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Details coming in court’s decision on compensation for appointed attorneys

The Wisconsin Supreme Court recently denied in part a proposal to increase the compensation for certain appointed attorneys, but details on how the justices voted and why won’t be released until the court issues a final written order.

In Wisconsin, sometimes the courts will appoint lawyers to represent indigent criminal defendants. Lawyers who take cases in these circumstances are paid $70 an hour, a rate set by a Wisconsin Supreme Court rule. Counties typically foot that bill.

Other times, the State Public Defender’s Office will appoint attorneys to represent indigent criminal defendants, especially when that office has a conflict that might prevent it from providing adequate representation. Those appointments make up about 40 percent of SPD cases, and those lawyers are typically paid $40 per hour, a rate set by state statute.

Although other states and the federal system have raised their rates over the past two decades in order to keep up with inflation and overhead costs, Wisconsin’s last change came as far back as 1995.

The justices on May 16 heard public testimony, much of it from lawyers, on a proposal that would have increased the rate for court-appointed attorneys from $70 per hour to $100 per hour and deemed unreasonable any rate below $100 per hour for attorneys the State Public Defender’s Office appoints. The proposal also would have banned the SPD from contracting out appointments for a flat fee.

Justices Rebecca Bradley and Dan Kelly repeatedly asked those who testified to focus on what authority the court has to determine how much the state’s counties and the SPD must pay.

“Focus on what our authority is,” said Bradley.

“It’s not a question of leadership,” said Kelly. “It’s a question of power.”

Milwaukee criminal defense attorney Ellen Henak was one of dozens who testified Wednesday. She told the justices that precedent allows the high court use its inherent power if the problem affects the court system’s core judicial functions.

On the other hand, representatives of the state’s counties contended that increasing the rate for court-appointed attorneys would further burden already cash-strapped counties and that only the state Legislature has the authority to tell counties and the SPD what they must spend.

In a closed conference after the hearing, the justices voted to partially grant and partially deny the petition, said Supreme Court Commissioner Julie Rich. She said the vote was not unanimous but she was not authorized to disclose how each of the justices voted.

The court agreed to grant the portion of proposal that increased compensation for attorneys appointed by judges to take cases. However, the court declined to grant the rest of the petition.

Rich said Monday that she expects the court’s order to include separate writings from certain justices and that the order would be issued by the end of the term, which ends June 30.


About Erika Strebel, [email protected]

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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