SPD budget seeks more staff attorneys, fewer private bar

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Since 1995, the Wisconsin State Public Defender’s Office has been unable to secure an increase in the compensation rate for private bar attorneys.

So the agency is taking a slightly different approach with its next budget proposal – reduce the number of private bar attorneys needed for appointments by adding about 122 SPD staff attorneys.

With an effective date of June 20, 2011, the $18.2 million proposal would not fiscally affect the 2009-11, $170 million SPD budget requested by the Public Defender Board.

That proposal was recently submitted to Gov. Jim Doyle.

Approximately $9.1 million annually would be attached to the 2011-13 budget, said SPD Budget Director Megan Christiansen, as part of the agency’s costs moving forward to fund additional staff and to increase the private bar rate.

The SPD’s recent 2009-11 biennial budget proposal still requests a raise for private practice lawyers taking cases from $40 per hour to $70 per hour. However, it also plans to cut the percentage of private bar appointments in half in an effort to secure better representation for clients and save taxpayers money.

Deborah M. Smith, director of the SPD’s Assigned Counsel Division, said the proposal is designed to improve representation for clients and reduce costs.

“The main thing here is when we’ve tried to get a private bar rate increase in the past obstacles have been both the cost and concerns expressed to us about the quality of the private bar,” said Smith. “This proposal addresses both cost and quality.”

Christiansen noted that authorization of the additional staff positions, along with the rate increase, would send a signal that the Legislature intends to fund them.

“The fact is that this would be a cost-to-continue item, which is a regular aspect of budgeting,” said Christiansen.

In-House Cases, Counsel

One of the key components of the budget plan delivered to Gov. Jim Doyle’s office on Sept. 16 calls for the SPD to increase the ratio of cases it handles in-house.

In fiscal year 2008, only 56 percent of cases were processed by staff attorneys, according to SPD Communications Director Randy Kraft, largely due to an increase in the number of case openings coupled with stagnant staffing levels.

From 1995 to 2007, the state did not budget any new staff attorney positions. During that same time, case openings increased from 120,000 to more than 140,000.

While nine staff attorney positions were created by the current biennial budget, the SPD proposal calls for an additional 122.5 to reach its goal of handling 75 percent of cases annually within the agency.

The addition would be a 39 percent increase to the current total of 316.5 full-time staff attorneys employed by the SPD.

So why hire more than 100 new attorneys when there are more than 1,000 registered to take appointments in the private bar?

According to SPD Board Chairman Daniel M. Berkos, it’s simply a matter of dollars and sense.

Prior the last budget cycle, the SPD proposed a $70 per hour compensation increase for private bar attorneys, with a price tag of close to $15 million annually. Under the new plan, with an average starting salary of $48,458, it would cost approximately $5.8 million to fund 122 new staff attorney positions.

“Reducing private bar appointments is really geared at more of a budget issue since it is more cost effective to have a case handled by staff than the private bar,” said Berkos, who accepts about 100 appointments annually.

Good Help Hard to Find?

But Smith also suggested clients could be better served with an SPD attorney, rather than one from the private bar pool.

Since 2002, more than 50 attorneys who were on the SPD private bar appointment list were disciplined by the Office of Lawyer Regulation, according to Smith.

Kraft noted that in felony cases, clients with private bar attorneys request a withdrawal twice as often as those with staff attorneys.

“There are many good lawyers on the list, but the overall quality of the private bar is variable,” said Smith.

The low rate of compensation likely prompts some private bar attorneys to be “self-selecting,” said Smith, and a number do not take any appointments

While there may occasionally be attorneys who don’t work out, Berkos said unreliable representation is not a significant problem among private bar appointees.

The frustration of a low hourly wage is nothing new, but most private bar attorneys still support the SPD, said Berkos.

“That being said, there are always a few grumblers who routinely think we could do more than we are, but they continue to take our cases regardless,” said Berkos.

Pooling Resources

To what extent the SPD would immediately hire additional attorneys, should the provision survive through final adoption of the next state budget, is unknown, according to Smith.

But the majority would likely come in the form of recent law school graduates.

Smith admitted it would be a challenge to hire a large quantity of staff attorneys at once, but she said the agency won’t compromise its hiring standards.

She also suggested that the agency would need to reallocate resources to properly train new attorneys.

“We would not have proposed this if we did not think we could pull it off,” said Smith.

A call in to the governor’s office seeking comment on the proposal was not returned.

As to whether the SPD will ever handle its entire caseload in-house, Berkos said that seems unlikely, despite the proposed changes.

“Our concern is if we were to go to an all staff agency, we would have a very difficult time getting private bar attorneys to come back if we needed to include them again,” said Berkos.