By Gretchen Schuldt
The state's lowest-in-the-nation pay rate for private attorneys who agree to represent indigent defendants in criminal cases would increase anywhere from $15 per hour to $30 per hour, under an Assembly bill being circulated in the State Capitol.
The new rates would range from $55 per hour to $70 per hour, depending on the difficulty and complexity of the case.
The bill, circulated for sponsors by State Reps. Ron Tusler (R-Harrison) and Evan Goyke (D-Milwaukee), also would allow the State Public Defender Board to set standards for and impose conditions upon private lawyers if they want to be appointed by the Public Defender's office to represent indigent clients.
Reasons for exclusion from appointments would include failing to meet minimum attorney performance standards; failing to comply with the Supreme Court rules of professional conduct for attorneys; and engaging in conduct contrary to the interests of clients, justice, or the state public defender. The state public defender also could exclude anyone about whom the public defender has concerns related to character, performance, ability, or behavior.
Tusler, addressing the pay issue, said that the state's $40-per-hour rate "is all-encompassing and unsustainable."
"It must cover the costs of filings, investigators, experts and other overhead costs in addition to the time an attorney must spend preparing for, and appearing in, court," he wrote in a memo to his colleagues.
The current rate "leaves attorneys barely breaking even on most cases effectively resulting in attorneys who take public defender appointments working for free," he said.
A 2015 study by the Sixth Amendment Center showed that 49.4% of public defender-appointed attorneys took fewer cases than in the past and 6.8% of survey respondents no longer took public defender appointments at all, Tusler said.
A group of lawyers filed a petition with the State Supreme Court seeking a $100-per-hour rate for private bar lawyers, but that would cost the state $31.8 million per year, Tusler said.
The $55-$70 rate envisioned in the bill would take effect Jan. 1, 2019, Tusler wrote, and would cost $19.4 million annually.
Seven states have been sued over low reimbursement rates, Tusler wrote. In Wisconsin, legislators from both sides of the aisle have raised questions and expressed concern about the state's low pay.
The Wisconsin Supreme Court in the past has declined to use its authority to provide pay raises to lawyers appointed to the Public Defender's office, though justices have said the existing rate is too low.
"Representative Goyke and I ask for your close consideration of this critical issue and help us address it before the decision is made by the Wisconsin Supreme Court without legislative input and before an ineffective assistance of counsel claim is filed as a result of our inaction to address this problem," Tusler wrote.
Help WJI advocate for justice in Wisconsin