Indigent defense in Massachusetts

Last year court-appointed attorneys in Massachusetts were paid $30, $39, and $54 an hour, depending on the type of criminal case they were appointed to handle.  Claiming the fees paid were inadequate, lawyers quit accepting court-appointed cases.  The legislature responded, raising fees for each case by $7.50 an hour. 

At current rates, attorneys working forty-hours a week, with two-weeks a year vacation each year, would earn from $75,000, to $123,000 a year.  I'm sure that my readers would love making the kind of money the Massachusetts lawyers scoffed at.  Indeed, according to census data, fewer than 50% of Massachusetts citizens earn over $51,000 a year.  A salary of $75,000 or more would put someone in the top 20% of wage earners in Massachusetts.  In other words, the lawyers would out-do 4 out of 5 working stiffs.

But the lawyers remain unhappy and are demanding $60.00, $90.00, and $120 per hour depending on the type of case handled.  At those wages, the attorneys would climb closer to the top 5-10% of Massachusetts wage earners.

Let's remember a couple of things.  First, this is not an issue of the government telling a private person, engaged in the private practice of law, how much he can charge.  If it were, I would side with the lawyers.  People should be allowed to make as much money as they can earn. 

Instead, the complaining lawyers make their money off tax dollars.  But these court-appointed lawyers want to earn, vis-a-vis tax dollars, more money than all but 90% of taxpayers.  Finally I understand chutzpah.

The judges balked at the lawyers' unreasonable demands and have continued appointing counsel for indigent clients.  Many lawyers remain obstinate in their refusal, refusing to obey the court and filing this so-called "Refusal Motion."

David Giacalone argues that the lawyers' boycott illegal, in violation of federal antitrust laws.  Mr. Giacalone also argues that the boycott is unethical.

I'll leave the antitrust and ethical issues to Mr. Giacalone while still casting a skeptical eye towards the "Refusal Motion." 

The authors of the motion write: "The rates, both with and without the unfunded $7.50 an hour 'increase', do not cover the overhead rates of my law practice and a modest income for my services."

First of all, this is conclusory.  The authors do not indicate what "overhead" can't be met.  Second, the authors are encouraging attorneys to file boilerplate language with the court.  I believe this is wrong because each lawyer has his or her own overhead and should specifically state why he or she truly would suffer a hardship if appointed in criminal cases.  Third, were court-appointed lawyers starving before the boycott?  It seems that lawyers, for years, were able to meet their overhead under the old (re: lower) rates.  Why the paradigm shift?

The authors of the boilerplate memo further state: "The current rates of compensation are unreasonable and constitute a confiscation of my assets and services without adequate compensation, in violation of my rights to due process and the possession and enjoyment of my property."  However, they do not cite any case law supporting these legal propositions.  I guess they figure that saying it makes it true (and legally cogent). 

They further complain about "[t]he denial of my Constitutionally guaranteed rights" without listing these rights.  They don't even cite the Constitution.  And finally, "I respectfully decline to accept appointment by the court for the delivery of my professional legal services due to financial hardship as set in Rule 6.2 of the Rules of Professional Responsibility."  At least they cite a case after this sentence (but without any parenthetical or explanation why the case supports their argument).

This is really low quality this legal work product.  A law student would literally fail a class if he or she submitted it to a professor.

I suggest that anyone relying on this "Refusal Motion" have his or her pay reduced.

Anyhow, I want to be fair to the Massachusetts lawyers.  I will let a spokesman use my forum to defend your actions.  I thus will allow (nay, I request) an advocate to refute my and Mr. Giacalone's arguments.  You need not relegate your defense to my comments section.  Instead, email me and I will print it.  Indeed, I generally support court-appointed lawyers and thus would love to be corrected.  Folks, I want to be on your side.  Just give me a reason.

Comments

[Al Nye]

I think Carolyn Elefant has already refuted your argument over at http://myshingle.com.

Al Nye

[David Giacalone]

Could you be a little more specific, Al? Carolyn's piece wasn't trying to refute anything other than the suggestion that the Massachusetts fees are on their face too low.

[Matt M]

"At current rates, attorneys working forty-hours a week, with two-weeks a year vacation each year, would earn from $75,000, to $123,000 a year."

