Courts Face Shortage of Defense Lawyers

The COVID-19 pandemic has the Milwaukee State Public Defender’s Office doing what it rarely did in the past – blasting out emails seeking private bar attorneys to represent indigent defendants in criminal cases.

Those types of emails are fairly common in rural counties, where lawyers are scarce and SPD offices struggle to find enough private lawyers to take cases.

In Milwaukee County, though, there are more lawyers overall and enough have been willing to step in when SPD staff attorneys bow out of a case for reasons such as conflicts of interest or caseload issues. Those “can you help” emails in Milwaukee County were very rare, until now.

“The pandemic, I’ll have to say, has really had an impact,” said Tom Reed, regional attorney manager for the SPD’s Milwaukee Trial Office.

In one email last month, SPD sought lawyers for 15 cases involving 12 defendants. Charges included intimidating a witness, stalking, child sexual assault, and armed robbery, among others. A few days later, SPD sent an email seeking one lawyer for one case – a homicide. Private bar attorneys are paid $70 per hour to handle SPD cases.

The numbers vary, but Reed said there are generally about 30 to 40 defendants in custody for at least a week without representation, a much higher number than in pre-COVID times.

There are other factors to the lawyer shortage, but a very big one is the pandemic. When it hit, the courts essentially shut down and that had cascading impacts.

Judges, jailers, lawyers, and court officials worked to keep defendants out of the jail when they could because of concerns of spreading COVID-19. More people charged with misdemeanors were told when to appear in court and released, rather than being booked through the jail., for example. The people held in jail were those accused of more serious crimes. There are about 150 people sitting in jail on homicide charges, Reed said.

The courts’ shutdown meant backlogs built for SPD lawyers,  prosecutors, private bar attorneys, judges, and everyone else in the system. Milwaukee County Chief Judge Mary Triggiano estimates it will take 18 months to two years to clear the build-up of criminal cases.

Courts are reopening, slowly, and cases are moving forward. Private bar attorneys are needed to handle SPD cases, but those private lawyers also have to handle the cases they already have on their docket. Lawyers who were willing to work SPD cases can’t handle them now

“People feel unwilling to overload their calendars,” Reed said.

The pandemic also may have helped some lawyers approaching retirement age decide that it was the perfect time to pull the plug, Reed said.

In addition, “I think there were lawyers who weren’t retirement age, but they did back off if they felt some vulnerabilities,” he said.

Some might have had caregiving duties or their own health concerns, he said.

The pandemic also may have made it financially more difficult for private lawyers to accept bar appointments, he said. They usually are not paid until a case is over, which can take some time.

The generational turnover also meant there are fewer lawyers available who have the experience to ably defend a murder case or other very serious felony. Yet it is people charged with those types of crimes who have been sitting in the jail and whose cases judges are giving priority.

The $70-an-hour private bar pay has been criticized as too low, but Reed said he did not think that was a factor.

Cases are moving now, though slowly.

“Every day we’re finding lawyers to take some of the cases,” he said.

“Our program relies on the strength of the private bar,” he said.. “They have been good partners in seeking justice.”

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.”