For those who don’t know me, I am a criminal defense attorney in Wisconsin. I am currently the President of the Wisconsin Association of Criminal Defense Lawyers (WACDL). Because of this position, and the fact that I’ve practiced exclusively in the criminal defense field for 12 years, my posts will generally focus on defense-related issues.
In that vein, perhaps the most pressing criminal defense-related issue in Wisconsin remains the unconscionably low rate of compensation paid to lawyers who take appointments from the State Public Defender’s Office (SPD).
Here’s the nutshell version of what currently happens. Indigent defendants are constitutionally guaranteed representation by lawyers who work for the SPD. But the SPD obviously can’t handle all of the cases assigned to the agency. For one, there are cases with co-defendants, where ethical rules preventing conflicts of interest would preclude one “firm” from representing both defendants. In other situations, a flood of criminal prosecutions renders the SPD staff unable to handle all of the cases. Consequently, private attorneys will sometimes step up to the plate, and agree to take these cases.
These cases, known as SPD appointments, are paid at a rate of $40 an hour. The average lawyer, working full time, ought to bill around 2,000 hours per year. Thus, if a lawyer were to make her entire living on SPD appointments, the lawyer would generate $80,000 per year. Now subtract from $80,000 the cost of an office, Westlaw/Lexis, a receptionist or secretary, bar dues, malpractice insurance, health insurance and taxes.
The $40 an hour rate has never once been adjusted for inflation and has remained unchanged for 30 years. Practically speaking, there are lawyers who have started and concluded their careers without seeing this rate change.
Wisconsin’s low rate of pay is now the lowest hourly rate in the country. Federal appointments, for example, are paid at a rate of $125 an hour. The perception nationally is that Wisconsin no longer values its constitutional obligation of ensuring that indigent defendants receive the effective assistance of counsel. To be sure, there are good lawyers who continue to take appointed cases. But the economic reality of the situation is that fewer and fewer experienced attorneys are willing to make the financial sacrifice to take these cases when the rate of pay fails to even cover overhead.
There are three realistic ways to respond to this crisis. First, lawyers collectively could agree not to take SPD appointments generally, or a category of SPD appointments specifically (say homicide cases). Lawyers who have tried this approach in other jurisdictions have been threatened with anti-trust prosecutions, however. Also, there are over 450 lawyers actively taking SPD appointments. Many lawyers rely on these appointments as a necessary income stream. It would be impossible to secure this type of collective action. Second, lawyers can continue to try to bring awareness to the issue with the hope that state legislators will comprehend this impending crisis and take action to correct it. Third, the Wisconsin Supreme Court can be asked to use its rule making authority to 1) declare the current rate constitutionally deficient and 2) direct that the legislature address the issue forthwith.
In my twelve years of practice I have watched as fewer and fewer experienced attorneys remain willing to take SPD appointments. As the problem exacerbates, the SPD will have increasing difficulty finding competent counsel to handle their more serious and complex cases. The legislature or Supreme Court ought to act before it reaches a breaking point.