I don't know how your practice works, but if you're able to bill 100% of the time you work each week, I need to come to your seminar.

Lets say a PD works 40 hours a week (sidenote--I don't know any PD's who only work 40 hours a week), say 8 hours a day for five days. Of those 8 hours, unless you're an efficiency machine, at most 6 will be billable. 6 X 5 is 30 hours a week. By this more realistic (yet still probably inflated) figure, prior to the increase, MA PDs were in a range of 45K to 81K. With the increase, the range moves to 56,250 to 92,250. I'm not saying this is not good money--just asking you not to use artificial calculations to support your arguments.

You correctly point out that fewer than 50% of MA workers make more than 51K. With this increase, SOME of the PDs would make over 90K, but most would be in the lower range--just over 56K, as the lesser crimes are more prevalant. After 7 years of schooling and tens of thousands of dollars in loans, doesn't it make logical sense that these people should be making more than the average "working stiff"? Doesn't education count for anything anymore?

PS: I am not a PD in Massachusetts

[Mike]

Al, Ms. Elefant, if I understood her correctly, argued that the Mass. fees are not per se unreasonable. She argues that they're low, and thus, lawyers should not dedicate 100% of their practices to court-appointed work.

[Mike]

Matt - I assumed 8 billable hours a day in a 10 hour workday. I think ten hour days, five days a week, is pretty reasonable.

[Deborah Sirotkin Butler, Esq.]

There is not and never was a boycott. Just attorneys who, as Carolyn suggests, finding they cannot keep the lights on at court-appointed rates, and moving on to other work. There are fewer attorneys who return contracts or stay "actively on the lists" to take appointments every year. Boycott? No. Averse to bankruptcy.

[Deborah Sirotkin Butler, Esq.]

Responding to "Mike" - if the lawyer can do 8 billable hours a day, who is typing? Who is filing? Who is cleaning? Who is billing? Who is purchasing the office supplies? A staff? Or an unpaid spouse? Mind, at age 30 this all may be doable by one person - but one of the attorneys being "drafted" to take cases over objection that I know personally is 65, on social security, did not return her contract because she was retiring...and they have drafted her in 6 times so far since August for over 60 cases. You mean once you take a court-appointed case, you can NEVER retire until you are buried in a grave? Never stop doing those cases or be accused of being in a boycott? Excuse me. But I do find that this position lacks any rational basis.

[Aaron]

I thought we were talking about appointed counsel, not public defenders. I also thought we were talking about a litigation speciality, not office work. That is to say, we do not appear to be talking about people who are guaranteed a particular wage, a particular number of cases, or a particular number of "billable hours" per week. Litigation practice also has significant peaks and valleys depending upon the progress of cases, and this effect gets exaggerated for more serious cases which are far more likely to go to trial or resolve "on the courthouse steps".

How are appointed counsel chosen in Massachusetts, under normal circumstances or under the present circumstances? Who is being subjected to the new "you have to represent this criminal defendant" orders? Anybody who happens to be in the courtroom, no matter what their practice area or experience? Are the state's "top gun" criminal defense attorneys being compelled to provide service to indigents, even though they did not previously take appointed work?

Dare I say it is obvious that the state is using a system of appointed counsel because it is considerably cheaper than creating a system of public defenders' offices - even though the overall quality of indigent defense is typically higher through public defenders offices than through appointment systems? (Emphasis: overall. There are some very good lawyers who take appointments, but typically there are also some substandard lawyers who also do so. Market forces apply. The lower the compensation, the more substandard lawyers you can expect to find on the list of lawyers who accept appointments, while fewer exceptional attorneys will sign up.)

As others have pointed out, you can't view the compensation as a "wage" - you have to consider office expenses and self-employment taxes. You also have to consider that the state may impose billing rules which make it impossible to bill all hours worked (e.g., "you may not bill for travel time"), and that the lawyers may not even be paid until the conclusion of a case. (I don't know the rules in Massachusetts, but I do know that many jurisdictions don't pay appointed counsel until a defendant has been acquitted or sentenced.)

