Wisconsin Supreme Court moves to raise pay rate for some lawyers representing poor defendants

Milwaukee Journal Sentinel

After years of mounting evidence that Wisconsin's lawyers are turning down requests to represent poor defendants because of the state's lowest-in-the-nation $40 hourly pay, the Supreme Court has decided to raise the rate, in some cases, to $100.

Attorney John A. Birdsall in his law office on Old World Third St. in Milwaukee.

The change is meant to address a constitutional crisis, advocates say, not make lawyers rich, since even the new rate is well under what most lawyers charge clients who can afford to hire their own attorney.

John Birdsall, a Milwaukee lawyer who co-authored a petition to the high court last year seeking the change, and who argued the need at a hearing Wednesday before the court, said he was informed of the court's decision later that day. He called it a welcome step in the right direction.

"However, the lack of lawyers to handle the vast majority of the 58,000 cases that are farmed out from the SPD to private lawyers will soon overwhelm an already highly stressed system in the coming year or two," he said.

"We have drafted a comprehensive plan that will restructure and permanently fix this system and would be willing to work with the governor or any interested legislators, so we can make Wisconsin a model for the nation."

The court has not yet completed an order formalizing its decision to grant the petition. A court spokesman said it will be forthcoming.

The change in the Supreme Court rule doesn't directly change what the State Public Defender can pay lawyers who handle about 40% of the indigent criminal cases in the state when it can't; that $40 rate was set by the Legislature in 1995.

But when the Public Defender can't find lawyers for defendants — often left sitting in jail for weeks awaiting counsel — judges can appoint lawyers at the higher rate, now $100 an hour.

Counties absorb most of those costs, and so many opposed the increased rate. They also opposed the petitioners' request to end the use of flat-fee contracts with lawyers who represent children in family law cases.

Birdsall said he was told the court sided with counties on that, and also denied a request to declare any payment rate under $100 unreasonable, and to index the $100 rate to inflation.

Advocates, however, hope that the counties may now succeed — where criminal justice stakeholders have repeatedly failed — in getting the Legislature to increase the $40 rate.

The Sixth Amendment to the U.S. Constitution guarantees those charged with crimes the right to a speedy, public trial by jury, the right to confront accusers and the right to the assistance of counsel.

The U.S. Supreme Court in 1963 established that if a defendant can't afford counsel, the government must provide it. Other cases have established the assistance must be effective, not merely a lawyer appearing, unprepared, for a defendant.

The Public Defender's staff lawyers are trained and supported. But at $40 an hour, most private lawyers say they can't even meet overhead expenses. As experienced lawyers shun cases that the Public Defender can't take because of conflicts or overload, cases are delayed for both defendants and victims.

Newer lawyers seeking experience may take on more appointments than they can handle, leading to more delays, appeals, inefficiencies and strains on the entire court system — not to mention potential injustices for clients.

At Wednesday's public hearing, justices agreed the $40 rate is too low but doubted they had authority to order the state to raise it.

Birdsall and others argued that it is part of the court's implicit authority to ensure the justice system functions fairly, even when it costs money.

Raising the Public Defender appointment rate from $40 to $100 an hour would cost an estimated $32 million more annually.

Even a bipartisan Assembly bill that would have instituted a three-tiered payment model, with rates of $55, $60 and $70 an hour depending on the type of case — went nowhere last year.

Advocates for the increased pay told the Supreme Court that other states with constitutional-level indigent defense shortcomings wound up facing class-action lawsuits, which they called much more expensive and inefficient solutions.