Chapter PD 1

PD 1.03 Note Note: Certification application forms and information are published as ch. PD 1 Appendix A to E and are available on the public defender website, www.wisspd.org, or from the Assigned Counsel Division, Office of the State Public Defender, P.O. Box 7923, Madison, WI 53707-7923, phone [phone]. The link to the current certification application is: http://www. wisspd.org/html/acd/certform.pdf.

PD 1.03(2) (2) Public defender’s certification decision.

PD 1.03(2)(a) (a) For cause, the state public defender may take any of the following actions regarding an attorney’s certification status:

PD 1.03(2)(a)1. 1. Deny an application for certification or recertification.

PD 1.03(2)(a)2. 2. Return an attorney to provisional certification under s. PD 1.037.

PD 1.03(2)(a)3. 3. Exclude an attorney from any certification list in s. PD 1.04.

PD 1.03(2)(a)4. 4. Suspend an attorney’s certification status under sub. (3).

PD 1.03(2)(a)5. 5. Decertify an attorney under sub. (4).

PD 1.03(2)(a)6. 6. Caution an attorney.

PD 1.03(2)(a)7. 7. Impose conditions upon an attorney’s continued certification.

PD 1.03(2)(a)8. 8. 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.

PD 1.03(2)(b) (b) The state public defender shall inform the attorney in writing of the reasons for the adverse certification decision and the manner by which the attorney may appeal the decision.

PD 1.03(3) (3) Suspension.

PD 1.03(3)(a) (a) The state public defender may suspend the attorney from any or all of the certification lists in s. PD 1.04 under any of the following circumstances:

PD 1.03(3)(a)1. 1. Pending the outcome of the investigation into the attorney’s performance; an allegation of fraudulent, unreasonable or inaccurate billing practices or other misconduct; or of failure to comply with any provision of this chapter.

PD 1.03(3)(a)2. 2. In response to a request for decertification.

PD 1.03(3)(b) (b) The suspension under par. (a) may not exceed 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. Suspensions that exceed these time limits may be appealed under s. PD 1.05.

PD 1.03(4) (4) Decertification. Any interested party may request in writing that an attorney, previously certified to accept cases from the state public defender, be decertified for cause. Upon receipt of a request, the state public defender shall conduct an investigation. Upon a finding of cause, the state public defender may decertify the attorney and exclude the attorney from any or all of the certification lists in s. PD 1.04. An attorney seeking reinstatement to a certification list following decertification shall submit an application as provided in sub. (1).

PD 1.03(5) (5) Discretionary considerations. The state public defender’s exercise of discretion and determination whether cause exists to take any action under this chapter may include consideration of any of the following factors:

PD 1.03(5)(a) (a) In this or any other jurisdiction, the attorney is or has been disbarred, has or has had his or her license to practice law suspended, or has surrendered his or her license to practice law.

PD 1.03(5)(b) (b) The attorney fails or has failed to meet the education or experience requirements under this chapter.

PD 1.03(5)(c) (c) The attorney’s conduct while employed by the state public defender, another law office or another governmental agency in Wisconsin or in another jurisdiction raises a concern about the attorney’s character, performance, ability or behavior.

PD 1.03(5)(d) (d) The attorney engages or has engaged in fraudulent, unreasonable or inaccurate billing to the state public defender or any other governmental agency or organization.

PD 1.03(5)(e) (e) The attorney fails or has failed to meet minimum attorney performance standards adopted by the state public defender or to comply with the supreme court rules of professional conduct for attorneys.

PD 1.03(5)(f) (f) The attorney fails or has failed to follow the state public defender’s procedures for billing or for approval of expenses.

PD 1.03(5)(g) (g) The attorney is or has been the subject of a formal complaint filed by the office of lawyer regulation with the supreme court or filed with an organization that is responsible for enforcement of lawyer regulation in any other jurisdiction.

PD 1.03(5)(h) (h) The attorney is or has been the subject of a finding of dishonesty or incapacity by the client protection fund in an award to a claimant.

PD 1.03(5)(i) (i) The attorney is convicted of any crime that reflects adversely on the attorney’s honesty, trustworthiness or fitness as a lawyer.

PD 1.03(5)(j) (j) The attorney engages in conduct contrary to the interests of clients, the interests of justice, or the interests of the state public defender.

PD 1.03(5)(k) (k) The attorney is barred by statute from engaging in criminal or other public defender case representation.

PD 1.03(5)(L) (L) The attorney fails or has failed to cooperate with an investigation under this chapter.

PD 1.03(5)(m) (m) The conduct of an attorney that formed the basis for voluntary removal or for an investigation or decision regarding the attorney’s license to practice law, certification to accept appointments, or billing practices, in Wisconsin or in any other jurisdiction continues to raise a concern about the attorney’s character, performance, ability or behavior.

PD 1.03(5)(n) (n) The attorney requests to be removed from any or all certification lists at a time when the attorney is the subject of a pending inquiry or investigation concerning performance or billing practices.

