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Tom Kertscher
By Tom Kertscher March 20, 2011

Former Wisconsin Supreme Court candidate Marla Stephens says the state pays plumbers, others “much, much more” than public defense attorneys

Who deserves the least sympathy: lawyers, politicians … Illinois toll booth operators?

The first group seems to make pretty good coin. But when doing work for the State of Wisconsin, private-practice lawyers who take public defender cases haven’t gotten a raise since 1992.

The fact the so-called "private-bar rate" -- $40 an hour -- hasn’t been raised in more than 18 years outraged Marla Stephens, head of the appellate division of the state public defender’s office.

Stephens, who lost in the February 2011 primary election for state Supreme Court, raised the issue at a candidates forum on Jan. 27, 2011, saying:

"The State of Wisconsin pays attorneys that it hires much, much more than $40 an hour in every other case. The State of Wisconsin pays plumbers that it hires and engineers that it hires much, much more than $40 an hour to do work for the state."

OK, we’ll pause here for this acknowledgement: Stephens’ claim was made weeks ago, before that little budget-repair bill from Gov. Scott Walker caught our attention. But her claim still stands and it provides some insight into how the state provides legal representation for poor adults who are facing jail or prison.

First, a little background.

The Legislature created the state public defender’s office in 1978. Public defenders, who are state employees, represent the indigent in every county in Wisconsin. They mostly handle adult criminal cases, but they also work civil matters such as paternity cases.

At the time, the Legislature created a two-tier pay system for private-practice attorneys who put themselves on a list to be assigned cases by the public defender. The hourly rates peaked in 1992 -- $50 for in-court work and $40 for out-of-court work. The current, single rate of $40 an hour has been in place since 1995.

Despite the lack of raises, some 1,300 private-practice attorneys take public defender cases. In 2010, they handled 53,380 cases, two-thirds of them criminal, according to Deborah Smith, the assigned counsel division director for the public defender’s office.

So that’s the lay of the land. Now let’s examine what Stephens said.

Her first claim was:

The state pays private-practice attorneys "much, much more than $40 an hour in every other case."

We asked Stephens’ campaign manager, Jon Lipshutz, for evidence to support her two claims. On this point, he cited two Milwaukee Journal Sentinel articles.

An August 2009 article said a Madison attorney was paid $175 an hour to represent the state in a lawsuit over the state’s registry for same-sex couples. And a July 2010 article said the state paid another Madison attorney up to $665 an hour in a complex insurance case involving the receivership of Ambac Assurance Corp.

Obviously, those attorneys were paid far more than $40 an hour -- but their cases were considerably different than the typical public defender case.

To get a more comprehensive picture, we went to Carla Vigue, spokeswoman for the state Department of Administration. She said the lowest rate a state agency paid for an outside attorney over the past year was $95 an hour, for legal services to college students.

The state Office of Lawyer Regulation, however, pays what is known as the Supreme Court rate of $70 an hour to attorneys it hires to prosecute lawyer misconduct cases. The Supreme Court rate is also used when judges appoint lawyers to cases for any reason.

So, the lowest rate we could find that the state pays to lawyers for non-public defender cases is $70 an hour. That’s $30, or 75 percent, more than what the state pays for public defender cases.

Stephens’ second claim was:

The state pays plumbers and engineers "much, much more than $40 an hour."

Lipshutz confirmed that Stephens was referring to plumbers and engineers hired on contract. He referred us to the state’s VendorNet website but did not provide evidence of what the state pays contract plumbers and engineers.

We again went to the Department of Administration. Vigue said engineers are paid $80 an hour -- twice the rate paid to private attorneys on public defender cases.

Plumbers, meanwhile, are paid the prevailing wage, which varies by county and by the type of job.

Vigue provided plumber rates for Milwaukee, Dane and Brown counties. The lowest rate for typical jobs, in Brown County, is $46.69 -- the basic hourly rate of $31.65, plus $15.04 per hour for fringe benefits.

So, the state does have a rate it pays for certain plumbing jobs that is lower than the $40 public defender rate -- at least if benefits are not considered in the plumber rate.

Of course, Stephens’ larger point is that the amount paid for public defenders should be increased. Two attempts to force this to happen are pending.  

A March 2010 petition asks the Supreme Court to raise the court-appointed rate to $80 an hour and to index it to inflation. And the 2011-2013 state budget request by the public defender’s office asks that the rate be raised to $70, at an estimated cost of $16.4 million per year.

Let’s return to the claim at hand.

Attorney Marla Stephens said the state pays hourly rates to most lawyers, as well as to engineers and plumbers, that are "much, much more" than the $40 it pays private-practice attorneys to handle public defender cases. That kind of characterization is subjective. But the rates paid to other attorneys and to engineers are considerably higher. The rate paid to some plumbers is lower, and only when benefits are not included.

We rate Stephens’ statement Mostly True.

Our Sources, Supreme Court candidates mix it up in forum, Jan. 27, 2011

E-mail interview, Supreme Court candidate Marla Stephens campaign manager Jon Lipshutz, Jan. 28, 2011

E-mail interview, Wisconsin Department of Administration spokeswoman Carla Vigue, Feb. 11, 2011

State Bar of Wisconsin website,State Public Defender Private Bar Reimbursement and related pages

Wisconsin Assembly Bill 224(2009-2010 session)

Wisconsin Department of Administration, Assembly Bill 224 fiscal estimate

Wisconsin Assembly,History of Assembly Bill 224

Interview and e-mail interview, Wisconsin Public Defender Assigned Counsel Division Director Deborah Smith, Feb. 10 and 14, 2011

Milwaukee Journal Sentinel,Law firm suing Busalacchi withdraws over possible conflict of interest, Aug. 30, 2009

Milwaukee Journal Sentinel,Ambac case lawyers, advisers get $18 million, July 25, 2010

Milwaukee Journal Sentinel, Prosser, Kloppenburg to face off for Supreme Court seat, Feb. 15, 2011

Iowa State Public Defender website,Rate of compensation page

Wisconsin Supreme Court, Rule Petition 10-03, March 5, 2010

Wisconsin Supreme Court, Compensation Paid to Attorneys Appointed by a Court

Wisconsin public defender’s office, 2011-2013 budget request, September 2010

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Former Wisconsin Supreme Court candidate Marla Stephens says the state pays plumbers, others “much, much more” than public defense attorneys

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