Defense lawyers preparing for lawsuit over pay

Birdsall

The National Association of Criminal Defense Lawyers is getting ready "to pursue a class action lawsuit" if the state does not adequately increase the amount the State Public Defender's Office (SPD) pays private lawyers to represent indigent defendants in criminal cases, according to a Milwaukee lawyer.

"The NACDL leadership has made it clear that $70/hour is constitutionally insufficient and will prompt a lawsuit," defense lawyer John Birdsall wrote in an email to his colleagues around the state. "We have already identified several potential plaintiffs. NACDL is securing a national law firm to pursue the class action, if necessary. "

NACDL represents thousands of lawyers in the United States and other countries.

SPD pays $40 per hour, the lowest rate in the nation, and has proposed raising the rate to $70 per hour. 

SPD proposed the rate increase as part of its 2019-21 budget request. The $70 per hour rate also was included in a joint proposal put forward by SPD, the Wisconsin District Attorney’s Association, the Association of State Prosecutors, the Department of Justice, and Director of State Court’s Office. 

The Wisconsin Association of Criminal Defense Lawyers was not consulted about the proposal, said Birdsall, a leader in the effort to raise the rate.

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SPD appoints private lawyers to take cases when its own attorneys are overburdened or have a conflict.

More and more attorneys are refusing to accept cases at the $40 rate. That means pre-trial defendants are sitting in jail longer without lawyers to help them or with lawyers who are inexperienced or who cannot provide adequate representation. The situation is recognized as a looming constitutional crisis.

Birdsall said in his email that he and defense lawyer Hank Schultz, who also has been heavily involved in efforts to increase the $40 rate, have been working on a legislative proposal for variable rates ranging from $100 per hour to $140 per hour, depending on the seriousness and type of case involved. The proposal also would include automatic inflationary increases.

"Given how rotten things are now $70/ hr. might seem OK," Birdsall wrote. "But remember, SCOW (Supreme Court of Wisconsin) has already agreed with us that $100/ hr. is the minimum wage for indigent criminal defense work. And the most complicated cases deserve more than minimum wage compensation. Our plan is a permanent fix because it is indexed – plus the private bar will have an ongoing independent budget voice."

If SPD cannot find a private lawyer to take a case for $40 per hour, the judge in a case can appoint a lawyer for $70 an hour. The State Supreme Court this year ordered that the rate be increased to $100 per hour starting on Jan. 1, 2020. The Court also refused to give SPD-appointed lawyers any raise at all, though justices recognized the lawyers were underpaid.

"We finally have the attention of some decision-makers so the importance of this moment cannot be overstated," Birdsall wrote. "Whatever happens we will likely have to live with it for the next 20-30 years. Seventy dollars/hour is insufficient to fund quality legal representation. Already, in multiple Wisconsin counties, judges can’t find lawyers who will take $100/ hr." ​