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ON THE DEFENSIVE: SPD to pay a price for short-term savings

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Attorneys who are appointed to cases by the Wisconsin State Public Defender’s Office are paid $40 per hour.

This wage is the lowest in the nation.

The rate has remained unchanged since 1978 and is now under attack. In recent months, the SPD has started cutting the bills of dozens of defense attorneys, transforming $40 per hour into something much less.

If this continues, there will be fewer experienced attorneys willing to take these difficult and challenging cases. As a result, the indigent will suffer immensely.

In making these arbitrary cuts, the SPD has announced that bill reductions are “not a commentary” on attorneys’ dedication, how they should practice law or their ability to handle SPD cases.

Nothing could be further from the truth.

Any cut to a bill is a direct attack on that attorney’s ability to practice law. Either the SPD feels the attorney is falsifying the bill or took longer to do something than was necessary.

The problem with this unsettling and myopic approach is that it fails to account for the unique nature of each case. The client, not the lawyer, decides whether a case goes to trial. And cases that go to trial often require many hours spent preparing and litigating.

Of course, some defendants have different needs than others, meaning they might require more jail visits and more communication. Each case also has its own complexities, and each lawyer has different levels of creativity.

Those who spend time looking for unique angles for their cases will not only secure better results but also will have substantially higher invoices.

Criminal defense lawyers seem to be the only attorneys who are systematically targeted in such a way. Unfortunately, most lawyers have no idea this is taking place.

What would the reaction be if some bureaucrat started cutting a percentage from the paychecks of prosecutors, the staff for public defenders or judges? What if that bureaucrat audited the time spent by judges across the state and started cutting judicial salaries because the bureaucrat felt the judge took too long on certain cases? What if that bureaucrat cut the salary of a prosecutor because it took too many hours to prosecute a rape case?

These actions might save the SPD a few thousand dollars in the short term, but the long-term ramifications will be devastating. The only lawyers left who still will take these cases will be new graduates or solo practitioners who aren’t getting hired for other cases. Ultimately, indigent defendants will be the ones to suffer as the quality of representation decreases.

4 comments

  1. Thanks for reaffirmance of my decision not to take any more SPD appointments outside of my home county. Case management from a distance is difficult and costly. During 12 years of SPD cases, I’ve been fired more than once by clients who didn’t think I was seeing them enough. The quasi pro bono rates of $40 per hour ($25 for travel) just isn’t worth it for the attention required of a sexual assault or attempt homicide case. BTW, I have yet to see an attorney from any law firm take a tough case pro bono in any county north of Highway 29. I understand the need for the belt tightening, but not at the cost of lower quality representation, especially for high stakes cases. Suggestion: Peg SPD compensation to the seriousness of the case. The higher up the felony ladder, the greater the compensation. I also don’t appreciate the biennial “drought” because of the legislature’s lack of funding. I’ll keep my 100+ jury trial and 34 years of criminal law experience close to home, thank you.

  2. This is an excellent article! I also agree with Atty. Filippo. He makes some good points. Cutting back on private-bar SPD rates means defendants are in for an even more unfair fight than they had in the first place. A trial should be a search for truth. If defendants’ counsel are not being paid what they need to defend their clients then they are are at a further disadvantage. Prosecutors already have a huge advantage in any criminal prosecution. They decide what to charge and work in the same court every day. Their offices are in the same building as the courts they serve and that alone is a great advantage. Over the past few years, we have seen taxes diverted to pay prosecutors but not the private bar. That is simply unfair. Tax money is limited but the Constitutional right to counsel is not. If a trial is going to be a fair battle, defendants’ counsel need to be properly compensated.

  3. I was begged to take a case where I was the 7th attorney to represent the defendant. He was in prison in Waupun, I work out of Durand and the case was in Balsam Lake. I got my claim for fees cut because I spent too many hours in one day on his case, where it’s 4 hours plus roundtrip to court and 9 hours plus roundtrip to prison. The PD Office says that any time over 12 hours a day is considered per se to be “unreasonable”, (obviously they have never prepared for a jury trial). He was filing his own motions, having his own communication with the judge and prosecutor, was very difficult to communicate with due to hearing problems and other mental health issues. I ended up saving the time and expense of a hotly contested jury trial by obtaining a plea agreement at the last moment. However, it’s the last time I take a challenging and difficult client, because it’s NOT WORTH THE HASSLE AND EMOTIONAL ENERGY.

  4. The brutality of this system represents a cruelty to some Wisconsin citizens not seen anywhere else. No bills have been paid beyond those submitted in mid-January 2013. You are in a bind not of your making: If you did not prepare those cases, OLR would be right there. If you do prepare them, you are shamed into thinking you did something wrong or unethical, and vouchers get cut for reasons that seem to have nothing to do with whether you did the work. They should be thanking you for dealing with a difficult client no one else wanted to represent. This system has needed a major reform since the 1990s but continues to operate in the same failing way. Stat production and keeping costs low above all does not produce justice. I am concerned about how attorneys are surviving a six month period of nonpayment with two and a half months to go. Getting out is very difficult; credit ratings are ruined for most attorneys shortly out of law school. And all these attorneys are trying to do is help someone less fortunate at a reduced rate, very, very reduced. Not even timely paying that is beyond appalling. No one deserves this treatment. If you tell this to anyone else, they are shocked. There is NO support for these droughts among other taxpayers. Unreasonable voucher cutting is a product of these droughts. It does not help and looks like “blame the victim.”

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