Private attorney finds meaning running SPD Board for 20 years

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Q & A with Daniel M. Berkos

Limited income for private attorneys, annual budget constraints and difficult clients are trademarks of the State Public Defender’s Office in Wisconsin. But it is those challenges that make the job worthwhile, according to attorney Daniel M. Berkos.

Since April 1987, Berkos has been chairman of the Public Defender Board and championed the needs of an organization which handled in excess of 160,000 cases last year. In addition to personally managing almost 100 public defender cases annually and investing 350 hours, Berkos, a Chicago native, maintains a private practice in Mauston, Wis., where he has lived since graduating from Lewis U-Glen Ellyn Law School in 1978.

Set to attend his 20th SPD Annual Conference on Oct. 11-12, Berkos sat down at his office in Mauston with Wisconsin Law Journal reporter Jack Zemlicka to discuss the challenges in attracting private attorneys to SPD cases, how his relationship with Tommy Thompson inspired him to join the board and why he chose to establish his practice in a town of 4,200 people.

Wisconsin Law Journal: You will be celebrating your 20th anniversary as chair of the SPD Board. What is the biggest change you have seen during your tenure?

Dan Berkos: Probably the largest change I’ve seen in the 20 years is the mutual respect we’ve built up with the Legislature. I think one of the problems we had when I came on board was it was much more of a political issue in dealing with the public defender’s office and they didn’t really understand what we did.

Basically, the way (the Legislature) knew us was as an agency that represented guilty people and wasted tax dollars, but we have to give them money. We spent a good 10 to 12 years working very hard to educate the legislators on how our agency functions, why we have to do what we do and what the cost effects of it are. We got them to the point that they understand that the courts don’t operate independently, the DA’s don’t act independently, we don’t act independently — it’s all together. So when new legislation is passed to make rent absconders criminal, that effects our budget and they never really put that together before.

WLJ: Have you seen a significant rise in SPD appointments during the last decade and if so, how has that impacted the processing of cases?

Berkos: Historically, we’ve had issues with shortfalls in our budget for things outside of our control, a 10 or 12 percent increase in caseload that nobody budgeted for, because you can’t predict it. It’s funny, since our numbers really aren’t generated by crime rates because those can go down and filings can go up. Notoriously, when serious crime may be down, DA’s still have to fill that time and now they charge stuff that before might have been pushed off as ordinance violations. So our caseloads continually increase.

Our staff attorneys are mandated to handle X number of cases, so when we bring an attorney in, we don’t bring them on to pick up caseload, that attorney brings a caseload with them. We call it bringing a backpack with them because when they come in they’ve got 400 cases in their backpack already. The staff handles between 120 and 140 percent of what is mandated and the rest goes out to private bar.

Routinely the most time-consuming cases, like homicides, actually work against staff because they can’t handle their regular caseload and those usually go out to private bar, which costs us more money.

WLJ:You are on the appointment list for taking private bar cases assigned by the SPD. How difficult is it for the SPD to compete with the private bar financially when $40 an hour rarely covers most overhead for private practitioners?

Berkos: It’s awful. You can’t run an office on $40 an hour. We did a study about 10 years ago which revealed that the average cost to run an office was about $60. I’m guessing it’s $80 or $90 now. So clearly when an attorney takes a public defender case, they are losing money. And a lot of attorneys say, ‘I can’t afford to do that anymore,’ and we understand that.

I’ve always been one of those people that say, ‘Yeah, I lose money when I take one, but I do owe something to the system.’ Ironically, for a long time we had a decline in private bar attorneys, but it’s suddenly going back up now. People are starting to see the value of what is essentially pro bono work. State Bar has been pushing this pro bono stuff for the past several years and that has certainly helped.

WLJ: What are some of the legislative challenges you are facing?

Berkos: One of our biggest issues is always the private bar rate. We consistently
tried to get that higher. At one point, about a decade ago we had it up to $50 an hour, but it got cut back down. We’ve tried to tie the private bar rate to the Supreme Court’s [mandated county] rate, so that way you would have a natural increase as time goes on. We’ve haven’t been successful with that, basically because of the dollars involved.

WLJ: You are a native of Chicago. How did you end up practicing in Mauston, Wis.?

Berkos: When I was kid we used to vacation up here at a dude ranch just outside of town in the late ’50s. When I was going to high school and college I would spend my summers working up there and I just decided that I kind liked the area. Literally, the day I graduated from law school, I moved up here. I didn’t have a job except for at the resort. I knew the town, but didn’t really know anybody and one of the first people I talked to was Tommy Thompson. I walked in his office one day and two days later I was working there. That was 1979 and I’ve never looked back, although I am still a Bears fan. I do get criticized for that.

WLJ: How have your voluntary obligations with the SPD impacted your private practice?

Berkos: In some respect it’s helped a lot because when we do get these private bar appeals, attorneys are speaking to someone who has the experience of doing these cases for a lot of years, so I know the difficulties that come with clients. Also what I’ve found is I really get a lot of private clients as a result of handling public defender cases. Whether it is through people in the jail, or newspaper articles or big cases that you’ve handled, you generate clients to some extent and write off part of that towards advertising. It’s not free advertising and it can take away from private practice, but I wouldn’t trade it for anything.

WLJ: You started in private practice at the same firm as Tommy Thompson. What kind of influence did he have on you?

Berkos: When I started with him in Mauston in 1979, he was taking public defender cases at the time and that’s how I got into taking them. So when Tommy became governor he asked me if I would be interested in serving on the board and I was there for one year and then was elected the chair. I’ve been here ever since and I suspect nobody else wants the job.

WLJ: To what extent did you lobby for budgetary increases for the SPD during his terms as governor?

Berkos: You would think it would be easy, because we were friends and still are. But the one thing about Tommy is he’s pretty fiscally responsible and while the friendship gave you access, it didn’t always get you what you wanted. There was one year when we took a 20-percent cut in our budget across the board, so I don’t think we got any special favors. That relationship did help to foster this trust we have now and get us access to the Legislature. When Gov. Doyle came on, we really never missed a beat. Actually, I was a little bit surprised he left me on the board because he replaced seven out of nine. But I’ve been re-appointed twice since he’s been governor and he is right along with us and knows what we were doing.

WLJ: What has kept you with the SPD for 20 years?

Berkos: A lot of people might think, ‘Do I really want to handle a homicide case for $40 an hour?’ From my (perspective), absolutely, I love that work. One of the things that people are always concerned about is that they have a public defender and he’s only getting paid $40 an hour, so he’s not going to even work that hard. For the most part, I don’t think anyone who handles our cases really looks at ‘I am getting $40 here, I could get $120 over there, which one am I going to spend my time on?’

I’ll (remain chairman) pretty much as long as someone will let me. I’ve met so many good people and dealing with the Legislature and dealing with public officials … has been fun. It’s been a great learning experience for everyone. Had I not been reappointed by the governor, I would have really missed it.