PD 1.03(5)(o) (o) The attorney fails to comply with this chapter.

PD 1.03(5)(p) (p) The state public defender learns of any other information that raises a concern about the attorney’s character, performance, ability or behavior.

PD 1.03 History History: Cr. Register, August, 1978, No. 272, eff. 9-1-78; CR 09-067: am. (title), renum. to be (1) and am., cr. (2) to (5) Register June 2010 No. 654, eff. 7-1-10.

PD 1.035 PD 1.035 Requirements for certification. In order to obtain and retain certification under this chapter, an attorney shall satisfy all of the following requirements:

PD 1.035(1) (1) Application. The attorney shall submit an application under s. PD 1.03 (1).

PD 1.035(2) (2) License to practice. The attorney shall be licensed to practice law in Wisconsin and shall be a member in good standing of the State Bar of Wisconsin.

PD 1.035(3) (3) Residence.

PD 1.035(3)(a) (a) The attorney shall reside in or maintain his or her principal office in Wisconsin. A post office box in Wisconsin does not constitute a residence or a principal office in Wisconsin.

PD 1.035(3)(b) (b) An attorney may be certified for trial division cases in only those counties in which he or she resides or maintains his or her principal office, except that in counties with less than ten attorneys on any certification list, an attorney residing or maintaining his or her principal office in one or more adjacent counties may also be certified.

PD 1.035(3)(c) (c) Notwithstanding pars. (a) and (b), the state public defender may, on a case-by-case basis, certify an attorney to handle a case if such certification is necessary for effective client representation. Relevant considerations include, but are not limited to, caseload, availability of other counsel, proximity to the court, and cost-effectiveness.

PD 1.035(4) (4) Continuing legal education.

PD 1.035(4)(a) (a) The attorney shall complete six credits of continuing legal education each calendar year in courses approved by the state public defender. This requirement shall apply beginning in the first full calendar year following an attorney’s graduation from law school.

PD 1.035(4)(b) (b) The attorney shall report compliance with par. (a) under the procedures established by the state public defender. The state public defender shall calculate continuing education credits in the same manner as the board of bar examiners.

PD 1.035(4)(c) (c) The state public defender shall offer training for attorneys seeking certification under this chapter. As used in s. 977.05 (5) (e), Stats., relating to sponsoring conferences and training, “sponsor” means to use state public defender resources to produce and promote state public defender conferences and training programs and “tuition” means all revenue realized from state public defender conferences and training programs and materials.

PD 1.035(5) (5) Cooperation with inquiries.

PD 1.035(5)(a) (a) An attorney shall cooperate with inquiries from the state public defender regarding the status of appointed cases, and regarding performance or billing in appointed cases.

PD 1.035(5)(b) (b) An attorney who receives a written request to provide a response shall respond in writing and within the deadlines presented with the request. An attorney who fails to do so may be suspended from further appointments under s. PD 1.03 (3) until an adequate response is provided.

PD 1.035 History History: Cr. Register, July, 1997, No. 499, eff. 8-1-97; CR 09-067: r. and recr. Register June 2010 No. 654, eff. 7-1-10.

PD 1.037 PD 1.037 Provisional certification.

PD 1.037(1) (1) Applicability. The state public defender may provisionally certify an attorney. All attorneys who have not been previously certified and all attorneys whose certification status is reinstated shall be provisionally certified under this section.

PD 1.037(2) (2) Review.

PD 1.037(2)(a) (a) After one year of provisional certification, the state public defender shall review the attorney’s performance and determine the attorney’s future certification status. The public defender may continue provisional certification, grant non-provisional certification, or discontinue provisional certification and exclude the attorney from any or all certification lists.

PD 1.037(2)(b) (b) The state public defender may require a provisionally certified attorney to provide a letter from at least one judge supporting non-provisional certification.

PD 1.037(2)(c) (c) The state public defender’s determination may be based upon, but is not limited to: a review of briefs and client files; billing records; client communications; court records; telephone or personal conferences; and recommendations of judges and attorneys.

PD 1.037(2)(d) (d) The state public defender’s determination shall consider the extent to which the provisionally certified attorney has satisfied the supreme court rules of professional conduct for attorneys and the minimum attorney performance standards adopted by the state public defender.

PD 1.037(3) (3) Continuation. If provisional certification is continued, the attorney’s performance shall be reviewed again under sub. (2) after a period of time set by the state public defender, not to exceed one year.

PD 1.037(4) (4) Appeal. An attorney may appeal the state public defender’s decision to discontinue provisional certification and to exclude the attorney from any or all certification lists as provided in s. PD 1.05.

PD 1.037(5) (5) Provisional certification in lieu of decertification. The state public defender may change an attorney’s certification status to provisional certification in lieu of pursuing decertification as provided in s. PD 1.03 (4).

PD 1.037 History History: CR 09-067: cr. Register June 2010 No. 654, eff. 7-1-10.

