For private attorneys, public defender work is nearly pro bono

Nov. 23--For private attorneys who take cases by appointment for the State Public Defender, it's been the same story since 1995.

The pay is $40 per hour. Meanwhile, the average lawyer in Wisconsin charges $188 per hour for legal help.

For many lawyers, fortunately, representing indigent

"It's a form of public service, in a way," said Madison attorney Ron Benavides, who has been taking cases for the SPD since he graduated from UW-Madison Law School in 1993. And, he said, it's a way of paying back the public defender for giving him legal experience when he had just hung out his shingle.

"I personally am committed to accepting public defender cases," he said. "The public defender helped me develop. I see that as a fair exchange."

But Deb Smith, director of the Assigned Counsel Division at the SPD, said experienced lawyers like Benavides might be becoming rarer as the cost of running a law practice increases while the state reimbursement rate remains ever stagnant.

Jeff Nichols, a private attorney in Madison, said he started reducing the number of public defender cases he took as his practice got more established and he was able to obtain more lucrative work.

"One of the problems with the rate as it is right now is my overhead is to the point where I could probably make more money if I worked full time at a convenience store as some sort of assistant manager," he said.

He added, "It's not quite pro bono, but it's kind of close to it."

Increase in rate sought

The hourly reimbursement rate is only $5 more than it was in 1978 when the state Legislature created the SPD. Then it was $35 per hour for time spent out of court and $45 per hour for time in court. After some changes over the years, the rate settled at $40 per hour in 1995.

SPD has asked for an increase in at least the last two biennial budgets, both times up to $70, but the requests went nowhere. This time, for the 2009-11 biennium, it is asking that Gov. Jim Doyle seek a reimbursement rate of $70 per hour and funding to hire more staff attorneys, to reduce the need for private appointments.

The proposal, Smith said, would be less expensive than prior requests -- an addition of about $9 million instead of nearly $15 million. And it would attempt to re-establish a balance of 75 percent of cases handled by staff attorneys and 25 percent private bar appointments. Now it's about a 60-40 ratio.

But with the state facing a massive budget deficit, state agencies shouldn't expect increases, said Doyle spokesman Lee Sensenbrenner.

"It's too early to get into line-by-line budget discussions, but clearly -- given the national economic crisis -- this is an extraordinarily difficult fiscal situation," Sensenbrenner said. "Governor Doyle has been saying that in this climate, staying even is the new increase."

Quality of lawyers

In addition to higher costs to the SPD, having more private attorneys handling public defender cases can also present a quality control issue, Smith said. In the past, judges and prosecutors have generally ranked public defender staff attorneys highly, while ratings for the private bar handling public defender appointments has been "more variable," she said.

"I'm very limited in the extent to which I can 'supervise' the private bar," Smith said. Supreme Court rules make it improper to interfere in their attorney-client relationship once the appointment is made, she said.

More recently, though, it's been state legislators who have been wondering why they should give more money to private attorneys who they hear from constituents haven't been doing a good job, Smith said. That isn't to say, though, that the private lawyers are at all inferior.

"There are some very good lawyers on our appointment list that still take cases," she said. "But there are a lot of good lawyers who no longer take our cases because of the rate."

SPD appointments have long been the bread-and-butter of new attorneys fresh from law school and looking to establish themselves. But Smith said the failure of the reimbursement rate to stay current with inflation has prompted some experienced attorneys to stop taking SPD. That means indigent clients are increasingly being represented by inexperienced lawyers.

A State Journal comparison of appointed attorney lists for 1998, 2003 and 2008 found that about one-third of the lawyers who took public defender appointments in Dane County in 2008 were five years or less out of law school. That compares to about 20 percent in 2003 and 25 percent in 1998.

Taking the cases

It's clear that some experienced attorneys have dropped off the public defender appointment list because of the reimbursement rate. They don't find it cost-effective to take cases at $40 an hour when their private client list is burgeoning.

Helene Zinberg, a private attorney in Madison, said she still takes a few public defender cases because she said it's satisfying to help people. But she said unless an attorney practices from home, the pay isn't enough to cover costs.

"You don't have to get rich from practicing law, you just have to be able to live and support yourself," Zinberg said. "You can't do that with public defender rates right now."

Others, often solo practitioners like Madison attorney Paul Schwartz, make it one facet of their practice.

"I'm on my own, my overhead is very low," he said.

Schwartz, like Benavides, also takes appointments from the federal defender, the federal court's equivalent to the SPD. It's a harder list to get on, though, but at about $100 per hour, it pays a lot better.

"There's scrutiny," Benavides said. "Experience is rewarded to a greater extent."

But while both have their reasons for continuing to take SPD appointments, each said an increase in the reimbursement rate is long overdue.

"A lot of us would like to see it go up," Schwartz said.

Attorneys say one of the reasons a pay raise has not passed the Legislature is that the legal defense of poor people who are charged with crimes is not a prevailing cause.

"Apparently it's not politically popular to spend as much for representing the indigent," Zinberg said.

"It's a constitutional right. You just can't whittle (pay) down to that low without taking away that right."

State Journal Reporter Deborah Ziff contributed to this report.

To see more of The Wisconsin State Journal, or to subscribe to the newspaper, go to http://www.wisconsinstatejournal.com. Copyright (c) 2008, The Wisconsin State Journal Distributed by McClatchy-Tribune Information Services. For reprints, email tmsreprints@permissionsgroup.com, call 800-374-7985 or 847-635-6550, send a fax to 847-635-6968, or write to The Permissions Group Inc., 1247 Milwaukee Ave., Suite 303, Glenview, IL 60025, USA.