The other side of the Massachusetts story

[Editor's note: In response to this post, where I was critical of the Massachusetts bar counsel boycott, Ms. Deborah Sirotkin Butler sent me this thoughtful response, which, with her permission, I post in full.  I also suggest that you read Carolyn Elefant's take on fair fees in court-appointed cases here.]

Your analogy would hold if the so-called $74,000 - $115,000 were wages. It is not.  It is gross.  It is not take home pay.  A friend of my college student son's initially took the same position you did - and then I asked him: "Suppose - for that $37.50 - $61.50.an hour, before you took home one cent for your family, you, from that gross income, after waiting four to six months after  providing the services to be allowed to bill the Commonwealth, you first had to pay for:
1.  Malpractice insurance, yourself.
2.  Health insurance, 100% your self.
3.  Your fax, copier, printer, and all other equipment, 100% yourself.
4.  Your licensing fees (the BBO fee this year is $350.00 - no reduction for those who take cases at below-market rates).
5.  Your internet costs (you must have internet to bill), 100% yourself.
6.  Your phone, heat, light, cleaning, and every sheet of paper and printer/copier/fax cartridges, 100%, yourself.
7.  Either pay your staff's salary, benefits, into the unemployment security fund, health insurance, etc. 100% yourself - or have no staff and file every sheet of paper, answer every call, and do all maintenance (unbillable) and all billing (time unbillable) yourself - staff often nets more than court-appointed attorneys do.
8.  By the way, anyone with an office here is out $6000 - $12000 a year, even for a small one.

MY SON'S 20 YEAR OLD FRIEND SAID, "Never mind.  I do better at Burger King".

After what you term a generous $7.50 an hour raise (the first increase in the rates paid to independent contractors doing difficult work in 20 years - or about 30 cents an hour per year), when I take court-appointed work I net $6.00 to $10.00 an hour "take home" - or $240.00 to $400 a week actual earnings.

I am attaching my  written testimony  as supplied to the Massachusetts House Ways and Means Committee in February of 2004, as to the kind of court-appointed work I do.  I have never done a criminal case, and do not plan to do so.  On my private work, I can earn a decent return - I only started taking a set number of state cases (reduced each year for the last 5 to stay out of bankruptcy). And, whether you do 5% appointments or 95%, and have done them for one year, or 25 years, the rate never changes - there is no benefit to continuing, no reward for good work or experience, no possible raise ever, and no punishment for poor work.

Also, if you go to http://www.ma-appellatecourts.org/search_attorney.php and put "Sirotkin Butler" for the last name and "Deborah" for the first, you will get a bit of the flavor again or what I have done and do.

Download writtentestimony22704.doc

Download hkaffifinal052304.doc

Comments

[David Giacalone]

Thanks for your input, Deborah. I wish all assigned counsel were as competent and diligent as you -- and that they, like you, were taking the cases out of virtue rather than necessity. As I've written elsewhere, this is not the case.

As you know, I have supported assigned counsel increases at my website, and in letters to Boston newspapers and Gov. Romney. It's the tactics and threat of ongoing coercion that I opposed. Whether or not $37.50 is "too low" and just what overhead expenses should be "counted" are secondary to my belief that lawyers should not be using coercion to get more taxpayer money. Also, I agree with David Feige's article of Sept. 3, 2004 at Slate, "Public Offenders: Why criminals in Massachusetts are getting out of jail free." Feige says only a comprehensive public defender system, not one relying so heavily on assigned counsel will provide adequate service.

If the best interests of the indigent defendants were the first priority, the organized bar in Massachusetts would be trying to expand the public defender system. However, the reality is that many members of the bar really want those assigned cases because they need the work -- this is especially true in less populated counties, where the local bar is usually totally opposed to the establishment of a comprehensive public defender system.

For bar advocates taking the cases out of altruistic motives, with predominantly private clients, the question would not concern their total overhead, but would instead be whether the Government fee scale covered their marginal additional costs for taking such cases. Their total overhead is, by definition, there whether or not they take the assigned cases.

Very few people who work only for the poor make a solid middle class income. Very few people who do business with the Government expect to be able to dictate terms. No competitors are allowed to use joint coercive methods to get better terms from their purchasers. No lawyer is allowed to bring a court docket to its knees for any reason.

The Mass. bar advocates want to have everything their way -- they want to keep the advantages and economic opportunities of having their own private practice; they want the taxpayer to immediately pay a lot more than has been paid for the past two decades (25% and the promise of more when the Commission reports next year is not enough); they want to make believe there would be a large, lucrative market to service indigent criminal defendants, if the State did not create this market; they also want to violate antitrust laws and ethical obligations to the client and judicial system with impugnity.

