Attorneys argue for higher pay

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The Wisconsin State Public Defender’s Office’s difficulty finding capable lawyers hit home for John Birdsall in 2005 when he was the sixth attorney to defend a child pornography case.

“The case had already been in progress for four years, and it took me another year to get to trial,” he said. “I know that’s not an uncommon situation.”

The complexity of the case, which involved DNA evidence, fingerprints and extensive expert witness testimony, demanded an experienced practitioner, Birdsall said.

But it’s getting harder for the state to attract those attorneys for private bar appointments. The SPD’s $40-per-hour rate has led Birdsall to only take one case per year out of a “sense of duty that someone competent should take those cases.” He said he generally charges $300 per hour for cases.

That means less-experienced lawyers are filling the void, he said, and, by extension, creating circumstances similar to Birdsall’s in which the state burns through attorneys until finding the right one.

The private bar reimbursement rate has remained at $40 since 1995, when it was reduced from $45.

Birdsall and other attorneys want to reverse that trend and have proposed a study, that would be coordinated by the State Bar and the Wisconsin Association of Criminal Defense Lawyers, to demonstrate the $40 rate for private lawyers needs to be at least doubled. It’s the only way, Birdsall said, to attract the talent necessary to maintain the constitutionally mandated quality of representation.

The SPD’s operating budget for fiscal year 2011 is about $83.5 million, and Birdsall said doubling the rate for private attorneys would increase the budget by about $25 million.

“The real question is: Isn’t that where the number should be anyways?” he said.

The SPD requested $92 million for fiscal year 2012, but, as of deadline Thursday afternoon, Gov. Scott Walker’s proposed budget called for $81 million.

The 2011 amount and Walker’s proposed amount for next year fall short of Wisconsin’s 2008 spending to represent indigent people. That year, the state ranked 15th nationally in money spent on indigent defense at $89.9 million, according to a recent study by the American Bar Association.

But SPD spokesperson Randy Kraft said the agency doesn’t measure its success by rankings. Rather, he said, the focus is on balancing service for clients with spending by taxpayers.

More money for private bar appointments, he said, would help, but the track record suggests it won’t happen soon.

In 2009, the last time the SPD lobbied legislators to increase the rate, Deb Smith, SPD Assigned Counsel Division director, said the number of attorneys who had to be removed from cases due to incompetency was on the rise. Lawmakers rejected the request.

Smith could not be reached to comment before deadline on the current status of case removals.

A rules petition is pending in the Supreme Court to increase the rate to $80. The court tentatively rejected the petition in November but has not yet issued an order.

The SPD did persuade the Legislature to pass 2009 legislation that matched the eligibility for a public defender in criminal cases with the qualifications of the Wisconsin Works program.

SPD officials projected the law, which took effect June 19, will lead to 12,800 more cases, creating more opportunities for private bar appointments. The law also added 45 SPD staff attorney positions to handle 75 percent of the new workload.

But the new law is not a solution to the low rate of pay for private lawyers, said Jerry Buting, a Waukesha criminal defense attorney. He said he stopped taking SPD appointments in 2005 out of principle.

“It is hard to quantify the impact,” Buting said, “except that anybody in the system understands that a lower rate means a poorer quality of representation overall.”

Jack Zemlicka can be reached at [email protected].