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SPD payments to private bar could be delayed up to three months

By: dmc-admin//February 2, 2009//

SPD payments to private bar could be delayed up to three months

By: dmc-admin//February 2, 2009//

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ImageAttorney Michael E. Covey loves taking appointments from the Wisconsin State Public Defender’s Office.

He also does not mind waiting tables or bartending, which is good news given the SPD may have to delay paying private bar attorneys for up to three months.

According to SPD officials, the agency could have to defer approximately $5 million in reimbursements until the start of the next fiscal year. Money is expected to run out in mid-April and payment will not be available until July 1, at the earliest.

“Historically, there has been what we call a drought with private bar funding at the end of the second year of the budget cycle since the late ’80s,” said attorney Deborah M. Smith, Director of the SPD Assigned Counsel Division.

When the 2007-09 biennium budget bill passed, the private bar appropriation was fully funded at approximately $47.2 million, said Smith. But a provision allowed for $100 million to be reallocated from various agencies, including the SPD, into the general fund.

Approximately $2.3 million from the SPD’s private bar appropriation fund was redirected each year of the biennium, which is why the agency could have to defer payments for three months.

“Our expectation was that when the budget bill passed, that the gap had been closed,” Smith said. “But the provision allowed for money to be diverted each year.”

During the last budget cycle a $12.7 million gap was avoided through a $3 million allocation from the Department of Administration and an additional $9.7 million from the budget repair bill.

SPD officials said they are still working with the DOA to avoid a lapse this April.

Making Ends Meet

While the problem is not new to the SPD, it is for Covey who only began taking appointments in 2006. The 2002 graduate of the University of Madison Law School is a solo practitioner in Madison and does primarily criminal defense work.

Now almost 75 percent of his workload comes from public defender appointments, so Covey said he started planning last June for how he could survive a potential absence of income.

“I did my numbers and realized there was no way I could stay afloat unless I got a second job,” Covey said.

Based on his caseload last year and the fact that he has “35 to 50” active appointments, Covey said it is possible that as much as $15,000, or a quarter of his annual earnings, will have to be deferred until after July 1.

So three nights a week Covey works as a server or bartender at Pedro’s Mexican restaurant on the west side of Madison.

“The sole reason is to save up enough extra money … for that two or three months to pay the bills,” Covey said. “It’s working, but I’m exhausted.”

Covey said on several occasions he has gone from courtroom to the restaurant and ended up serving someone who he worked with or saw earlier in the day.

Smith said she did not know how many applications for reimbursement may have to be delayed, but situations like Covey’s are not that unusual. She said there are a number of solo and small firm attorneys who enjoy taking appointments, but also have to make ends meet.

The private bar reimbursement rate has remained at $40 per hour since 1995 and Smith said combined with the possibility of deferred payments, it is hard to recruit and retain attorneys who will take cases.

“It is not any easier when the private bar rate has not gone up, but gas, heating and grocery bills have,” Smith said.

Keeping Costs Down

In Covey’s case, he tries to keep overhead costs low by being a solo practitioner in the truest sense, but admitted that monthly expenses can quickly add up.

Although he moved his office out of his apartment and into a commercial space in October, Covey handles all the duties, including answering the phones, making the copies and taking out the garbage.

“The staff is just me,” Covey said. “But I’d say with everything — overhead, credit card and student loans — I’m still spending almost $5,000 a month.”

“I’ll probably pick up a fourth shift at the restaurant in April,” Covey said.

SPD Public Information Officer Randy Kraft said that the agency is again hoping to eliminate the ongoing problem in the next biennium. In its 2009-11 budget proposal, the agency requested an additional $2.9 million for its private bar appropriation budget.

The agency also asked to be exempt from the provision that will again allow $100 million to be drawn from some agencies during the biennium.

Kraft said if those two requests are met, the agency will not endure a lapse at the end of the next biennium.

Covey said regardless of how the next budget shakes out he intends to take SPD appointments as long as he is an attorney. But he also expects that by 2011, his private practice profits will be able to minimize the impact of any payment lapse.

As for his future in the restaurant business, Covey plans to call it a career this summer.

“It’s been fun and it’s a great place, but once Aug. 1 comes, I’ll happily put in my two week’s notice,” Covey said.

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