In addition -- having created a crisis through their boycotts, forcing the courts to use extraordinary emergency powers to appoint lawyers for indigent defenders, or release the prisoners -- the bar advocates want to stymie the use of those powers with their current lawsuit. As I wrote to you in an email, Deborah, that is a bit like the patricide child seeking mercy as an orphan.

[Aaron]

For some financial context here, albeit from Michigan, a 2003 survey by the State Bar indicated that with a median billing rate of $170 per hour, Michigan attorneys had a median net income of $73,500 per year.

Median office expense per attorney were about $55,000 per year - so if you assume 2,000 billable hours per year, that's $27.50 in office expenses for each hour billed.

[Eric Jarosz]

The empty kettle makes the loudest noise. The rate that a bar advocate is paid in Massachusetts is the third lowest in the nation, yet this State is progressive enough to be the first to sanctify gay marriages. The "boycott" alleged in previous posts is merely the "straw that broke the camels back". I am a bar advocate in Massachusetts. I am not a Harvard Graduate, yet on almost every day of the week day I am in Court fighting for the rights of my indigent clients. It would be nice to be independently wealthy and to sit on the sidelines and conjecture about societies issues. Unfortunately I do not have that privelege. I am dealing with societies issues every day. I am calling drug treatment facilities to try to obtain placement for clients with addiction. I am busting my hump to try to make sure that clients are not just a docket number and that their issues are addressed. After Court I am driving my clients to their treatment programs. I put it all out there as do all of my colleagues. Yet, when it comes to compensation, we are not given the same consideration. The pay of the typical bar advocate in Massachusetts is below poverty level. The people that continue to keep the system afloat, despite working for well below their worth, are not to be condemed, but should be praised. They are supporting the system with their own efforts and in reality, to their detriment, they are supporting the system with their own funds. If an attorney can bill a client for 100/hour, yet has to limit the amount of private cases due to Court appointed obligations at 30/hour, isn't that attorney actually financially supporting the indigent defense fund to his or her own detriment? A manager at McDonalds makes more than a bar advocate in Massachusetts. Isn't that a travesty that should be acknowledged by this discussion? THE EDGE

[Deborah Sirotkin Butler]

And, to the comment that "court appointed work is not supposed to be full time", and that means, you are not supposed to specialize or be good at what you are doing, the following:

I have a friend who is a physician. He asked me if attorneys develop
specialties, like doctors. I told him yes.

He asked me if some lawyers represent children with mental illnesses.
I told him yes.

He said some doctors specialize in this practice also.

(Reprint of relevant post from another list)

Then he told me that any physician who specializes in mentally ill
children must work full time for the government, as there are few
mentally ill children who have either parents with financial means,
credit cards to pay a doctor's fee, nor do they have a checkbook and
the authority to write checks. He told me that parents rarely have
the resources to pay the enormous expenses required to care for a
mentally ill child, perhaps one in a million parent can do that. He
mused that once a parent has had their financial resources tapped
out, how could they even contemplate hiring an attorney to fight for
their child's rights???

Then he asked a question I could not answer:

Does the state of Massachusetts really want a system where attorneys
cannot specialize like doctors, where everyone is supposed to dabble
in different areas of the law. Would you have open heart surgery
from a doctor who is a podiatrist, and every once in a while does an
open heart surgical procedure?

Then he asked the question that will keep me awake at night:

Is it possible that some members of the legislature hate mentally ill
children? or do they just not have a clue how mean-spirited their
policy is? Don't they understand the effect it will have?

As I thought about all the congratulatory back slapping and exchange
of "This was never intended to be a full time job", I wondered who
could explain that to the parents of a mentally ill child, when the
child was being forced to take medication that has the risk of
permanently disabling the child, and turning the child into a
vegetable, after years of expensive care that consumed all of the
resources that the parents could muster, including selling their
house to pay for medical treatment.

I know that my state rep and senator care immensely for those who are
poor and disadvantaged. I copied them on this email, so that they
would see what some people are asking, when comments about "never
intended to be a full time job" are made in the press. I know that
they will be horrified to see the implications of policies that
forbid true specialization which is customary in the other
professions. Those who will suffer will be those who are unable to
fend for themselves, the weakest members of our society. That just
seems to be the real tragedy.

[George of the (Legal) Jungle]

Do we want a system where lawyers who can't get private clients to retain them representing the most vulnerable?

Doing court-appointed work is something one should do his first 5 or 6 years outside of law school. After that, he's developed a reputation such that others want to hire him. If someone has been doing court-appointed work, but can't find any paying clients, what does that say about that lawyer?

[mythago]

Doing court-appointed work is something one should do his first 5 or 6 years outside of law school.

Because indigents deserve only the greenest lawyers representing them?

David, what do you think those attorneys should be doing--sending flowers and "pretty please" notes? Ms. Sirotkin points out that this is the first increase in *twenty years*. Whatever they were doing before clearly didn't work.