(You say some of these lawyers are filing a lousy brief which doesn't properly state the law, and are still expecting to win? I though you said these were defense attorneys - you're making them sound like prosecutors. ;-)

[David Giacalone]

It is sad to see Deborah continuing to insist that "there is no boycott." As I have pointed out to her many times, with citations and explanations, concerted or coordinated refusal by competitors to stop taking new cases is a boycott -- and threats of a joint boycott are themselves coercive and illegal. The lawyers do not have to sign a blood oath on paper or take a vote to make their action joint rather than individual.

After their successful, very public, two-day joint boycott in 2003 (for back pay), bar advocate leaders warned they would use joint action again in 2004, if adequate fee increases were not received. It is therefore not surprising that Massachusetts newspapers across the state have been reporting since July of this year that local bar advocates have in fact met and decided to "strike" or use a "work stoppage" in order to force the State to listen to their demands for higher fees.

For example, see: Public Defense Lawyers on Strike, SouthCoast Today (July 20, 2004), and Lawyers' Strike Hurts Defendants (New Bedford Standard-Times, July 28, 2004); there were similar activity and threats in Fitchburg and in Worchester. {Unfortunately, many of the links at my website to news articles relating to the boycotts are now stale.]

After the initial "strikes" (they are, of course, not strikes because these are not employees) in the summer yielded the $7.50 per hour pay raise, leaders of MACAA and local bar advocate groups went out ot their way to "predict" that the increase was insufficient and that more and more lawyers would refuse to take new cases. The lawyers in Bristol County met and voted that the amount wasn't adequate. See Bar advocates say pay raise isn't enough, New Bedford Standard-Times (July 29, 2004); and see Lawyers, guns and money: Legal boycott over pay may set thugs free, Boston Herald (Aug. 4, 2004).

Deborah would have us believe that all 150 bar advocates in one county individually happened to stop taking new cases on the same day; or that the simultaneous failure of 83 of the 84 contracted lawyers in another county to show up for new assignments was mere coincidence. Check out the Bristol Country Bar Advocate What's New Page, to find many more instances -- reported gleefully -- of "work stoppages", which the rest of the world would call boycotts.

[Deborah Sirotkin Butler]

David does not get it. There are 12 panels of attorneys. Some, like me, do not do criminal defense work, do not regularly appear in any particular court, and never promised to take a set number of cases, or appear on a set day for assignments. Merely because some criminal attorneys mostlyh appear appear at the same courts and grouse in the same hallways does not make what those folk do a "boycott". I am sad to see David trotting out the same rigid, tired analysis as if "one size fits all". In fact, in Massachusetts fewer and fewer attorneys, over a ten year period, on a smooth curve are either contracting (as the criminal panels do) or staying "eligible" on the panels (as in parental termination, involuntary mental health commitment, etc.).

Must an attorney be forced into bankruptcy because at one time, they agreed to do court-appointments and therefore, can never quit until dead and buried?

[David Giacalone]

Deborah, the existence of other panels is irrelevant to the issue of bar advocates seeking higher fees through coercion -- as is the purity of your own motives. As the Supreme Court said in Indiana Dentists, good intentions (even if bona fide) do not justify sellers getting together to force their wishes on a buyer. When every (or almost every) lawyer in a county stops taking criminal cases on the same day, after a vote to do so, they have engaged in concerted boycott activity. The county where emergency appointment power was first used was just such a county (with some lawyers publically stating they were trying to set an example for the whole state), and there were many other local bars that did the same, and others meeting and deciding to postpone their "strikes" in hopes that their more brash colleagues would bring the Legislature to its knees without having to give up any assignments themselves.

Your wanting to wish away these facts will not make them go away. The fact that lawyers felt "slapped in the face" or unappreciated in no way lessens their culpability for acting in concert to coerce higher wages. Nor does the fact that many were thinking for years of leaving the panel but were still taking cases because they needed the income, and hoped fees would eventually increase. [I don't think that your colleagues across the nation who read FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 1990, will dismiss its relevance the way you so cavalierly do.]

When a large number of lawyers decided to join into a mob in order to get higher fees, bar advocates made it harder for the honest ones to act individually without being under a cloud of suspicion -- and they broke the law.

