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Private attorneys could get more pay for public defense

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Ted Sullivan
June 14, 2009
— The Wisconsin Public Defender’s Office wants a 75 percent pay increase for private attorneys who take public defender cases.

The public defender’s office and Wisconsin Bar Association support Assembly Bill 224, which would increase reimbursements from $40 an hour to $70 an hour for private lawyers hired for public defense.


In Rock County, private attorneys handle nearly half of the public defender’s caseload, including serious cases such as homicides and sexual assaults, said Eric Nelson, first assistant state public defender.


“The rate that’s paid is way out of date, and we rely to a large extent on some very dedicated, hard-working private attorneys,” Nelson said. “It makes it very difficult for our staff to find qualified attorneys, particularly in the more complex cases.”


Lawyers in Wisconsin charge an average of $188 an hour, said Deb Smith, director of the assigned counsel division in the state public defender’s office.


Experienced lawyers won’t work for $40 an hour, she said, and it could reach a point where defendants don’t get adequate representation.


“We do have concerns, and concerns have been raised by judges and others about some private (attorneys),” Smith said.


Some public defender’s offices have had to import attorneys from outlying counties to take cases, said Randy Kraft of the state public defender’s office.


In Rock County, the pubic defender’s office has had to import attorneys from Dane County, Nelson said.


The time spent finding attorneys costs money, officials said, and paying outlying attorneys costs more because they’re reimbursed for travel expenses.


“I think it has the potential to cause delays,” Nelson said.


Meanwhile, defendants represented by public defenders might sit in jail, Kraft said.


Public defenders are required by law to represent indigent defendants who can’t afford lawyers.


They hire private attorneys because their caseload has increased over the years, while their staffing levels have remained unchanged, Kraft said.


The state public defender’s office took more than 137,000 cases in 2008, he said, and about 59,000 cases were assigned to private attorneys.


The number of cases public defenders receive exceeds the guidelines of the American Bar Association, Kraft said.


Private attorneys handle the overflow, but many law firms are small businesses, and $40 an hour doesn’t cover costs, he said.


Law firms with fewer than six attorneys make up 92 percent of the 3,800 law firms in Wisconsin.


The businesses have to pay rent, utility bills and staff, Kraft said.


“The $40 an hour, in the studies that I have seen, does not cover their overhead,” he said. “For a number of these people, they’re taking these cases at a business loss.”


The hourly rate of $40 has not increased since 1995. Thirty years ago, private attorneys hired for public defense were paid $35 an hour for time spent on a case out of court, where most work is done, Smith said.


The rate has not kept up with inflation or the cost of living, she said.


Wisconsin Bar Association representatives recently testified in Madison before the Assembly Committee on Judiciary and Ethics. They spoke in favor of the bill to increase reimbursements.


Although the state budget is tight, paying for public defense is necessary, said Diane Diel, president of the state bar.


But in this economy, it might be tough to get sympathy for attorneys making $40 an hour when many people are without jobs, she said.


“There will not be many who will cry tears for lawyers who are underpaid,” Diel said.


But other state contractors are paid much more than $40 an hour, she said.


For example, video editors have been paid $225 an hour and occupational safety consultants $135 an hour, Diel said.


Lawmakers must make tough decisions regarding the budget, Smith said, and it’s difficult to say whether the increase will be approved.


“At some point, this has to move up the priority ladder, because the rate hasn’t increased for years and years,” she said.



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