Chapter PD 3

Chapter PD 3

INDIGENCY CRITERIA

PD 3.01   General rule.

PD 3.015   Verification.

PD 3.02   Cost of retained counsel.

PD 3.03   Determination of financial eligibility.

PD 3.04   Information provided to applicants.

PD 3.05   Certified statement.

PD 3.055   Voluntary termination of employment or disposal of assets.

PD 3.06   Access to financial evaluations.

PD 3.07   Change of circumstances.

Ch. PD 3 Note Note: Chapter SPD 3 was renumbered chapter PD 3 under s. 13.93 (2m) (b) 1., Stats., Register, July, 1995, No. 475.

PD 3.01 PD 3.01 General rule. Except as provided in s. 977.07 (1), Stats., an applicant for appointment of counsel by the state public defender shall meet the financial criteria set forth in this chapter.

PD 3.01 History History: Cr. Register, August, 1978, No. 272, eff. 9-1-78; CR 09-068: am. Register May 2010 No. 653, eff. 6-1-10; CR 10-133: r. and recr. Register April 2011 No. 664, eff. 6-19-11.

PD 3.015 PD 3.015 Verification. In order to screen the eligibility of applicants and collect amounts owed as payment for representation, the state public defender may verify information related to eligibility, including social security numbers, income records, and proof of eligibility for income-based programs.

PD 3.015 Note Note: In its November 1994 report, the legislative audit bureau (LAB) recommended that the state public defender implement a system of verifying financial information provided by applicants in the course of indigency determinations. LAB acknowledged that existing procedures were adequate for incarcerated applicants who could not have their spouses provide verification. The state public defender board strongly supports the goals of enhancing the accuracy of indigency determinations and providing representation by the state public defender to only those persons who are eligible. Therefore, the state public defender has adopted s. PD 3.015.

PD 3.015 History History: Cr. Register, January, 1996, No. 481, eff. 2-1-96; CR 10-133: am. Register April 2011 No. 664, eff. 6-19-11.

PD 3.02 PD 3.02 Cost of retained counsel.

PD 3.02(1) (1) The anticipated cost of retaining counsel shall be determined by this schedule:

- See PDF for table

PD 3.02(2) (2) The state public defender shall establish the cost of retaining counsel for any proceeding not covered by the schedule in sub. (1).

PD 3.02(3) (3) The state public defender shall periodically review the actual cost of retaining private counsel and report these findings to the state public defender board. The state public defender board may revise the schedule of the anticipated cost of retaining counsel.

PD 3.02(4) (4) The state public defender may consider, in the case of an applicant who is the subject of two or more separate proceedings, the anticipated cost of retaining counsel in multiple proceedings.

PD 3.02 History History: Cr. Register, August, 1978, No. 272, eff. 9-1-78; am. (1) renum. (2) to be (3) and am., cr. (2), Register, November, 1984, No. 347, eff. 12-1-84; am. (1), Register, January, 1992, No. 433, eff. 2-1-92; emerg. am. (1), eff. 5-12-95; am. (1), Register, January, 1996, No. 481, eff. 2-1-96; am. (1), Register, April, 1996, No. 484, eff. 5-1-96; am. (1), Register, May, 1997, No. 497, eff. 6-1-97; am. (1), Register, October, 1998, No. 514, eff. 11-1-98; CR 10-133: r. and recr. Register April 2011 No. 664, eff. 6-19-11; CR 13-049: am. (1) Register January 2014 No. 697, eff. 2-1-14.

PD 3.03 PD 3.03 Determination of financial eligibility.

PD 3.03(1) (1) An applicant is financially eligible for appointment of counsel by the state public defender if both of the following criteria are met:

PD 3.03(1)(a) (a) Asset limitations. The anticipated cost of retained counsel under s. PD 3.02 exceeds the applicant’s family assets deemed available under sub. (2) to pay the costs of legal representation.

PD 3.03(1)(b) (b) Income limitations. The anticipated cost of retained counsel under s. PD 3.02 exceeds the applicant’s family income deemed available under sub. (3) to pay the costs of legal representation.

PD 3.03(2) (2) The state public defender shall treat assets as available to the person to pay the costs of legal representation if the assets exceed $2500 in combined equity value except that the state public defender shall exclude the equity value of vehicles up to a total equity value of $10,000 and shall exclude the first $30,000 of the equity value of the home that serves as the individual’s homestead.

PD 3.03(3) (3) Subject to subs. (4) and (5), the state public defender shall consider income as available to pay the costs of legal representation if the gross income exceeds 115 percent of the federal poverty guidelines, as defined in 42 U.S.C. s. 9902 (2) (2011).

PD 3.03(4) (4) For the purpose of the calculations under this section, the state public defender shall consider the applicant’s anticipated income for the time period beginning at the time of the application and continuing for the following time:

PD 3.03(4)(a) (a) For felony cases and cases under ch. 980, Stats., six months.

