Cases Affected by Raich
The other side of the Massachusetts story

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.