PD 1.04 PD 1.04 Certification lists. An attorney may be placed on the list to accept an appointment to represent state public defender clients in the following case types if the attorney requests appointments in the case type, satisfies the requirements of s. PD 1.035, and satisfies the following additional criteria:

PD 1.04(1) (1) Misdemeanors. For misdemeanor cases, no additional criteria.

PD 1.04(2) (2) Paternity cases. For paternity cases, no additional criteria.

PD 1.04(3) (3) Felonies.

PD 1.04(3)(a) (a) Class G, H or I. For a class G to I felony case, the attorney has satisfied both of the following criteria within the five years immediately preceding the application for certification:

PD 1.04(3)(a)1. 1. Been trial counsel, alone or with other trial counsel.

PD 1.04(3)(a)2. 2. Has litigated a significant portion of one completed jury trial, two trials to a court of record, or four testimonial hearings before a court of record, but not including a proceeding to revoke probation, parole or extended supervision.

PD 1.04(3)(b) (b) Class D, E and F. For a class D to F felony case, the attorney has satisfied either of the following criteria within the five years immediately preceding the application for certification:

PD 1.04(3)(b)1. 1. Been sole trial counsel in at least one felony case tried to a jury to final resolution.

PD 1.04(3)(b)2. 2. Been trial counsel, alone or with another attorney, and litigated a significant portion of three civil or criminal cases tried to a jury to final resolution.

PD 1.04(3)(c) (c) Class B and C. For a class B or C felony case, the attorney has been sole trial counsel in at least four cases tried to a jury to final resolution, at least one of which was a felony, within the five years immediately preceding the application for certification.

PD 1.04(3)(d) (d) Class A. For a class A felony case, the attorney has satisfied all of the following criteria:

PD 1.04(3)(d)1. 1. The attorney maintained a significant portion of his or her practice in criminal law within the five years immediately preceding the application for certification.

PD 1.04(3)(d)2. 2. The attorney has been sole or lead trial counsel in at least two class A to D felony cases tried to a jury to final resolution within the five years immediately preceding the application for certification.

PD 1.04(3)(d)3. 3. The attorney submitted to peer review, including reference checks with other criminal defense attorneys, prosecutors, judges and public defender staff.

PD 1.04(3)(d)4. 4. The attorney has submitted a writing sample, consisting of a court memorandum or brief concerning criminal law issues that was written within the two years immediately preceding the application for certification, which was reviewed and approved by the state public defender.

PD 1.04(3)(d)5. 5. The attorney has submitted any requested information relevant to a determination of the attorney’s qualifications.

PD 1.04(4) (4) Unclassified crimes. For a case alleging an unclassified crime, the attorney satisfies the certification criteria for the case type with a corresponding maximum penalty.

PD 1.04(5) (5) Writs and extraditions. For a writ or extradition case, the attorney satisfies the certification criteria for the case type alleged in the extradition request or that is the subject of the writ.

PD 1.04(6) (6) Chapter 980 sexually violent person commitments. For a case filed under ch. 980, Stats., the attorney has been sole trial counsel in at least four cases tried to a jury to final resolution, at least one of which was a felony, within the five years immediately preceding the application for certification.

PD 1.04(7) (7) Children’s and juvenile court cases alleging behavior that could be prosecuted as a misdemeanor. For a case filed under ch. 48 or 938, Stats., alleging behavior that could be prosecuted as a misdemeanor in criminal court, the attorney has satisfied either of the following criteria:

PD 1.04(7)(a) (a) Completed four credits of state public defender approved legal education in ch. 48 or 938, Stats., cases.

PD 1.04(7)(b) (b) Agreed in writing to complete four credits of state public defender approved legal education in ch. 48 or 938, Stats., cases during the first year of his or her provisional certification under s. PD 1.037.

PD 1.04(8) (8) Juvenile court or juvenile waiver cases alleging behavior that could be prosecuted as a class E to I felony. For a case filed under ch. 938 in which the most serious allegation could be a class E to I felony if prosecuted in criminal court, or a case seeking to waive a juvenile into criminal court for behavior that could be a class E to I felony in criminal court, the attorney has satisfied the criteria in sub. (3) (a) and is certified for cases under sub. (7).

PD 1.04(9) (9) Juvenile court or juvenile waiver cases alleging behavior that could be prosecuted as a class B to D felony. For a case filed under ch. 938 in which the most serious allegation could be a class B to D felony if prosecuted in criminal court, or a case seeking to waive a juvenile into criminal court for behavior that could be a class B to D felony in criminal court, the attorney has satisfied the criteria in sub. (3) (b) and has been sole trial counsel in at least three trials to the court in ch. 938, Stats., cases in which the most serious allegation would be a felony if prosecuted in criminal court.

PD 1.04(10) (10) Termination of parental rights cases. For a termination of parental rights case under ch. 48, Stats., the attorney has satisfied all of the following criteria:

PD 1.04(10)(a) (a) Satisfied the criteria in sub. (3) (a).