High court delays pay increase for court-appointed attorneys

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The Wisconsin Supreme Court won’t increase pay for court-appointed attorneys until January 2020.

The justices released an administrative order Wednesday laying out their reasons for approving in part and rejecting in part a proposal that would have increased the pay for appointed attorneys in Wisconsin. As part of that order, the justices decided to postpone the long-proposed pay increase for attorneys appointed by a year and a half.

The state’s courts sometimes will apply to lawyers who 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.

But at other times, it’s the State Public Defender’s Office that 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 account for about 40 percent of the SPD’s total caseload, and those lawyers are typically paid $40 an hour, a rate set by state statute.

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

The latest pay proposal, brought by the state’s criminal defense bar as well as other lawyers and members of the state’s legal system, would have increased the rate for court-appointed attorneys from $70 an hour to $100 an hour, tied that rate to the cost of living, and deemed any rate below $100 an hour unreasonable for attorneys appointed by the State Public Defender’s Office. The proposal also would have barred the SPD from contracting out appointments for a flat fee.

The court received dozens of letters on the petition from more than 100 lawyers, judges and other individuals. Most of the petitioners supported adoption of the proposal.

The justices heard public testimony, mostly from lawyers, on the proposal on May 16 and voted in a closed hearing afterward to grant only the part of the proposal increasing compensation for attorneys appointed by judges. At the same time, they declined to tie that compensation to the cost of living, saying they would review the rate every two years going forward.

The justices also declined to adopt the part of the proposal that had stirred up the most controversy: the provision declaring that any compensation below $100 an hour was unreasonable.

The court reasoned that to do so would break its tradition of avoiding conflict with the state Legislature unless it was unavoidable and necessary.

“We hope that a confrontation in the form of a constitutional challenge will not occur and trust that the legislature will work with the courts, the SPD, the petitioners, the counties, and other justice partners to ensure adequate funding for the SPD that is urgently needed to forestall what is clearly, an emerging constitutional crisis,” the court wrote.

The justices also declined to adopt a ban on flat-fee contracting, noting that it had been told that the SPD uses the practice sparingly.

Justices Ann Walsh Bradley and Dan Kelly wrote separately from Wednesday’s order. Ann Walsh Bradley, joined by Justice Shirley Abrahamson, concurred in part and dissented in part, saying she agreed that the court-appointed counsel rate should be increased but that the increase should take effect on Sunday.

Kelly, joined by Justice Rebecca Bradley, dissented, writing that he disagreed with the order because the State Constitution gives only the Legislature, not the judiciary, the power to command the counties and others to spend more money. Follow @erikastrebel