Yes, the numbers of panel members were dwindling a few percentage points per year, but there were enough bar advocates to cover the daily needs of the courts in Massachusetts until the joint boycotts took place. Surely, there were also many who would have worked for the extra $7.50, if they were not encouraged by their leaders to hold out for more. Just leaving as individuals was always permitted. However, most bar advocates wanted to continue taking cases, so long as they could get higher fees. Rather than using lawful methods, like mature adults, perhaps taking more than one Legislative session, they were like a bunch of bullies -- joining the mob and abandoning their principles in the hope of getting a few extra dollars more quickly.

Some bar advocates can readily substitute more lucrative clients for assigned counsel work, but -- let" rel="nofollow">

Sadly, Deborah, the "same rigid, tired analysis" is due here for this situation, because lawyers using boycott tactics to gain leverage and higher profits is no different than any other sellers doing so -- with one big difference: here, the lawyers have sworn to uphold the justice system, and to put their clients first, and they ceaselessly whine about how unfair they are being treated and how saintly they are (with no worry about what programs will be cut to meet their extortive demands). Most businessmen have more pride than that.

The bar advocates have set back their cause with the public -- the very people they are asking to pay their higher fees. It's hard enough for politicians to say they are giving lawyers a raise, but now they have to ask the public to pay for raises for the lawyers who have allowed prisoners to be set free with their work stoppages. Don't point you finger at me for this mess, Deborah. Check out your esteemed colleagues.

[David Giacalone]

Mike, I know that Deborah has written to you saying that my cited articles are somehow misleading. I hope you will put her newest contributions on this weblog -- perhaps as a Comment.

My preemptive reply (which I hope will be the last on this topic at this website) is: Far from being misleading, each article went to the issue that I am focusing on -- whether bar advocates who stopped taking new cases were acting jointly. It is not a cogent response to say "here are articles showing that the newspaper editors think we deserve more money." I've never said they don't deserve more money; I've said they don't deserve to get it under the gun of boycott coercion and you have no right to use those tactics.

Similarly, I said it is ironic that the lawyers are trying to stop emergency measures that were necessitated by the very actions of the bar advocates. The persuasive response is surely not "but our own briefs never mention a boycott, we are raising constitutional issues."

[Aaron]

I think the chances of Ms. Butler's choosing to reply in public problably diminished when, in response to her comments, her fellow appointed attorneys were effectively deemed to be immature, unprincipled, impatient, greedy bullies, engaged in illegal activities.

[David Giacalone]

Aaron, you definitely don't know Deborah, if you think that would stop her. She specifically asked that her comments be posted.

[Rosemary]

As a private attorney who has accepted court appointments to represent indigent defendants in the Springfield District Court over the past 15 years, I want to set the record straight regarding what led to the crisis in Springfield. There was no organized boycott and no concerted action whatsoever. We held no meetings. We held no vote. Each attorney who made the decision to cut back or discontinue accepting appointments came to that personal decision based solely on their individual circumstances. In fact, the President of Hampden County Bar Advocates (HCBA)A did nothing to encourage attorneys to stop taking cases. To the contrary, he sent a letter to all attorneys in the program, stating (1) HCBA has never advocated a strike or work stoppage. It is up to each individual attorney to assess their own situation and to make their own individual choices. (2) HCBA is contractually bound to provide attorneys for indigent defendants and must, in good faith, attempt to fulfill that obligation. We are doing just that, although our attempts have not been entirely successful. (3) Each attorney should respect one another's decision, even if they disagree. An attorney who decides to take cases should not and must not be browbeaten in any manner because they have decided to accept appointments. A person's individual decision should be respected. For those who believe the HCBA is being too cautious, please let me emphasize that we have certain legal obligations, requirements, and limitations as an entity, to which we will continue to adhere. Likewise, the Committee for Public Counsel Services (CPCS), in a letter from Chairman Willie Davis and Chief Counsel Bill Leahy asked us to be available and accept assignments to represent indigent clients. Accordingly, those who could afford to continue doing the work did so. Those who were suffering losses because compensation no longer covered even their overhead had to give up doing work they consider important. So cut the criticism of attorneys who have for years given up opportunities for more lucrative work to preserve constitutional rights for all citizens but who reached the point where it just wasn't fair to their families to risk financial ruin and caused them to say "no" too often to their children who just want to participate in activities and advantages enjoyed by their peers. It's very sad when some of the very best attorneys in this state are the lowest paid individuals in the courtroom, whose net pay is below that of the DAs, probation officers, court officers, police officers, interpreters, clerks, etc.

