For the first time in more than two decades, private attorneys who take on cases for the Wisconsin Public Defender will be getting a pay raise.
But until that new rate kicks in Jan. 1, the public defender’s office is having a difficult time finding lawyers willing to handle their cases.
In the most recent state budget, Wisconsin lawmakers approved a plan to increase the reimbursement rate for attorneys who take public defender cases from $40 to $70 an hour. That $40 rate had been in place since 1995 — when the rate was actually cut from $50 an hour — and was the lowest in the United States.
The increase was welcome news for many in the court system statewide, especially in more rural counties, which were having an increasingly difficult time finding private attorneys to take public defender cases, leaving some criminal defendants in limbo.
But because that rate increase does not kick in until Jan. 1 — and because cases accepted before that date will continue to be reimbursed at the $40 rate throughout the life of the case — counties are, for now, having a tougher time than ever appointing lawyers.
“We have seen the challenge with finding private attorneys for a number of years, especially in our more rural areas,” said Randy Kraft, spokesman for the Wisconsin State Public Defender. “What we are seeing now is that it is also impacting our more urban areas, Kenosha and Racine especially.”
In recent months in Kenosha and Racine counties, the courts have had to increasingly appoint advocate attorneys, paid through county funds, when the public defender has been unable to make appointments. The county advocate counsel rate is $70 an hour, and is paid through her office’s annual budget.
Typically, the advocate counsel program appoints attorneys for people who make too much money to qualify for the state public defender, but who are still able to show that they do not have enough money to pay for a private attorney.
In the past it was relatively rare for the county to have to step in on public defender-qualified cases, said Kenosha Clerk of Courts Rebecca Matoska-Mentink.
“We were fortunate for a number of years,” she said.
But this year, she said, lawyers are increasingly turning down public defender cases. She said the number of cases of appointments for county advocate counsel has roughly doubled compared to 2018.
“We’re expected to go over budget by about $30,000 (for advocate counsel payments),” Matoska-Mentink said, saying she is estimating that her office will spend about $124,000 on advocate counsel fees this year.
In Racine County, the number of advocate counsel appointments has skyrocketed, said Racine County Clerk of Courts Sam Christensen.
“In the fourth quarter of last year, we started to see it jump up. Before that it held pretty steady. But this year is a little out of control,” Christensen said.
In 2017, Racine County had to appoint advocate counsel for felony cases in 27 cases, a rate typical for the preceding years. In 2018, he said, there were 137 appointments, 97 of them coming in the fourth quarter.
“This year, just through the end of July, we’ve had 352 appointments,” Christensen said.
The right to representation
Anyone charged with a crime has the right to legal representation. In most cases, defendants who are not able to afford a lawyer are represented by staff attorneys from the public defender’s office.
But in some cases, because of legal conflicts, the local office is not able to appoint one of its staff attorneys. For example, if there are four co-defendants on a case, the public defender’s office would be able to appoint a staff attorney for just one of those co-defendants, the office then appointing a private attorney for the other three to protect against any conflict of interest.
“You want to ensure an attorney is working entirely for that client and his or her best interests,” Kraft said.
Kraft said Wisconsin’s hybrid system of staff public defenders supplemented by private defense attorneys is considered a model system. But it depends on private attorneys’ willingness to take cases.
Michael Cicchini, a criminal defense attorney based in Kenosha, said he has been getting more advocate counsel appointments recently.
He said for many defense attorneys, taking public defender cases with the current reimbursement rate is a financial loss when considering the costs of insurance and legal staff.
“The hourly office overhead is often over $40 an hour,” he said.
Waiting in jail
Ultimately, Cicchini said, it is people who are waiting for a legal appointment who are being hurt by the backlog.
“People are sitting in jail way past their preliminary hearing dates,” Cicchini said. “There are cases (in rural counties but not here in Kenosha County) where they are making people go through the preliminary hearing process alone without a lawyer.”
In the Kenosha and Racine court systems, the clerks are hopeful that with the $70 rate coming Jan. 1, the problem with appointing attorneys will be a short lived, and that their advocate counsel rates will fall back to more typical levels in 2020.
Kraft is also hopeful.
He said he believes with the higher rate it will be easier to find private attorneys willing to take cases in more urban areas like Kenosha and Racine counties, and possibly attract more attorneys to open offices in more rural counties.
“We do expect that that (rate increase to $70) will have a substantial impact, and we are preparing for that now,” Kraft said, saying the state public defender’s staff is meeting with judges around the state on the issue.
“We are hopeful starting Jan. 1 that these challenges will greatly reduce,” he said.