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Lawyers gearing up to defend request to increase private bar rate

By: Erika Strebel, [email protected]//July 20, 2017//

Lawyers gearing up to defend request to increase private bar rate

By: Erika Strebel, [email protected]//July 20, 2017//

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John Birdsall, a criminal-defense lawyer out of Milwaukee, is among a group of petitioners who have asked the state Supreme Court to consider raising the compensation rate for private lawyers who are appointed to represent indigent criminal defendants. (Staff photo by Kevin Harnack)
John Birdsall, a criminal-defense lawyer out of Milwaukee, is among a group of petitioners who have asked the state Supreme Court to consider raising the compensation rate for private lawyers who are appointed to represent indigent criminal defendants. (Staff photo by Kevin Harnack)

Long stagnant, the compensation rate for private lawyers representing indigent criminal defendants will go before the Wisconsin Supreme Court for a possible increase in the court’s next term.

Nothing is guaranteed, though, especially since the state’s high court has rejected such a proposal before. Six years ago, it declined a nearly identical request for nearly raises.

In doing so, the court noted the current rates are set by legislative enactment, which it argued it had no authority to find unreasonable. At the same time, however, the court acknowledged that it appears as though the state’s criminal justice system is reaching a constitutional crisis.

In coming forward this year with much the same proposal, the petitioners have made at least one big change. They have made sure to arm themselves with data meant to persuade the court that the justice system is already embroiled in a constitutional crisis.

“The last time, all we had was anecdotal evidence and the court said as much in its opinion,” said John Birdsall, one of the petition’s authors. “This time we’ve got two comprehensive studies that put flesh on the bones of the argument. … And they detail meticulously why this is a problem and why the court solution is necessary given the legislative inaction.”

Among other things, Birdsall and his colleagues are arguing that Wisconsin’s current system prevents indigent criminal defendants from getting the legal representation guaranteed them by the Sixth Amendment.

Their arguments hark back to the landmark case of Gideon v. Wainright, which saw the U.S. Supreme Court unanimously declare that the right to counsel guaranteed by the Sixth Amendment requires state courts to appoint and pay for lawyers to represent indigent criminal defendants. The decision, handed down in 1963, prompted Wisconsin to set up one of the nation’s first state public defender systems two years later.

In Wisconsin, it’s not always the courts that will appoint lawyers to represent indigent criminal defendants. Sometimes it’s the State Public Defender, especially when that office has a conflict of interest that might prevent it form providing adequate representation. Lawyers enlisted in these circumstances are typically paid $40 per hour, a rate set by state statute under section 977.09. In some counties, the SPD will also enter into flat-rate contracts for these services.

Such private bar appointments make up about 40 percent of SPD cases.

Although other states and the federal system have raised their rates over the past two decades in order to keep up with inflation and overhead costs, Wisconsin’s last change came as far back as 1995. Rather than increase the rate, lawmakers decided then to lower it from $50 an hour.

Conflicts of interest at the SPD are not the only reason why a lawyer might be enlisted to represent an indigent criminal defendant. The courts themselves will make an appointment, say, when a defendant doesn’t meet the financial requirements that would allow him to benefit from a public attorney. Lawyers who take cases in these circumstances are paid $70 an hour.

Under the latest proposal for an increase, which has received support not only from the state bar but also individual lawyers and law professors from around Wisconsin, both of those basic rates would go up.

The first part of the request calls for increasing the court-appointment rate to $100 an hour and tying it to the consumer-price index.

Appointed counsel rates across the nation

30

the number of states, including Wisconsin, that set uniform appointed counsel rates by statute, regulation or rule

26

the number of states that have a cap or maximum fee

9

the number of states that give trial courts the discretion to award reasonable fees

20

the number of states that let counties enter flat fee contracts with private attorneys

Source: Gideon at 50: A Three-Part Examination of Indigent Defense in America, National Association of Criminal Defense Lawyers, March 2013

Because it’s well within the Supreme Court’s power to change its own rules, that change is not being greeted with as much controversy as the second part of the request. That would have the justices declare unreasonable any compensation rate for SPD-appointed attorneys that was below the rate set for court-appointed lawyers.

The reason for the controversy is that the second part of the request would essentially put state lawmakers under pressure to raise the private bar rate for SPD-appointed attorneys to at least $100 an hour and prohibit the SPD from entering flat-rate contracts.

Lawmakers could very well be loath to have their hands forced in this way. The SPD and other entities have been asking lawmakers for a private bar-rate increase every biennium since 1995 but so far have not been successful.

The state Supreme Court appeared similarly hesitant at an open-rules conference held on June 21, although it ultimately decided to hear the proposal.

“I’m not sure this court has the authority to take up a matter that’s in this posture,” said Chief Justice Pat Roggensack. “I am not sure we have the authority to tell the Legislature that the rate is unreasonable and say what it should be.”

But Justice Michael Gableman, who seconded the motion to discuss the proposal at a public hearing, replied that the court simply could not wash its hands of the matter.

“I think it is consistent with our jobs as collective administrators of justice in this state to look at this issue,” he said.

The proposal will most likely be heard in the fall or winter. Birdsall and the authors of the proposal will use the intervening time to polish up their arguments.

“We’re going to look for additional evidence to bring to the court to help them understand the depth of the problem if our petition hadn’t already done that,” he said.

Birdsall said he and his fellow supporters would also be talking to legislators.

“That would actually be the preferred approach because you can be more creative in the legislative process than you can be with a court rule,” he said. “This petition would be an imperfect way to address the problem. But it’s the only way we have since the Legislature had refused to act functionally for 40 years.”

Falling behind

Supporters of a proposed increase in the private bar rate in Wisconsin are pointing to a study commissioned by the Wisconsin Association of Criminal Defense Lawyers and released in 2014. The study examined not only compensation for appointed attorneys in the state and compared it with the rates paid in other states but also included a statewide survey of criminal defense attorneys. The authors of the study noted that the rates paid in other states have been challenged in the last two decades, leading to increases.

Here’s what is paid in other states:

chart-072017

CREDIT: Source: Justice Shortchanged: Assigned Counsel Compensation in Wisconsin, Sixth Amendment Center

 

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