Since we wrote last month about the assigned counsel fee controversy in Massachusetts, the editorial board of Massachusetts Lawyers Weekly has officially opined that Governor Romney’s constitutionally-questionable, three-prong “reform” plan is “worth a try.” (MLW, “A New Plan for Bar Advocates,” 03-08-04) I have neither the energy nor the patience to describe all the things wrong with this mess of an editorial, but I urge you to take a look. You can find the editorial here,
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Suffice it to say that, if this editorial were a brief on the merits of the plan, its authors could easily be charged with malpractice. The lack of research; the failure to address major issues; the twisted reasoning; and the tortured prose, all suggest a want of competence and diligence. The only sign that an advocate wrote the piece is its unwavering devotion to the Governor’s plan.
An excellent response has been written by William J. Leahy, the chief counsel of the Mass. Committe for Public Counsel Services (which administers the state’s assigned counsel program and employees public defenders). Salem, MA, attorney Robin J. Adler, has also written a strong dissent on the MLW editorial.
The Editorial ignores or brushes off the major arguments raised in opposition to the Plan by CPCS and by The Massachusetts Association of Court Appointed Attorneys, which has been trying to establish a funding mechanism that meets constitutional requirements and assures assigned counsel fair compensation for their legal services.
Most important, as stated in an MACAA press release issued 02-26-04: “Constitutionally mandated court functions must be fully funded by direct appropriation. Contingent funding for core court functions and indigent representation is unconstitutional. Funding public defenders from indigent counsel fees was found unconstitutional on February 12, 2004 in Minnesota, and has been found unconstitutional in other states.” . . .
The Governor’s proposal to use so-called “retained revenue” to fund constitutionally mandated core functions constitutes contingent funding, illegally attempting to balance the Commonwealth’s budget on the backs of the poor.
The MLW editorial doesn’t even mention the constitutional issue, despite a recent decision from the Minnesota Supreme Court, which we discussed here, finding co-pays by indigent defendants unconstitutional. The Board does raise, but is not deterred by, the plan’s proposed contingent payments for motions to suppress — no fee for unsuccessful motions. Worse, the editorial passes over the fact that in many respects, assigned counsel will be paid less under the Romney/Winslow plan. The philosophy seems to be: things are so wrong that anything, any change is worth trying. The Board is wrong.
Only last August, the Portsmouth Herald quoted David Yas, the editor of MLW, as saying that attorneys for indigent defendants are ”the forgotten stepchildren of the legal system.” Moreover:
”They get paid peanuts, when the state feels like paying them, and they handle bottom rung cases without a trace of fanfare,” he said. The problem, Yas said, is that lawmakers control the funding, and neither the lawyers nor their clients are a strong constituency. . . . [T]he situation is reaching a ”breaking point,” and the public needs to realize better pay is a safety issue.”
Yas concluded: ”This is a point where (attorneys) have to make particularly loud noises because it’s at a point where it’s particularly bad.” Maybe that’s why he wrote such a dreadful editorial — he wanted to get Massachusetts assigned counsel making really loud noises. Well, it worked.
Update (03-17-04): David Yas, Publisher/Editor of Massachusetts Lawyers Weekly has sent me the following clarification:
This “blog” contains an inaccuracy that I’d like to correct. It states that I “wrote … a dreadful editorial.” Whether the editorial is “dreadful” is obviously a matter of open debate (and we are doing our best to air all the substantive criticism this editorial has spawned). But I didn’t write the editorial. As the editor of the paper, I edited it, but our editorials are a product of our 30-member board. My personal opinion has very little or nothing to do with our editorials. As far as my comments as quoted by the Portsmouth Herald, I’m glad to see them here. (They are completely accurate.) My colleague wrote on this Forum earlier that Lawyers Weekly has, in the past, been a defender of court-appointed lawyers (many of our past editorials on the subject consistently reminded readers that these lawyers are underpaid). My quotes, which if memory serves were delivered to the Associated Press and picked up my many newspapers, are consistent with our historic support of bar advocates.
David Yas
Publisher/Editor-in-Chief
Mass. Lawyers Weekly
- (03-17-04) Massachusetts Assigned Counsel activist Deborah Sirotkin Butler, Esq., emailed this positive reaction to Dave Yas’ statement:
“This post from David Yas is in character. Since the publication of the original, problematic editorial on March 8, 2004 David Yas and MLW have opened their publication to letters and responses, and shown a real willingness to examine the issues involved in a well-rounded and truly gracious manner.”