probably try to negotiate with the SPD for an additional payment of at least another hour per file when I have a defendant who fails to show up."

La Crosse attorney John Brinckman also believes some renegotiations may be necessary if he's to renew his contract come July. Brinckman bid for 546 cases for his five-lawyer firm, but as of this January had received only about a quarter of that number. Still, he says, "We have to be ready when the SPD calls, and sometimes they don't give us more than an hour's notice before we have to be in court." That means every afternoon one lawyer on staff (this rotates among them all) has to stay freed up to take any cases the SPD sends over. Some days four or five cases come in; other times, a week goes by with none at all. The result has been scheduling burdens and much less income than Brinckman expected.

When he signed up for the contracts, Brinckman says, "I made the decision that we were going to give these cases the time they deserve, not make them a second-rate thing. That wouldn't be fair to the system. So we're giving them the time they deserve. But it's much less profitable than we hoped it would be" because of lack of case volume. When contract renewals roll around, "I'd like to be able to sit down with the SPD," Brinckman says, "and say there are some reasons why we should get a little more money for this that maybe nobody took into consideration in the beginning."

Staff caseload: Higher numbers, tougher cases

The push to make caseload numbers exerts heavy pressure on SPD staff attorneys - especially when they feel promotions and raises depend partly upon meeting caseload quotas. (SPD's Chiarkas maintains that raises and promotions are not linked to making caseload, but the perception of at least some SPD staff runs to the contrary.)

The stress generated by caseload is nothing new; it's always been a part of an SPD lawyer's life. But it's probably as bad as it's ever been, some say, and it takes a toll. "I think if you were to ask the rank-and-file their number one complaint, you'd hear it's caseload," notes one staff attorney. "It's to the point where it's almost impossible to do quality work and maintain your caseload and still have some sort of life outside the office."

Another staff lawyer observes, "There are people in our office who some days just throw up their hands and say, 'I can't keep up! I have 40 files on my desk, I opened them all last week, and I have no idea who these people are.'"

The only way through it, he adds, "is to work your butt off. Some days you're down in your office at 6 a.m., you get home at midnight. And when you're in a big trial, it destroys you because you work on that and let all your other cases sit there."

What suffers most, SPD attorneys say, is client contact, which they view as critical to quality defense. But often there's no time to squeeze in calls or visits to clients to keep them informed, and clients may end up feeling they've been left high and dry by their lawyer.

The higher caseload requirements are only part of the picture. Legislators hit the SPD from another direction: They passed new laws, such as the sexual predator law and the more severe juvenile code, which put a great deal at stake for SPD clients. As one lawyer observes, "Try to sit down and explain the acknowledgment of rights to an 11-year -old. I had to do that a few days ago. I stopped and asked him, 'Do you understand this?' He was petrified, scared to death."

What's more, the SPD now ends up in court to defend juveniles against charges that might have been handled informally prior to the new code. For example, in one community, a 10-year-old was charged with theft for allegedly stealing the cap off a tire's valve stem. In another, two 17-year-olds were charged with criminal damage to their parents' cars, which they drove without parental permission. The SPD attorneys had to scramble to keep adult felony charges off the teens' permanent records.

Still, even with the pressures coming from all directions and working in conditions many attorneys would choose to avoid, many SPD attorneys stick with their jobs for the long term. "I think a lot of us feel that what we're doing is not only right, but it has to be done," says one SPD staffer. "And, frankly, we're people who want to do this work - not at the rate they [the Legislature] want, but we do want to do this work. So the fact is, most of us are pretty dedicated to this."

But dedication only goes so far. A real worry among SPD rank-and-file is that state policymakers will keep piling on more demands and allocating fewer resources.

New restrictions: More people left unserved

The current indigency standards adopted by the Legislature in 1995 fall below the federal poverty line. Thus, many people (no one has a count) are now turned away at the SPD's door. But they still can't afford an attorney, and when they appear in court many judges feel compelled to appoint representation - at county expense.

"It burdens the judiciary to have such an unrealistically low indigency requirement," says Jim Brennan, director of the Legal Aid Society of Milwaukee and chair of the State Bar Indigent Defense Committee, "because it doesn't change the constitutional mandate that indigents have appointed counsel. Ultimately, this is a form of reverse property tax relief. It's state budget relief at the expense of local property taxes."

In Dodge County, for instance, indigent defense bills tallied more than $66,000 in 1996, $26,000 above budget, according to Dodge County Circuit Court Judge Andrew Bissonnette. "Every Monday morning in intake court," he notes, "we're finding we have two to five defendants showing up to say they were determined nonindigent by the SPD guidelines. And in at least 80 percent of those, the court feels they are indigent."

Similar stories are beginning to pop up in several counties across the state, and so are reactions. The Outagamie County Board, for instance, unanimously passed a resolution asking the Legislature to "investigate and address the unintended mandate caused by recent changes" in determining indigency to qualify for SPD services.

