Keep it going: Delegates urge continued momentum on bar advocate pay issue

Issue November 2004

Members of the House of Delegates are adamant that the issue of providing adequate pay for bar counsel gets resolved soon and are urging fellow attorneys to keep momentum going.

"We really can't let our guard down," said House of Delegates member Peter T. Elikann during the HOD's kickoff meeting of the year, which was held Sept. 29 at Gillette Stadium in Foxborough.

"It's not even just a matter of principle," Elikann said. "It really is the money … If we let our guard down, it's not going to go away, it's going to be a real crisis … Money is not there and people cannot afford to do bar advocate work anymore."

MBA President Kathleen M. O'Donnell said improving pay rates for bar counsel will be at the forefront of her administration this year and she invited William J. Leahy, chief counsel of Committee for Public Counsel Services, to speak.

Leahy thanked the MBA for its longstanding support of bar advocates, citing a 1994 study by the MBA, which called for significant pay increases for bar advocates. Compensation for bar advocates has been a serious issue for the bar for a decade. It reached crisis proportions in the last year when attorneys had to stop accepting cases due to the pay rates, which are among the lowest in the country.

That prompted Gov. Mitt Romney to call a press conference in August in which he chastised attorneys for not taking cases. Though the legislature this summer enacted a $7.50 per hour pay raise for attorneys, the rates in Massachusetts remain drastically lower than in other states and are such that some attorneys are paying more in overhead costs than what they are taking in to represent the indigent clients.

"Now this press conference has the governor asking people to believe that $37.50, $46 and $61 is adequate to fulfill the commonwealth's obligation," Leahy said. "We had a unanimous decision from the Supreme Judicial Court this summer that said the rates are unconstitutionally low. That decision is not going away. That decision is settled law."

The central question in the controversy is that, until Aug. 1, the more than 2,000 private attorneys who handle the nearly 200,000 court-appointed criminal cases in Massachusetts yearly were paid $30 per hour for assignments on district court criminal cases (misdemeanors and concurrent jurisdiction felonies), $39 per hour for assignments on superior court criminal cases (major felonies) and $54 per hour for assignments on murder cases, ranking them third-lowest-paid bar advocates in the country. On July 31, the legislature voted an across-the-board $7.50 per hour pay increase. This pay increase is virtually the first raise for bar advocates since 1984.

The legislature's vote came one week after the Supreme Judicial Court ruled that poor criminal defendants in Hampden County, where the shortage of attorneys has been most acute, should be freed from jail if they are not assigned a lawyer after seven days. The SJC also said "chronic underfunding" of legal services for the poor is making it impossible to find lawyers to take cases and ordered that charges be dismissed for defendants who go 45 days without a lawyer.

Leahy said three issues would continue to remain important in attacking the problem: lobbying legislators for change, litigation concerning the pay rates and a state commission which is in place to review and recommend changes.

Still, House of Delegates members expressed their concern that since the later part of the summer the momentum for making strides has begun to lag as attorneys are beginning to take cases again despite the low rates.

"It seems like we've lost the fire," said Individual Rights & Responsibilities Section Chair Reynold A. Ilg, Jr. "It's not a crisis anymore. People are being appointed … It seems to me like the battle has stopped and Romney has won … and that concerns me … This bar association is the one bar association who can do anything about it and speak with one unified voice. We have to keep it moving. It cannot stop."

Leahy, however, said he is confident that the issue will not take another 10 years - let alone six months - to resolve.

"We've taken blows this year," Leahy said. "We've taken some criticism. We are going to build a stable basis by which the commonwealth can being to comply with its constitution."

Beyond a significant discussion on the pay for bar advocates, members discussed several other important issues, including a Post-Goodridge Task Force that will study and make recommendations on a number of issues arising following the Supreme Judicial Court's same-sex marriage decision.

Also, the new Task Force on the Bar Discipline Process will examine the existing rules, procedures and practices in the commonwealth's bar discipline process and, if necessary, make recommended changes to Rule 4:01 of the Rules of the Supreme Judicial Court and/or to the Rules of the Board of Bar Overseers.

O'Donnell said she is excited about the work of this group. She also is hearing a great deal of support from members of the bar who are pleased about the committee.

"In all the years I've been bar association activities, I never have had such a response," O'Donnell said. "It seems to strike a chord with all lawyers."

Following the meeting, delegates got a grand tour of Gillette Stadium and posed for their annual photo. A reception followed.