Indigent Defense and the Private Bar Rate Debate

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Category: Constitutional Interpretation, Criminal Law & Process, Uncategorized, Wisconsin Criminal Law & Process, Wisconsin Law & Legal System
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The Wisconsin State Public Defender (SPD) currently pays $40 per hour to private bar attorneys who represent indigent citizens accused of crimes.  This rate has been unchanged for decades, and lawyers are lobbying for an increase.  However, aside from horrible timing—this latest plea for more money coincides with Wisconsin’s $2.5 billion budget deficit—some of the arguments in support of the rate increase aren’t terribly persuasive, and should be abandoned.  But more significantly, the fact that lawyers have to make these arguments in the first place is merely a symptom of a larger problem: We live in a culture that misunderstands and undervalues our Constitutional rights.

But first, let’s review and grade a few of the more popular arguments:

Argument # 1: “Auto mechanics and plumbers earn much more than the $40 per hour that we lawyers are paid.” Grade: C. This statement is true, and has a certain amount of shock value, but it is unlikely to persuade anyone who doesn’t have a law degree.  The problem for lawyers is that mechanics and plumbers find themselves in a much more favorable position in the supply and demand analysis.  Conversely, in most parts of Wisconsin there is a seemingly inexhaustible supply of lawyers willing to work for the $40 per hour.

Argument # 2: “Other court-appointed lawyers in Wisconsin earn $70 per hour, and our circuit court judges earn, on average, $128,000 per year.” Grade: B+. From an economic standpoint, this argument is better because we’re now comparing apples to apples (or lawyers to lawyers).  And these other lawyers and judges get the benefit of a legislated, rather than a market-driven, pay rate, so why shouldn’t defense lawyers get the same?  But the counter-argument is that the focus should be on the defendants, not the defense lawyers, and the defendants are already receiving competent representation.

Argument #3: “I am losing money on my $40 per hour SPD appointments because my office overhead rate is $50 per hour.” Grade: D. This argument ignores the difference between fixed and variable overhead.  In other words, your office rent, Lexis subscription, and advertising costs stay the same whether you take an SPD appointment or not, and the additional SPD income actually helps pay for your existing, fixed overhead.  So, it’s not possible to lose money on an SPD case.

Argument #4: “The $40 per hour rate results in ineffective assistance of counsel.”  Grade: B–. A colleague of mine hates this argument because, essentially, attorneys are saying “We’re ineffective, now give us more money.”  But, there might be some evidence to support this argument.  For example, if SPD appointed attorneys from the private bar are found to be “ineffective” significantly more often than their SPD counterparts, then there might be something to it.  But the bigger problem could be that, in some Wisconsin counties, private bar attorneys agree to represent a fixed number of indigent defendants for a flat fee.  Depending on how many of those defendants want to go to trial, this could result in a forced hourly rate of $30, $20, or even less.  On its face, this type of pay structure, unlike the hourly rate structure, seems to create an incentive to settle cases short of trial, which is potentially at odds with client interests.

But the fact that attorneys have to make these arguments in the first place highlights the underlying problem: We live in a culture that, to put it mildly, doesn’t value lawyers.  Our citizens generally have a high opinion of doctors, farmers, teachers, firefighters, and police, but not lawyers—and, more to the point, certainly not criminal defense lawyers.

One of the reasons for this is that these other professionals have created a positive public image for themselves and their services, and they often start their campaigns very early in our formative years.  (Remember meeting “Deputy Friendly” in grade school?)  Conversely, the Constitutional rights that criminal defense lawyers protect are grossly misunderstood, and are commonly dismissed as mere loopholes that protect the guilty.  Until this misconception is changed through early and rigorous education about the significance of our fundamental rights—and about the danger to each of us if those rights aren’t protected for all of us—the well-deserved rate increase may continue to elude the private bar.

Michael D. Cicchini is a criminal defense lawyer and author of But They Didn’t Read Me My Rights! Myths, Oddities, and Lies about Our Legal System (Prometheus Books, 2010) and numerous articles on criminal and constitutional law, available here.

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8 Responses to “Indigent Defense and the Private Bar Rate Debate”

  1. Excellent! No one thinks about the amount of work that these Attorney’s do for the people they represent.

  2. Kristen Bongard Says:

    I disagree with your assessment of argument #3. You can be bringing in money for a case and still be expending more for that particular case than you are getting in return. In order to continue taking the SPD cases, the lawyer would either need to raise her private rates to cover the loss on the SPD cases, or lower the overhead for her office. In a way, all her other cases are subsidizing the SPD cases.

    It is much the same as the situation hospitals argue they face treating the uninsured medicare patients. The reimbursement rate is less than what it costs to treat the patient, so the rate of service for other patients is increased. At least that is their argument.