Another development that will affect counties is the Wisconsin Supreme Court decision ordering that, counter to what a state statute had dictated, circuit court judges can appoint counsel for indigent parents in CHIPS proceedings - again, at county expense because the Legislature has prohibited the SPD from taking such clients.

The tightened indigency requirements have created other burdens. The new "I-forms" for determining if clients are indigent mean more time on paperwork, and less on lawyering, for staff attorneys. Some SPD offices have clerical staff to handle this; others don't. As one SPD lawyer notes, "It's not just the caseload that's killing us, it's the amount of time we have to spend determining indigency."

The I-forms consume court administrative time, as well. A typical scenario goes like this: When indigent defendants appear in court with their I-forms, the court asks them to complete the forms and return the next week. They come back a week later with the forms but have neglected to obtain the retainer figures from three attorneys, as required. "They don't always understand what they're supposed to do," Bissonnette says, "and then if we appoint somebody (if the defendant doesn't qualify for indigency), we have to continue the case again so they can see that lawyer. So we sometimes lose two to four weeks on the court calendar in terms of processing a case while all this takes place."

Still another issue is the new policy requiring SPD clients to pay, as they are able, for legal services. It's become a source of no end of confusion. As an example, "I had a client accused of battery," explains Dennis Burke of the SPD Madison office. "The guidelines say she owes us either $50 in the first 30 days or $200 if she doesn't pay in the first 30 days. She called me and thought those were court costs, and that if she didn't pay quickly she'd go to jail. So clients don't understand this. They're getting these bills that, in their eyes, say, 'By the way, that free lawyer will cost you $200.' But most of our clients have enormous debts; they're in deep holes. They'd have to win the lottery in order for the SPD to collect. It's an impossible task."

Statistics seem to bear that out. The SPD has been able to collect about $1.4 million from clients (mostly from upfront payments) on its own initiative. Total clients' bills, however, sent out through the collections program (under auspices of the Department of Administration) amount to $15.5 million to date. As of the end of October 1996, only $6,400 had been collected.

Less private bar involvement: What are the costs?

It's no secret that many in the private bar have long felt disgruntled about the hourly compensation rate they earn on SPD cases. Many have come to the same realization La Crosse attorney Jim Kroner did several years ago. "For every SPD client I took," he says, "I was paying $10 out of my pocket for each hour I worked on the case, not to mention not having anything to pay my overhead. It didn't make sense." About two years ago Kroner pulled out of doing SPD work, just before the private bar hourly rates were cut again in the present budget. "That convinced me I'd done the right thing," he notes.

Low compensation isn't the only factor that's driven away some private bar lawyers. Dan Snyder, a Park Falls attorney, started doing SPD work as soon as he launched his practice back in 1988. In 1995 he quit doing trial cases although he's remained on the appellate roster. "I think it would be unethical for me to continue," he states. "I feel I'd be violating the code of professional responsibility because I wouldn't be doing for these clients what I should be."

Snyder reached that conclusion after he received letters from the SPD criticizing the number of hours he was putting into certain cases. As one example, the SPD questioned and reduced his bill for hours he'd spent visiting a client in jail who was facing a sexual assault charge. "I explained that my client was illiterate," Snyder says, "and couldn't read any letters I sent him, and that his phone calls were monitored in jail. So if I didn't go down and talk to him in person, I guess I'd have to send a letter and ask the jailer to read it to him, which I thought was an imprudent thing to do."

"Rather than criticizing the lawyer who does the work," Snyder adds, "why not just be honest and say because of budget constraints the SPD can't pay the full amount of my bill. That I could understand. But instead you get this blizzard of nit-picking letters. The whole thing got to be too much for me."

But despite losing some lawyers, the SPD says its roster of private bar attorneys remains healthy in numbers. Still, Jim Brennan maintains, "what I've heard from some attorneys [on the list] is that they're not getting enough individual appointments to remain active" in SPD cases. Consequently, some attorneys feel they're at a crossroads where they either must decide to bid for SPD contracts or forget about SPD work altogether.

Whatever the reason for diminished private bar involvement with the SPD, Brennan sees it as a troubling trend. After all, future budget cycles will roll around, and they could well be no less harsh to live with than the current one. Although no further cuts are expected in the immediately approaching budget (a sort of "reward," as Brennan notes, for the SPD making its fiscal goals), no one can predict what will happen in future budgets. The long-range danger, Brennan contends, is that like any other state agency, the SPD could "quickly become just adrift out there in the budget process with little or no outside support." What fuels that support, he adds, is bar members' active participation with the SPD.

"If in the long run," Brennan says, "the SPD program is going to retain a high quality of representation, I think it's important that the private bar and the SPD program work closely together. And I think that close working relationship is threatened when the number of private bar attorneys actively involved in the program is reduced, or if they become dissatisfied or they lose interest. I think that's a genuine concern."

Dianne Molvig operates Access Information Service, a Madison research, writing and editing service. She is a frequent contributor to area publications.

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