Tackling the defense lawyer shortage, Kim Wexler style
August 15, 2024
In Better Call Saul, Jimmy McGill, the (ethically challenged but charming) main character, can’t get hired at his brother’s fancy law firm. So when he’s left with no other options, he does criminal defense work. It’s pretty far from the work he wanted. Art mirrors life. It seems that a lot of lawyers aren’t inclined to do this work.
Wisconsin Supreme Court Chief Justice Annette Ziegler recently announced the creation of an Attorney Retention and Recruitment Committee to consider the shortage of lawyers representing criminal defendants. As stated by Kenosha County Circuit Court Judge Jason Rossell, the chair of the Committee of Chief Judges, “The delays caused by the [lawyer] shortage cause problems throughout the system, including delays in trials, lengthy pretrial incarceration, losing treatment options, and delayed closure for victims and witnesses.”
To provide some hard data, I’ve kept track of a typical period in Milwaukee County Circuit Preliminary Hearing court. Over a random seven-day period: in 33 cases a preliminary hearing was conducted; in 28 cases, the defendant waived the preliminary hearing; and 146 cases were adjourned due to no lawyer having been appointed by the Public Defender’s Office in time for the hearing. In many of those cases, a witness was subpoenaed and an officer had to come to court (collecting a minimum of two hours of overtime), just to be released when the hearing was adjourned. About half of those cases were second-time adjournments, which resulted in the case being transferred to the trial court for a hearing under State v. Lee, 2021 WI App 12.
Lee is representative of the problem. Lee was held in custody for 101 days without counsel while the public defender searched for an attorney willing and able to represent him. Ultimately, Lee’s preliminary hearing was not held until 113 days after his initial appearance. The public defender at one of the hearings stated that she believed at least 100 attorney, if not more, had been contacted by the agency. None of those attorneys was willing to represent Lee. In addressing Lee’s motion, the circuit court recognized that, given the low compensation rates for public defender appointed attorneys, few attorneys are willing to take these cases, and “[a] statewide crisis regarding public defender representation has been brewing for several years.”
The Court of Appeals reversed, holding that because Lee’s preliminary hearing was held outside of the ten-day time limit without a proper finding of good cause, the criminal complaint must be dismissed without prejudice. The appellate court concluded that when the time limit for holding a preliminary hearing under section 970.03(2) is extended based on delays in the process for appointment of counsel for the defendant, “the court must conduct a relatively thorough inquiry that ensures there is good cause for the extension.”
Dismissing a case due to no fault of the State is an absurd ruling. While it’s unclear why no one wanted to represent Mr. Lee, it’s not uncommon for attorneys to decline representation due to the defendant’s personality or conduct, which has gone as far as physically attacking their attorney. Ordering dismissal in these cases allows a defendant to beat the system by bad behavior.
In any event, the State can simply reissue the charges, starting the process all over again. That does the defendant no favors and would be highly inefficient to the system as a whole.
The Supreme Court initially accepted the appeal in Lee, but dismissed review as improvidently granted without giving a reason. While the failure of the Supreme Court to weigh in on a critical issue is bad enough, as a side issue, it should be noted that the high court first accepted briefs from all parties, allowed four amicus briefs and conducted full oral arguments. (Perhaps the Supreme Court is not the best example of efficiency?)
The end result is that this committee has its work cut out for it. While pay is certainly a major factor, other factors discouraging representation undoubtedly include a disinclination to represent “bad” people, especially when the lawyer will likely be blamed for an adverse result. The percentage of appeals of criminal cases based on an allegation of ineffective assistance of counsel is quite high.
So what remedies can the committee consider recommending?
Kelli Thompson, State Public Defender for 12 years and now a private practice attorney in Madison, made several suggestions, including incentives such as loan forgiveness, geographic pay enhancements, better recruiting of people to pursue a rural law practice, and removing practical barriers in scheduling and addressing the overwhelming caseload of attorneys in the public sector. While all of these are worth considering, I believe that if lawyers are paid enough, they will do any job. While the pay rate recently increased, it clearly isn’t enough.
Returning to Better Call Saul, after a while, Jimmy’s girlfriend, Kim Wexler, decided she prefers the rewards of criminal defense work over white-shoe lawyering. Again, it’s fiction. But in truth, every practice area has its plusses but also its minuses. Increased pay is one way (and I believe the best way) of changing the balance to favor the plusses.
This being a crisis, hopefully the committee will consider any suggestion – and come up with some of their own. And hopefully we’ll have a few more Kim Wexlers in the future.