The final straw, I believe, for many were comments from legislators like, "Why should be pay them $35 when they will work for $30!" They were right for many years - despite the conclusion of each budget cycle without even a buck or two to keep up with the cost of living, these dedicated lawyers kept doing this constitutionally mandated work which is the obligation of all taxpayers. Why should lawyers be singled out and told they have an ethical obligation to provide these services? As the high court in Missouri said in State ex rel. Scott v. Roper in 1985 (citing a 1854 Indiana case!), "To the attorney, his profession is his means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic." The high court in Kansas decided in State ex rel. Stephan Smith in 1987 that, "We do not expect architects to design public buildings, engineers to design highways, dikes, and bridges, or physicians to treat the indigent without compensation. When attorneys' services are conscripted for the public good, such a taking is akin to the taking of food or clothing from a merchant or the taking of services from any other professional for the public good. . . . We conclude that attorneys' services are property, and are thus subject to Fifth Amendment protections." The Alaska high court also found in the same year that the appropriation of an attorney's labor is a "taking" because "requiring an attorney to represent an indigent criminal defendant for only nominal compensation unfairly burdens the attorney by disproportionately placing the cost of a program intended to benefit the public upon the attorney rather than upon the citizenry as a whole." The Supreme Judicial Court in Massachusetts found this year in Lavallee that "[e]nsuring the public's safety is of the first order of government, a duty underlying all government action. . . . Public safety, however, comes with a cost. One of the components of that cost is the level of compensation at which counsel for indigent defendants will provide the representation required by our Constitution. As previously noted, the level of compensation paid to private counsel has barely changed over the past two decades, and is among the lowest in the nation. It is driving lawyers away from enrollment in the private counsel division of CPCS in Hampden County. The inadequacy of compensation for private attorneys who represent indigent criminal defendants has persisted for many years. The continuation of what is now an unconstitutional state of affairs cannot be tolerated."

The Lavallee decision was a great victory for the right of counsel; however, it is ironic to protect the rights of indigent defendants while denying them to their attorneys. If the Legislature does not uphold this right of counsel by fully funding adequate compensation for bar advocates, the SJC will once again be forced to act. It is unfair for the SJC to be criticized for its decisions made necessary by failure of the Legislature to do the right thing, and I hope that our justices will not be intimidated by such unfair criticism. I filed a petition with the SJC in September seeking relief from the threat of having my license placed in jeopardy if I don't continue to provide these services in spite of inadequate compensation and am confident that the SJC will do what is necessary to protect the rights of all citizens, including attorneys.

During my research, I found the historical record that shows that the rates have remained virtually unchanged for 26 years rather than the 20 years recalled by others. Footnote 11 of Edgerly v. Commonwealth, 379 Mass. 183 (1979) records that, "On July 1, 1978, the rule was revised to raise the rates to $35 an hour for time in court and $25 an hour for other time. The corresponding rates for representation of indigents charged in Federal court are currently set by statute at $30 an hour in-court time and $20 an hour out-of-court. . . ." Get that . . . at that time, Massachusetts paid more than the Feds, whereas the Fed rate today is $90. Incidentally, it was on July 1, 1996, that Massachusetts made the $35/25 rate $30 for in- or out-of-court time for District Court work. That was a cut in pay for some work, so you really don't consider that a raise, do you? When the Governor spins the $7.50 increase in 2004 to a 25% raise, ask your "4 out of 5 working stiffs," that you say would be outdone by the lawyers, if they would like to go back to 1978 wages + 25%. I'll bet you won't have any takers.

[Aaron]

David, I didn't mean to suggest that the expression at issue would "stop" Deborah - I'm sure she has encountered worse without flinching. However, some people might deem such an expression as flame-baiting.

