Notice of Proposed Order of the Office of the State Public Defender Adopting Rules
(Wis. Admin. Code Chapter PD 1.03 (2), PD 1.03 (3), PD 1.03 (4), PD 1.05 (2), and PD 1.05 (6))
The State of Wisconsin Public Defender Board (SPD) proposes an order to amend PD 1.03 (2) (a) 7., PD 1.03 (3) (b), PD 1.03 (4), PD 1.05 (2), and PD 1.05 (6), relating to the state public defender and the state public defender Board’s authority to impose conditions on an attorney’s application for recertification and timeframe for an attorney to appeal the state public defender’s decision to temporarily suspend an attorney’s certification pending investigation.
Statutes Interpreted
Sections 977.02 (7)
Statutory Authority
Sections 977.02 (7)
Agency Authority
The state public defender is governed by ch. 977, Wis. Stats. The state public defender provides legal services for indigent individuals involved in criminal, juvenile, mental health, termination of parental rights, and other enumerated proceedings under s. 977.05, Wis. Stats. Under s. 977.08, the state public defender may delegate the legal representation of any person to any member of the State Bar of Wisconsin who is certified by the state public defender to take cases.  The state public defender certifies attorneys to represent clients under s. PD 1.
The state public defender is overseen by the state public defender Board; the Board’s duties are outlined in s. 977.02. One of the Board’s duties is to review decisions of the state public defender’s certification decisions pursuant to s. 977.02 (7) and s. PD 1.05.  Under s. PD 1.05 (6), the Board must issue a written decision affirming, reversing or modifying the decision of the state public defender.
The proposed rule would explicitly authorize the state public defender Board to impose conditions on an attorney’s continued certification and authorize both the state public defender and the state public defender Board to impose conditions on an attorney’s application for recertification, including a specified time period before the attorney may reapply for recertification.  The proposed rule would also require an attorney seeking reinstatement following decertification to comply with all conditions imposed by the state public defender or the state public defender Board before submitting an application for recertification.  The proposed rule would also clarify the timing for appeals of suspensions.
Related Statutes or Rules
None
Plain Language Analysis
The state public defender is responsible for providing legal services to indigent individuals in criminal, juvenile, mental health, termination of parental rights, and other enumerated proceedings under s. 977.05, Wis. Stats. Under s. 977.08, the state public defender may delegate the legal representation of any person to any member of the State Bar of Wisconsin who is certified by the state public defender to take cases.  The state public defender certifies attorneys to represent clients under ch. PD 1.
The state public defender may take a number of actions regarding an attorney’s certification status. For cause, the state public defender may deny an attorney’s application for certification or recertification; return an attorney to provisional certification; exclude an attorney from any certification list under s. PD 1.04; suspend an attorney’s certification status; caution an attorney; impose conditions upon an attorney’s continued certification; or take any other action that is consistent with the best interests of clients, the interests of justice, or the interests of the state public defender.  
The proposed rule would authorize the state public defender to impose conditions on an attorney’s application for recertification, including a specified time period before the attorney may apply for recertification. The proposed rule would require an attorney to comply with all conditions imposed by the state public defender before submitting an application for recertification.
An attorney may appeal the state public defender’s certification decision to the state public defender Board.  After the Board hears the matter, the board issues a written decision constituting findings of fact and conclusions of law.  The board may affirm, reverse or modify the state public defender’s certification decision.  The proposed rule would explicitly authorize the Board to impose conditions on an attorney’s continued certification or application for recertification, including a specified time period before the attorney may apply for recertification. The proposed rule would require an attorney to comply with all conditions imposed by the state public defender Board under those circumstances.
The objective of the proposed rule is to prevent an attorney who has been decertified from immediately reapplying for recertification without addressing any of the issues that led to the decertification.  The state public defender is currently authorized to take any action that is consistent with the best interests of clients, the interests of justice, or the interests of the state public defender; the proposed rule would make clear that one of the actions the state public defender may take is to place particular conditions on an attorney’s application for recertification, including a specified time period before an attorney may reapply.  The proposed rule would provide the state public defender Board with the same explicit authority.  
The state public defender is authorized to suspend an attorney from its certification lists pending the outcome of an investigation of the attorney’s performance; an investigation of alleged fraudulent, unreasonable, or inaccurate billing practices or other misconduct; of failure to comply with any provisions of chapter PD 1; or in response to a request for decertification.  The state public defender may suspend an attorney pending investigation for 120 days, exclusive of any time attributable to the lack of cooperation from the attorney under investigation. The state public defender may extend the suspension by a period not to exceed an additional 30 days in order to complete the investigation. The current rule states that “[s]uspensions that exceed these time limits may be appealed under s. PD 1.05.”
The proposed rule would clarify that an attorney may appeal a suspension under s. PD 1.03(b) 120 days after the notice of suspension. The proposed rule allows the state public defender to complete its investigation before an attorney may appeal the suspension.  If the investigation is completed sooner than 120 days and results in an adverse certification decision, the attorney may appeal the adverse decision pursuant to s. PD 1.05.
Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations
There are no existing or proposed federal regulations that address the activities of the proposed rules.
Comparison with Rules in Adjacent States
Adjacent states (Illinois, Iowa, Michigan, and Minnesota) have different structures from Wisconsin’s and do not have comparable rules.
Summary of Factual Data and Analytical Methodologies
None
Analysis and Supporting Documents Used to Determine Effect on Small Business or in Preparation of an Economic Impact Analysis
The rule has minimal impact on small businesses. The rule will impact only those private bar attorneys who appeal the state public defender’s certification decision and on whose certification the state public defender or state public defender Board determines it is necessary to place specific conditions. Given the number of appeals of certification decisions the state public defender Board considers, the rule is likely to impact less than one private bar attorney per year.
Effect on Small Business
Minimal
Agency Contact Person
Devon Lee, leede@opd.wi.gov or (608) 261-0633
Office of the State Public Defender
17 S. Fairchild Street, 5th Floor
Madison, WI 53703
Place to Submit Comments
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