MBA goes to bat for bar advocates

Issue September 2004

While much of Massachusetts enjoyed a relatively cool spring and summer, attorneys across the commonwealth who accept court appointments for indigent defense cases were in the heat of battle of the issue of fair compensation for the work they perform. And MBA members, from past president Richard Van Nostrand and new president Kathleen O'Donnell on down through the ranks were on the front lines supporting the bar advocates' cause.

Culminating (at press time) with a three-hour hearing before Supreme Judicial Court Justice Francis X. Spina on Aug. 23, where private attorneys, representatives of the Committee for Public Counsel Services (CPCS) and bar association officials argued that private lawyers have not organized a work stoppage to pressure the state to raise pay, the issue is sure to spill over into the fall and the beginning of the legislative year.

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, though it has yet to actually allocate the funds in the state budget. This pay increase is virtually the first raise for bar advocates since 1984.

"Bar advocates are paid less than their counterparts in comparative jurisdictions across the country; they are paid less than lawyers of similar experience who perform non-criminal justice work for the commonwealth; they are paid substantially less than criminal justice attorneys working for the federal government; and they are paid far less than attorneys working in private practice in Massachusetts," said Van Nostrand at the time of the pay-raise vote.

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.

That ruling and the subsequent release of several defendants in drug cases provoked and angry response from Gov. Mitt Romney, Attorney General Thomas Reilly and law enforcement officials, with the governor threatening to move oversight of CPCS from the judicial to the executive branch and threatening to blackball from future state contract work any attorneys who refuse to take court-appointed cases.

MBA support

The MBA is a long-standing supporter of hourly rate increases for bar advocates. In 1994, a study by the MBA's Commission on Criminal Justice Attorney Compensation and concluded that their pay is "inadequate and inequitable." The report recommended rates of $50 per hour for District Court matters; $65 per hour for Superior Court matters; and $85 per hour for murder cases.

Since 1994, both the average per capita income and the consumer price index have nearly doubled. Expenses incurred by attorneys to keep their offices open, the lights on and their employees paid have undoubtedly grown proportionately.

On June 29, the MBA together with the Hampden County Bar Association filed an amicus brief in support of a petition seeking a declaration that current pay rates for attorneys representing indigent criminal defendants are unconstitutional and should be immediately increased.

The brief, filed in Lavallee v. The Justices of the Hampden Superior Court et. al. at the Supreme Judicial Court for Suffolk County, stated that these rates constitute a deprivation of the right to counsel under the United States and Massachusetts constitutions. The petitioners in the Lavallee case sought to immediately increase the compensation rates to $60 per hour for District Court matters, $90 per hour for Superior Court matters and $120 per hour for homicide cases.

Next steps

While, at press time, attorneys across the state waited for a ruling by Justice Spina on whether CPCS has the authority to require attorneys to accept court-appointed cases, the final resolution to the controversy will come in the State House, said MBA General Counsel Martin Healy. Legislators will have to take up the question of allocating funds to cover the $7.50 hourly increase as well as calls from the MBA and other groups to further increase bar advocates' pay.

"The inadequacy of bar advocates' pay makes it extraordinarily difficult to retain lawyers of skill, experience and talent," said O'Donnell. "Many outstanding attorneys are forced to leave public service because they are unable to meet their financial obligations due to low compensation rates."

More critical perhaps even than the pay issue, O'Donnell noted, is that, "The Massachusetts and United States constitutions mandate that indigent citizens facing criminal charges must be competently represented. When the commonwealth fails to provide compensation to retain experienced defense counsel, citizens charged with crimes are denied the fundamental rights of a fair and speedy trial with effective assistance of counsel."