More public defender appointments to open up for private bar

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Starting in the summer of 2011, private bar attorneys interested in State Public Defender appointments can expect to see an increase in opportunities to defend low-income clients.

A new law signed by Gov. Jim Doyle on March 15 expands the 23-year old eligibility standards that determine who can qualify for a public defender.

As a result of the change, the SPD will be responsible for assigning an additional 12,800 cases, which currently fall to counties for appointments.

About a quarter of those added appointments will go to private bar attorneys, according to SPD Public Information Officer Randy Kraft.

The SPD’s 36 trial offices statewide opened about 142,000 cases in fiscal year 2009.

Madison lawyer Amber D. Lucsay relies heavily on appointments to sustain her practice and views the projected increase as a positive change.

“I would say … that it’s going to create more business, and I certainly hope it does because it makes up the majority of my practice,” she said.

The Madison solo attorney estimates that about 80 percent of her caseload comes from the SPD and she has as many as 40 files open at a time.

She also sees the possibility for younger attorneys to break into the rotation for appointments as a way to gain experience.

“Certainly for misdemeanor cases, someone could make it clear to the trial office they are brand new, but excited, and they may very well pick up some cases,” she said.

Under the new legislation, an individual with income of up to 115 percent of the federal poverty guidelines, with up to $30,000 in home equity, a $10,000 car and $2,500 in additional assets, can qualify for SPD representation.

Currently, the standards are based on the 1987 Aid to Families with Dependent Children (AFDC) limits, which are significantly lower.

“So many people come into my office with no money to hire private counsel,” said Madison attorney Michael E. Covey. “Even though they are flat broke, they don’t qualify for a public defender.”

Approximately 60 percent of Covey’s cases come from SPD appointments, many of which are felony defenses.

“I don’t see any downside to this,” he said.

Pay cut?

But while Covey and Lucsay would welcome the additional work, not every attorney who takes a substantial number of appointments is as enthusiastic.

About 90 percent of Jerod A. Barkley’s caseload comes from SPD work, but he said the change will likely lead to less money.

That’s because in an effort to save money on county court appointments, the law will shift cases assigned by the counties to the SPD, noted Kraft.

The new approach will cost $3.8 million in fiscal year 2012 and then about $4.1 million thereafter, and will save counties approximately $6 million in annual expenses, predicted Kraft.

In Barkley’s case, roughly 30 percent of his appointments come through Portage County, which like many counties pays $70 per hour, as opposed to the state rate of only $40 per hour.

“This is going to drop down the number of court appointed cases coming out of the [county] system,” Barkley said. “So, on balance, I think this will have a negative effect on attorneys in my situation.”

Milwaukee attorney Dianne M. Erickson has about 50 percent of her caseload generated by court and SPD appointments. She agreed that the change could have a negative financial impact on the private bar.

“If counties are paying $70 and it gets dumped back to $40 through the state, that’s not necessarily a good thing,” she said. “It reduces the feeling of what defense attorneys are worth.”

A measure has been filed that would address this concern. Assembly Bill 224, which is before the Joint Finance Committee, seeks to increase the private bar reimbursement rate to $70.

Another wrinkle for the private bar is that one of the goals of the law is to have 75 percent of SPD cases handled by staff attorneys. Currently, about 55 percent are handled internally by the agency.

To reach that goal, SPD expects to hire roughly 28 new full-time staff attorneys, starting next year.

Kraft predicted that even with the new hires, there will still be plenty of private bar work available.

But Erickson took issue with the SPD goals. She suggested that the increased volume of cases handled by the SPD could affect the quality of service provided by attorneys.

“I’m concerned about whether they will just keep adding state employees and tell them it’s their job to … handle as many cases as possible,” she said. “I don’t think that’s a good philosophy.”