    A more reasonable rate of pay could result in a greater variety of attorneys signing up to take cases, from the very new to the very experienced. Or, perhaps, decrease the rate of legal services to other clients, if we follow the health care argument.

  3. Cathy Ritterbusch Says:

    I think the larger issue is less about our community failing to value lawyers, as it is about dismissing people accused of a crime. If we were pushing for say, attorneys for veterans, or even for just plain old poor people mired in a landlord-tenant dispute, the response might be different. But the underlying assumption is that if one is wrapped up in the criminal justice system, one must have “done something” and therefore one’s rights are automatically diminished. We as a community vastly misunderstand the trade-off in economic resources made by failing to provide adequate representation. Heart and minds are won by pulling at pursestrings, but who will measure and report on the resources saved by holding police accountable to high ethical standards, and reducing incarceration rates (which are by the way, the highest in the industrialized world, by ALOT)? Even then, long term savings don’t promise immediate political pay-off, because Johnny and Susie Constituents mostly just want to know whether they’re going to be able to afford to buy the latest iPhone once they get their tax refund. So yes, let’s work toward creating a civic-minded society that values education, democracy and human rights more than consumables, media input and stock options. In the meantime, I predict that the proposed pay raise for public defenders is heading toward the same destination as that high-speed train.

  4. John H. Short Says:

    You only get a “C” on your analysis of argument #3. I quit accepting SPD appointments after 20 years because I had all the civil, mainly family, work I could handle. My overhead rate was about 50% of my gross receipts, at that time about $80 per billable hour collected. As a result I did pay $40 per hour for every SPD case I took. In addition, criminal law took a lot of time to stay current on with about 50% of Court of Appeals opinions dealing with criminal issues. Frankly, I couldn’t afford the time to stay competent on $40.00/hour.

  5. I cannot afford to take a public defender case. How can I choose between working for $180/hr instead of $40.00. The problem is then created that young inexperienced lawyers or low-overhead attorney mill shops are the only option for this. If you believe that creates the best option for indigent defendants you are mistaken. I will take a $70.00 case for a court as a favor. I will not turn my office into a clinic. Your arguments ignore the finite amount of time that you have. I cannot offer a two hundred dollar service for $40 — simple as that.

  6. Here is the best comparison, one not made at all. Compare the total compensation (salary, benefits and vacation) of SPD lawyers since the $40/hour rate was enacted with what they make today. My guess is SPD attorneys make at least three times as much today as they did previously. So not only does the public not value these private lawyers, who do almost half of the SPD’s work, neither does the bureaucratic system we have in place to protect criminal defendants’ rights.

  7. Kristen Bongard Says:

    Cathy, I think you might be surprised how little sympathy there is for the poor, with their cell phones and cable tv. Maybe if they’d just stop having kids they wouldn’t be in this mess in the first place.

    I hope it’s clear that I don’t feel that way myself. I’m just parroting back some of the more disgusting arguments I hear.

  8. Andrew M Morgan Says:

    The rate is what it is because the bar as a whole, and the criminal defense bar in particular, finds itself confused, conflicted, and divided over the issue.

    We are in a singular position to understand the challenge. We witness up close the impact of law in action, and can weigh that from the perspective of our legal training. We see civil rights pummeled in the courts and in the legislature, in the executive branch, in the media, in the discourse of the public. If we don’t step up, the fight is lost.

    The front line of the fight is indigent defense, because most accused of crimes are indigent and the law created becomes the law for everyone.

    The State Public Defender fills its core mission expertly but narrowly, and under constant budgetary siege. It finds itself forced to support increased budgets for an expanding police state, so it can seek parity. It publicly slams private bar participation in indigent defense, positioning itself as the low cost provider. It shoves aside smaller voices.

    This approach centralizes control over defense of individual rights, exactly the opposite of the purpose of those rights, the protection of the individual from centralized control. And this approach has effects beyond the indigent. It eviscerates the infrastructure of independent and dedicated criminal defense counsel affordable to the middle class.

    Meanwhile, many in the bar believe the way to raise the rate is through supply and demand, by refusing to take indigent appointments. This shamefully abandons our role. The Bill of Rights needs more than merchants or mercenaries, at the mercy of the market. Advocates fight, and understand that part of the fight is securing the resources to fight.

    None of us can do this alone. We need to reignite a passion for liberty in ourselves, in the bar, and in the hearts and minds of our communities.

    Nor does seeking sustainable pay for ourselves leach scarce public resources from other causes. Helping individuals be free and strong and productive for themselves and their families helps all causes.

    Injustice is always more expensive than justice.

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