Public Defender proposes $70 private bar rate

By Gretchen Schuldt

​The State Public Defender's Office is proposing to increase from $40 to $70 per hour the rate it pays private bar attorneys to represent defendants who cannot afford to hire attorneys.

It is at least the office's 19th formal attempt to increase the $40 per hour rate since 1999, according to information provided earlier by the State Public Defender's Office (SPD).

The $40 rate, which is the lowest in the nation, "is impeding the SPD’s ability to recruit and retain private bar attorneys who consistently accept appointments and provide effective representation," the agency said in its 2019-21 budget request. "It also has a direct impact on county expenses through increased jail costs and costs for appointment of counsel at county expense."

The pay increase, which would take effect July 1, 2019, would cost $33.2 million over the biennium.

The agency suggested as an alternative that the pay raise be delayed until Jan. 1, 2020. That would reduce the cost to $25.3 million, the SPD said in its budget request.

Hank Schultz, a lawyer who has been heavily involved in working for a private bar pay increase, said the proposal is a stop-gap measure that does not address the basic problem.

"In a few years we'll be in the same place we are now," he said in an interview. "This is not a meaningful, long-term solution."

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​SPD appoints lawyers when its own caseload is too great, or when it has a conflict. When it cannot find a lawyer willing to take a case at $40 per hour, which is occurring with increasing frequency, judges are supposed to appoint lawyers at county expense. Some judges already are paying $100 per hour or more for those lawyers, Schultz said.

The minimum rate for court-appointed lawyers is $70 per hour.

In some counties, defendants remain in jail while they await appointment of counsel by either the SPD or a judge. Some judges proceed with hearings even if no lawyer is available. An 18-year-old inmate in the Wood County Jail hanged himself last month after trying to represent himself at a preliminary hearing – no lawyer was there to help him.

The Wisconsin Association of Criminal Defense Lawyers asked the State Supreme Court earlier this year to increase the $40 rate, but the Court, while acknowledging the rate was too low, declined to act, instead deferring to the Legislature. The court did agree to increase the rate paid to court-appointed lawyers from $70 to $100 per hour, but delayed implementation until Jan. 1, 2020.

"Considering the $40 rate and the cost of operating a law practice, it is unsurprising that there are fewer attorneys willing to accept SPD appointments," the Public Defender’s Office said in its budget request.

The $40 rate is not enough to cover the average attorney's overhead costs, SPD said, and other attorneys used by the state and federal governments are paid more.

"Defense attorneys are paid $140 per hour for noncapital federal cases," SPD said. "The Office of Lawyer Regulation uses outside counsel in some disciplinary matters and pays them $70 per hour." 

Finding lawyers to represent clients in the northern part of the state is especially challenging, SPD said.

​Bayfield County cases are now assigned to out-of-county lawyers 99 percent of the time, SPD said. In fiscal 2012, Ashland County appointed 28 percent of cases to out-of-county private attorneys; by 2017, that number had risen to 73 percent.