[Deborah Sirotkin Butler]

Dear David - I do think calling me "Cavalier" was a cheap shot, and beneath you. I have never been "cavalier", which I think you know. Nor, as an attorney "on the spot" do I consider that what has occurred in this jurisdiction rises to the level of "concerted effort" based on a factual analysis. I thank Rosemary, who is a Springfield attorney, is subject to conscription, and herself filed on her own behalf with the Supreme Judicial Court. She is also 65 years old and receiving social security, and by no means "cavalier" as to her passion for the law. As it happens, I was at a dinner meeting tonight where Professor Ogletree of Harvard spoke. He does not consider what has occurred here concerted effort, nor does he consider the conscription of attorneys fitting, or legally appropriate. I was there to hear him speak. I do not always respond immediately, as: 1. I have an active law practice; 2. I have a family with two college students living at home; 3. I have a life and while I do check e-mail and certain sites from time to time, and monitor others during certain periods, I am not "on computer" from dawn to dusk, or even every single day. My own county, Middlesex, has 13 courthouses. It has almost 25% of the CPCS certified attorneys. No so-called "strikes" occurred, but many, many attorneys have walked away, despite still appearing on lists. It is a market adjustment, pure and simple, also fueled by hopelessness, near despair, and a deep disbelief that those who work for the poor will be treated fairly. And, the small local groupings that spouted off to reporters (but have no treasuries, officers, or ability to sustain anything) have washed away, with the tide. There were no such hiccups of discontent in my county. As to whether the FTC v case applies - I think not. There are so many factual differences that I do not think they could all be listed in this space, including the unique status of the District of Columbia, and an actual action sponsored by a funded organization. I am a member of the Massachusetts Bar Assn., the Middlesex County Bar Association, the Juvenile Bar Assn., and the Massachusetts Association of Court Appointed Attorneys (MACAA). Every one of these organizations supports increased compenstaion for court appointed attorneys; and not one of them voted to support any sort of boycott. Even MACAA simpy voted that each attorney should follow their own conscience and respect the decisions of each and every other attorney, while also voting to provide legal services to any attorney bullied by a judge or threatened with contempt for exercising their right to say no.

I know that David repeatedly calls the posting of news from around the state as somehow constituting "concerted action, as well as supporting freedom of choice. It is not concerted action, it is democracy in action.

[Deborah Sirotkin Butler]

The Committee for Public Counsel Services has also posted information on this topic on its website at:
SEE URL:

http://www.mass.gov/cpcs/pastnews.htm

That way, you do not have to "take my word for it" as it were.

Warmly, Deborah Sirotkin Butler

[Deborah Sirotkin Butler,Esq.]

The Massachusetts Association of Court Appointed Attorneys (MACAA) has submitted a comprehensive report to the Commission established by the Massachusetts legislature by H5038. The full report may be viewed online, or downloaded at:

http://www.bristolcpcs.org/MACAACommission.html

Deborah Sirotkin Butler, Esq.
AmberPaw@aol.com
Liaison, Pro Bono, MACAA

[Deborah Sirotkin Butler]

There have been further developments in the Massachusetts efforts to support the right to counsel. A 65 yesar old attorney, who has posted here, was successful in her Petition to the Supreme Judicial Court, and has been granted the right to a hearing as to reasonable compensation. The six page decision in Rosemary Cooper's case can be read at http://bristolcpcs.org/CooperDecision.pdf This decision has received a certain amount of interpretation in the media, though only received by Attorney Cooper on 1/18/05. For example, see: http://www.masslive.com/hampfrank/republican/index.ssf?/base/news-6/1106383786259830.xml

I am also pleased to report that legislation seeking to address both rates and working conditions was introduced on behalf of the Sixth Amendment Bar, and has 70 legislative co-sponsers. The legislation, its list of sponsors, and more press on the 2005 developments can be read at www.bristolcpcs.org at the "What's New" area of the site.

All legitimate means of volunteer citizen activism are being pursued by committed attorneys.

Attorney Rosemary Cooper herself created a significant and substantial body of drafting and research, and for that reason, given the compelling facts of her situation, did prevail. She, herself, described her situation above.

Warmly,

Thank you for this forum.

Deborah Sirotkin Butler, Esq.
Attorney and volunteer liaison, MACAA
AmberPaw@aol.com