PD 3.03(4)(b) (b) For appellate cases, eight months.

PD 3.03(4)(c) (c) For cases under chs. 51 and 55, Stats., two months.

PD 3.03(4)(d) (d) For all other cases, four months.

PD 3.03(5) (5) 

PD 3.03(5)(a) (a) Notwithstanding the criteria in sub. (1), an applicant is financially eligible for appointment of an attorney by the state public defender if the applicant’s only income is derived from one or more of the following sources:

PD 3.03(5)(a)1. 1. A Wisconsin works employment position under s. 49.148 (1) (a), (b), or (c), Stats.

PD 3.03(5)(a)2. 2. Wisconsin works benefits under s. 49.148 (1m), Stats.

PD 3.03(5)(a)3. 3. Supplemental security income for the aged, blind, and disabled under 42 U.S.C. 1381-1383c, relief as defined in s. 49.01 (3), Stats., or any other similar needs-based financial assistance program.

PD 3.03(5)(b) (b) Notwithstanding sub. (1), an applicant is financially eligible for appointment of appellate counsel if the applicant has filed a notice of intent to pursue post-conviction relief under s. 809.30 (2) (b), Stats., indicating that:

PD 3.03(5)(b)1. 1. The state public defender has appointed counsel in the case.

PD 3.03(5)(b)2. 2. His or her financial circumstances have not materially changed since the date on which the applicant was determined to be eligible for the appointment of counsel in that case.

PD 3.03(6) (6) For the purpose of the calculations under this section, the state public defender shall consider assets and income of the applicant’s spouse as the applicant’s assets and income, unless the spouse is alleged to be the victim of a crime allegedly committed by the applicant.

PD 3.03(7) (7) If a parent subject to s. 48.275 (2) (b) or 938.275 (2) (b), Stats., has available income or assets greater than $100, but less than the anticipated cost of counsel, the parent shall be determined to be indigent in part.

PD 3.03(8) (8) If a person subject to s. 51.605 (1) or 55.107 (1), Stats., has available income or assets greater than $100, but less than the anticipated cost of counsel, the parent shall be determined to be indigent in part.

PD 3.03(9) (9) The state public defender shall annually review the standards specified in this chapter and shall revise these standards as required.

PD 3.03 History History: Cr. Register, August, 1978, No. 272, eff. 9-1-78; am. (2), Register, August, 1981, No. 308, eff. 9-1-81; am. (1) (b), (2) and (4), Register, November, 1984, No. 347, eff. 12-1-84; renum. (1) (b) and (c) to be (1) (c) and (d), cr. (1) (b), am. (2), Register, April, 1990, No. 412, eff. 5-1-90; am. (2) and (4), Register, August, 1990, No. 416, eff. 9-1-90; emerg. am. (1) (c), (2) and (4), cr. (2m), eff. 5-12-95; am. (1) (c), (2) and (4), cr. (2m), Register, January, 1996, No. 481, eff. 2-1-96; CR 10-133: r. and recr. Register April 2011 No. 664, eff. 6-19-11: CR 12-017: am. (2), (3) Register July 2013 No. 691, eff. 8-1-13.

PD 3.04 PD 3.04 Information provided to applicants. Before asking an applicant for financial information, the state public defender shall inform the applicant of all of the following:

PD 3.04(1) (1) The applicant will be required to certify, under s. PD 3.05 (1), the truthfulness of the financial information provided.

PD 3.04(2) (2) The financial information provided by the applicant is not protected by the attorney-client privilege.

PD 3.04(3) (3) The applicant may be prosecuted for a felony offense if the applicant intentionally provides false information.

PD 3.04 History History: CR 10-133: cr. Register April 2011 No. 664, eff. 6-19-11.

PD 3.05 PD 3.05 Certified statement.

PD 3.05(1) (1) Except as provided in s. 977.07 (1), Stats., all applicants for appointment of counsel by the state public defender shall be required to provide truthful information in a financial evaluation form as required under this chapter. Except as provided in s. 977.06 (2), Stats., all such applicants shall sign a completed financial evaluation form certifying that the financial information that they have provided is accurate to the best of their knowledge and belief, and that they have not disposed of any assets for the purpose of qualifying for the appointment of counsel.

PD 3.05 Note Note: Revised indigency evaluation forms can be obtained at no charge from the Office of the State Public Defender, Administration, 315 N. Henry Street, 2nd Floor, Madison, WI 53707.

PD 3.05(2) (2) The state public defender may appoint counsel pursuant to telephone eligibility interviews, in which cases the clients shall sign the financial evaluation form as soon thereafter as practicable.

PD 3.05(3) (3) The state public defender shall retain for 3 years all financial evaluations. After such time they shall be maintained pursuant to s. 16.61 (4), Stats.