977.08 Appointment of counsel.
(1) If the representative or the authority for indigency determinations specified under s. 977.07 (1) refers a case to or within the office of the state public defender or if a case is referred under s. 48.23 (4), 51.60, 55.105, 938.23 (4), or 980.03 (2) (a), the state public defender shall assign counsel according to subs. (3) and (4). If a defendant makes a request for change of attorney assignment, the change of attorney must be approved by the circuit court.
(2) All attorneys in a county shall be notified in writing by the state public defender that a set of lists is being prepared of attorneys willing to represent persons referred under s. 48.23 (4), 51.60, 55.105, 938.23 (4), or 980.03 (2) (a) and indigent clients in the following:
(a) Cases involving persons charged with a crime against life under ss. 940.01 to 940.12.
(b) Cases involving persons charged with a felony not specified under par. (a).
(c) Cases involving persons charged with a misdemeanor that is punishable by imprisonment but is not specified under par. (a).
(e) Cases involving children who are entitled to counsel or are provided counsel at the discretion of the court under s. 48.23 or 938.23.
(g) Cases involving persons entitled to counsel under ch. 48.
(h) Cases involving paternity determinations as provided in s. 767.83.
(3)
(a) Attorneys notified under sub. (2) shall have a reasonable time to submit their names for inclusion on any or all of the lists. Attorneys shall, in submitting their names, set forth their legal education and experience which qualifies them to provide representation in the types of cases they have expressed an interest in handling. The state public defender shall compile a list of the names and qualifications submitted.
(b) A final set of lists for each county shall be prepared, certified and annually updated by the state public defender. Persons may not be excluded from any list unless the state public defender states in writing the reasons for such action in the context of existing rules adopted by the state public defender board. Any attorney thus excluded shall then have the opportunity to appeal the state public defender's decision to the board, which shall issue a final decision in writing.
(c) A person appointed from the set of lists prepared under par. (b) shall be appointed in order from the top of each list; if any attorney thus appointed states in writing that he or she cannot accept the appointment, he or she shall be placed on the bottom of the list, and the attorney thus elevated to the top of the list shall be appointed.
(d) Whenever the director of a local public defender organization is appointed as counsel, he or she may assign the case to any qualified attorney or attorneys employed by the local public defender organization.
(e) An attorney may be appointed without regard to pars. (c) and (d) if the attorney is currently or has previously represented the defendant. Any appointment out of order shall serve in lieu of an appointment in the regular order.
(f) The state public defender shall enter into as many annual contracts as possible, subject to par. (fg), with private local attorneys or law firms for the provision of legal representation. Under any such contract, the state public defender shall assign cases without regard to pars. (c) and (d), shall set a fixed-fee total amount for all cases handled and shall pay that amount, except that the state public defender may not pay an attorney more for a case than he or she would receive according to the rates under sub. (4m). The contract shall include a procedure authorizing the state public defender to make additional payments for a case or to reassign a case if the circumstances surrounding the case justify the additional payment or reassignment.
(fg) The total number of cases that may be subject to the annual contracts under par. (f) for a given year may not exceed 33 percent of the total number of cases at the trial level that are assigned by the state public defender to private counsel under this section for that year.
(g) The state public defender may appoint an attorney without regard to pars. (c) and (d) based on the state public defender's evaluation of that attorney's performance if the board promulgates rules under s. 977.03 (3).
(4) At the conclusion of each case, any private local attorney who has been appointed shall submit a copy of his or her bill to the state public defender. The state public defender shall review the bill and reject it or approve it in whole or in part. The state public defender shall then pay the bill according to the rates under sub. (4m). Any attorney dissatisfied with the decision of the state public defender regarding the bill may have the decision reviewed by the board. This subsection does not apply if the attorney is working under an agreement authorized under s. 977.02 (7m) or a contract authorized under sub. (3) (f).
(4m)
(a) Unless otherwise provided by a rule promulgated under s. 977.02 (7r), for cases assigned before December 1, 1992, private local attorneys shall be paid $45 per hour for time spent in court; $35 per hour for time spent out of court, excluding travel, related to a case; and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney's principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney's principal office.
(b) Unless otherwise provided by a rule promulgated under s. 977.02 (7r) or by a contract authorized under sub. (3) (f), for cases assigned on or after December 1, 1992, and before July 29, 1995, private local attorneys shall be paid $50 per hour for time spent in court; $40 per hour for time spent out of court, excluding travel, related to a case; and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney's principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney's principal office.
(c) Unless otherwise provided by a rule promulgated under s. 977.02 (7r) or by a contract authorized under sub. (3) (f), for cases assigned on or after July 29, 1995, and before January 1, 2020, private local attorneys shall be paid $40 per hour for time spent related to a case, excluding travel, and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney's principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney's principal office.
(d) Unless otherwise provided by a rule promulgated under s. 977.02 (7r) or by a contract authorized under sub. (3) (f), for cases assigned on or after January 1, 2020, private local attorneys shall be paid $70 per hour for time spent related to a case, excluding travel, and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney's principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney's principal office.
(5)
(a) The purpose of this subsection is to provide standards for use in budgetary determinations.
(bn) Except as provided in par. (br), any of the following constitutes an annual caseload standard for an assistant state public defender in the subunit responsible for trials:
1. Felony cases not specified in subd. 1m.: 184.5.
1m. First-degree intentional homicide cases: 15.
1r. Cases representing persons under s. 980.05: 15.
2. Misdemeanor cases: 492.
3. Cases not covered under subd. 1., 1m., 1r. or 2.: 246.
(br) Beginning on July 1, 2000, the state public defender may exempt up to 10 full-time assistant state public defenders in the subunit responsible for trials from the annual caseload standards under par. (bn) based on their need to perform other assigned duties.
(c) At the trial level, 67 percent of the felony and juvenile cases shall be handled within the office.
History: 1977 c. 29, 354; 1979 c. 352, 356; 1981 c. 20; 1983 a. 377; 1985 a. 29 ss. 2473 to 2476a, 3202 (42); 1985 a. 120; 1987 a. 27, 399; 1989 a. 12; 1991 a. 39, 263; 1993 a. 16, 318, 423, 451, 491; 1995 a. 27, 77; 1997 a. 27; 1999 a. 9; 2005 a. 443 s. 265; 2007 a. 20; 2017 a. 184; 2019 a. 9.
The courts' power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court-ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified and effective counsel at that rate, but should order compensation at the rate under SCR 81.01 or 81.02, or a higher rate when necessary, to secure effective counsel. Friedrich v. Dane County Circuit Ct. 192 Wis. 2d 1, 531 N.W.2d 32 (1995).