One of the longstanding barriers to giving private bar attorneys a raise for taking State Public Defender appointments has been cost.
Facing a $9 million shortfall in the next budget, the SPD has little hope of making timely payments to attorneys that accept appointments, let alone raising the current $40 per hour rate.
With that in mind, attorneys say that increasing SPD fees to clients may be an option. Madison attorney John S. Skilton is one who favors full state funding of previously proposed increases to the appointment rate, but he admitted that other solutions should be considered.
As a member of the special legislative committee on Criminal Justice Funding and Strategies, Skilton said the concept of increasing SPD fees and collections from clients to generate more revenue for private bar payments could be discussed.
“I think it is on the table with respect to the legislative committee,” he said. “I think it’s a very good question and one which will be asked.”
In fiscal year 2010, the SPD collected $1.6 million through a combination of its Client Accounts Unit, a state-contracted collection agency and other court-related collections. More than $1.3 million went toward the private bar appropriation, which is still expected to run out early next year.
But it’s not as simple as raising fees for clients to bring in new revenue. The Wisconsin Department of Administration has determined that 99 percent of the agency’s accounts are uncollectable, SPD Public Information Officer Randy Kraft said. Kraft said that means any increase could have a chilling effect on people exercising their right to counsel.
Still, he said the SPD could revisit the payment amounts once the updated eligibility standards go into effect on June 19, 2012, provided there is a higher percentage of clients able to take advantage of discounted fees.
The current standards for appointment of a public defender are based on the 1987 Aid to Families with Dependent Children (AFDC) limits, which are more restrictive than a new law that fully takes effect in 2012. In March, Gov. Doyle signed legislation that allows an individual with income of up to 115 percent of the federal poverty guidelines, up to $30,000 in home equity, a $10,000 car and $2,500 in additional assets, to be eligible for SPD representation.
Collections vary annually and the majority of SPD clients who are assessed fees are unable to pay the present rates, which translates to low collection rates. Maximum repayment amounts range from $7,500 for first degree intentional homicide to $240 for paternity cases as set by Wis. Admin. Code PD 6.01.
But clients have the opportunity to pay a significantly reduced fee 60 days from the date that the agency determines the individual is eligible for appointment of counsel. For example, someone charged with first degree intentional homicide would only pay $600 within the first two months.
According to the SPD, fees are imposed in the vast majority of criminal cases and clients receive a payment envelope for each case opened and a subsequent reminder 30 days later. The prepayment rates for most felonies and misdemeanors are either $60 or $120 per case. Only about 15 percent of clients can afford the prepayment option.
For those accounts that go unpaid, the charges are deferred until either the client is able to pay, often in monthly installments, or referred to a state contracted collection agency four months after the case is opened.
As an attorney who relies on SPD appointments, John T. Wasielewski expects to endure the financial dry spell and he said if client collections provided more revenue, it could be worth a look.
“I don’t view it as any kind of saving grace, but if it made up 3 to 5 percent of operating revenue that is something better than a sharp stick in the eye,” he said.
But the Milwaukee attorney is also concerned that any push to increase payments or collections from clients could create an adversarial relationship with clients.
Wasielewski is not alone in his skepticism of the idea.
Criminal defense attorney John A. Birdsall, who is also a member of the legislative study committee, suggested that SPD client collections are not a long-term, dependable source of revenue.
While he isn’t opposed to the SPD collecting from clients, Birdsall said that it would be “unrealistic” to expect to solve the private bar reimbursement problem by further tapping an already cash-strapped client base.
“We’re not talking about some short-term program here,” he said of the private bar funding problem. “It would seem that this type of proposal is not taking the constitutionally mandated delivery of defense services seriously.”
If the time comes that payment rates are raised, Madison attorney Erik R. Guenther said the agency will also need to reevaluate attorney assignments and potentially give clients more say in who represents them.
The Hurley, Burish & Stanton (www.hbslawfirm.com/ attorney has advocated for an increase in the $40 private bar rate before the Legislature, but doesn’t think increasing client payments is the right approach at this point.
“My concern, whether rates increase or not, is that the individual who has the most at stake doesn’t have any say in who their lawyer ends up being,” Guenther said.
Jack Zemlicka can be reached at firstname.lastname@example.org.