SPD wants more pay for private attorneys

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Attorney Amber D. Lucsay does not drive a luxury car, work at a prestigious law firm or operate a lavish office.

She is a solo criminal defense lawyer who generates 90 percent of her business through private bar assignments from the Wisconsin State Public Defender’s Office (SPD), which compensates appointees at $40 per hour — one of the lowest rates in the nation.

With few private clients coming in her door due to the recession, Lucsay recently surrendered her downtown Madison office in order to afford daycare for her two-year-old son.

“I’m not looking to get wealthy, but it would be nice to have a retirement fund and put my kid through school,” said Lucsay, who was one of several private attorneys and SPD staff members who testified in support of Assembly Bill 224 on June 2.

The public hearing in front of the State Assembly’s Committee on Judiciary and Ethics is the furthest that any proposal to raise the rate to $70 per hour has gotten. The in-court hourly rate was originally set at $45 in 1978. Although it rose to $50 per hour during the early 1990s, the state Legislature brought it down to $40 per hour in 1995.

While nine of the 11 committee members are attorneys and four are co-sponsors of the legislation, some questioned the $19 million annual cost at a time when the state is cash-strapped, as well as whether the increase should be a priority.

Quality Issue

Rep. Rich Zipperer, R-Pewaukee, wondered why legislators should put the SPD request ahead of other individuals looking for financial support from the state.

“Why should this be a higher priority than providing tax relief for families that are trying to get by and pay their bills so they don’t become indigent?,” he asked.

But Deborah M. Smith, head of the SPD Assigned Counsel Division, noted that the rate hasn’t increased in 17 years and argued that unqualified attorneys are taking appointments.

She said that in the last six months she has had to remove attorneys from assignments because of “uncontrolled substance abuse” and at least one other attorney was removed this year by a judge because he became “mentally unstable.”

“I’ve had to deal this year with intoxicated and drug-impaired lawyers,” Smith said. “I know there are lawyers on our list who are not providing appropriate representation. To what extent the $40 per hour contributes to that is a matter of debate, but I think it does.”

Rep. Samantha Kerkman, R-Genoa City, suggested that the SPD office needs to do a better job of screening attorneys on its appointments list before assigning cases.

But Smith said the agency does not have the resources to thoroughly investigate each of the approximately 1,000 attorneys eligible for appointments.

A Matter of Fairness

State Bar of Wisconsin President Diane S. Diel argued that increasing the rate is the fair thing to do.

She cited findings from a bar survey indicating that the average hourly rate for a private attorney was $188 in 2007.

“Lawyers run businesses and have to pay things like staff, overhead and insurance,” said Diel, a solo practitioner who estimated her overhead costs at $70 per hour. “Even in my streamlined operation, if I take a public defender case, it’s going to leave me in the hole.”

Rep. Bill Kramer, R-Waukesha, suggested that an attorney who takes a case at $40 per hour and works 40 hours per week would earn around $80,000 a year.

“That …would be damn near the average [attorney’s salary],” Kramer said. “If we bust it up to $70, now we’re talking about $140,000 a year.”

But Smith pointed out that attorneys are not guaranteed a steady flow of cases and it is unlikely that someone could bill 2,000 hours a year.

“There just isn’t that much work,” said Lucsay.

Despite the reservations expressed by legislators, Rep. Frederick Kessler, D-Milwaukee, who introduced the bill and also sits on the Assembly committee, said after the hearing that he is optimistic the legislation will advance to the Joint Finance Committee.

But he said it could not be introduced to the full Assembly until after the budget is passed.

State Public Defender Nicholas L. Chiarkas also expressed hope that the issue would move forward at some point, and indicated that the SPD might try to gain approval for a private bar restructuring plan cut out of the 2009-11 budget by Gov. Jim Doyle.

That proposal would have added more than 100 SPD staff attorneys, permitting fewer private bar appointments.

“We’ll try that again,” Chiarkas said.