Public Defender Pay At Issue

Federal officials just gave private attorneys appointed to represent indigent defendants in federal court a raise to $140 per hour, $100 per hour more than their colleagues doing the same job in Wisconsin state courts are paid.

The $40 per hour the State of Wisconsin pays private lawyers to defend indigent clients is the lowest rate in the nation. Defense lawyers have been seeking a pay hike for years, and both lawyers and judges say the low pay is making it harder to find lawyers willing to take the cases.

The Office of the State Public Defender appoints private bar lawyers when SPD staff attorneys have too many cases to handle, or when there is a conflict of interest. In 2015-16, 55,568 cases were assigned to private bar attorneys, according to the Legislative Fiscal Bureau.

The $40 rate has not changed in decades and does not cover even the overhead expenses of many lawyers.

The federal rate rose from $132 to $140 effective March 23.

“Surveys showed that it was getting more difficult to retain qualified and experienced panel attorneys in district courts at the prior rates,” the federal court system said in an announcement of the increase.

John Birdsall, a Milwaukee lawyer who is working for a pay raise for appointed defense lawyers in state courts, said the federal pay raise was “substantial and long overdue,” the result of the work of a commission appointed by Chief Justice John Roberts to study the problems of the entire federal lawyer appointment system.

“Every state should emulate this path to fixing its indigent defense systems,” Birdall  said.

David Carroll, executive director of the Sixth Amendment Center, agreed that a task force could be valuable.

The Sixth Amendment Center is studying issues related to the Wisconsin private bar pay.

“I think there are structural deficiencies in the SPD (Office of the State Public Defender that makes the assigned counsel system an unequal part of right to counsel services,” Carroll said.

The State Supreme Court is expected to hold a public hearing in May on a petition filed last year seeking a private bar pay increase.

The court has the power to order the increase, but some are skeptical that it will use that power because it is reluctant to tell the State Legislature what to do.

The Legislature, meanwhile, has failed to take even modest steps to ease the burden of appointed private lawyers working in state courts.

A proposal to spend $500,000 on a pilot loan assistance program to provide tuition reimbursement to lawyers who accept appointed cases in rural counties died in the most recent legislative session.

Another bill, introduced with bipartisan support, would have increased the pay for appointed attorneys from $40 to $55, $60, or $70 per hour, depending on the type of case. That bill did not even get a hearing.

The issue of inadequate pay for defense counsel representing poor people is a nationwide problem.  Lawsuits alleging inadequate funding of the indigent defense bar have been filed in several states and jurisdictions.

Gretchen Schuldt writes a blog for Wisconsin Justice Initiative, whose mission is “To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operation.