Criminal defense lawyers proposing increase of private bar rate (UPDATE)

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The Wisconsin State Bar Board of Governors has agreed to back a proposal set forth by a group of Wisconsin criminal-defense lawyers that would increase the private bar rate to $100 per hour.

The proposal would not only increase the private bar rate to the national average by modifying Supreme Court Rule 81.02 but also provides for a cost of living increase tied to the consumer price index. The proposal is being brought by the Wisconsin Association of Criminal Defense Lawyers, as well as various criminal-defense lawyers and criminal-law professors. The measure would cost about $34 million.

Before the vote, Milwaukee criminal defense attorney John Birdsall, one of the proposal’s authors, noted that circumstances have changed since a the justices rejected a similar petition in 2011. He said eight other states have successfully petitioned their justices to make similar changes and various organizations have complied data that shows the severity of the problem.

“We are seriously approaching a crisis here,” Birdsall said.

However, he noted that that the petition only resolves one of many problems with the state’s justice system.

“The issue has been a nagging rash on Wisconsin law,” he said. “This is just a balm to put on it.”

The current rate is $40 an hour for casework and $25 an hour for travel. Those amounts far exceed the pay found at other levels of government. Private attorneys who handle felony cases in federal district courts, for example, get $129 an hour.

The State Public Defender’s Office and other entities have been asking both the Wisconsin Supreme Court and the state Legislature for a private bar-rate increase every biennium since 1995 but so far have not been successful, according to the association’s proposal. Most recently, the SPD asked in its 2017-19 biennial budget request that the state adopt a tiered system that would increase the rate to up to $60 an hour. Such a change would have cost the state about $7.5 million. Walker declined that request, however.

The Wisconsin State Bar Board of Governors voted Friday morning to support the proposal on a voice vote. Before the vote, several governors voiced their support, including public member James Wenzler, who said he supported the proposal but advised Birdsall that removing the cost of living adjustment would likely make the justices more open to the change and easier for them to work for the Legislature.

“The Legislature is recalcitrant to approve recurring increases they don’t control,” he said.

State Bar President Fran Deisinger also spoke up in support of the proposal, though said he could only put his name to the petition if the board backed it because of the nature of his position as bar president.

“This is a good petition,” he said. “This is something that we as an organization — we as a profession– have been fully behind for decades. And we all know it is true and we all see what has happened. Nothing.”

Birdsall said the petition will be filed on May 1 with the Wisconsin Supreme Court.

Editor’s Note: This article has been edited to clarify that State Bar President Fran Deisinger said that his position as bar president prevented him from adding himself as a petitioner unless the board approved the proposal.