will MACAA react like a guild to indigent defense report?
The Massachusetts Association of Court Appointed Attorneys (MACAA) issued
a press release today (April 4, 2005), giving its initial reaction to the Report of the
Commission to Study the Provision of Counsel to Indigent Persons in Massachusetts
(see our post). The statement praises the hard work of the Commissioners and spotlights
the recommendation that assigned counsel rates “reach the 75th percentile of national
rates by 2009.”
That’s noteworthy, because the Bristol Bar Advocate website, which
is edited by Tom Workman, the President of MACAA, is already
complaining (see the April 1, 2005 listing) about the recommended
rates and their percentile shortfall.
MACAA’s carefully-worded offer of cooperation is more significant:
“Believing this proposal to be a work in progress, MACAA
is honored to work with the legislature in finalizing the increased
compensation, improved indigency verification, and other
safeguards to provide zealous defense of constitutional freedoms.”
What is particularly absent is support for the proposal to set up “pilot projects”
in the two counties hardest hit by the bar advocate boycotts last year —
Hampden and Bristol — with 15 public defenders hired in each county to
handle mattes in the District Courts. Those projects are, I believe, especially
important, because:
(1) They will help increase the ratio of private to public defense
counsel to levels meeting national standards.
(2) They will help assure that future attempts at coercive joint boycotts
aimed at increasing fees (or decreasing PDs) will be less effective.
The recent landmark American Bar Association report on the nation’s indigent
defense system, “Gideon’s Broken Promise” (Feb. 2005) specifically noted as
“Although national standards recommend the use of public defender
programs wherever the population and caseload are sufficient to
support such organizations, in many areas of Massachusetts, there is
almost complete reliance on private assigned counsel, especially in
misdemeanor and juvenile delinquency cases.”
The Gideon Report [at 27] favorably quotes one witness who explained “we
have to overcome the private defense lawyer’s fear that a public defender office
will result in a loss of business.” That fear is clearly widespread in Massachusetts,
as it was throughout Upstate New York, for many years, where assigned counsel
fought hard to prevent the establishment of public defender offices. (The Mass.
assigned counsel are also complaining about the Report’s proposal to limit their
yearly hours to 1500 .)
There is already chatter on the Massachusetts assigned counsel ListServe about the
pilot projects being merely a means of “control.” The Massachusetts public, Courts
and Legislature — having been subjected to group boycotting by the bar advocates,
(who now understand the power of their concerted coercion and seem willing to hint at
using it again) — have every right to attempt to control the system. As I said on Saturday,
the Commission’s proposals appear to take into account the legitimate goals of all the
stakeholders.
Many of the assigned counsel often seem quite envious of the
salary and wages of public defenders. I hope that some good
lawyers will decide to become public employees. Most, of
course, want to remain in private practice — where they can
be their own bosses and dream of greater financial rewards.
MACAA says it was formed “to ensure that the highest quality of legal
representation is given to each and every person entitled to court appointed
counsel regardless of ability to pay.” It will be interesting to see whether
it chooses to focus on the goals of a guild: securing higher fees and assuring
work for its members (through opposition to the increased use of public defenders,
which would help the State comply with national standards for indigent defense) or
whether MACAA chooses good faith cooperation with state leaders to build an
indigent defense system that will work effectively and efficiently for their clients,
the courts and the public.
Supplement (July 26, 2005): National standards for indigent defense favor fulltime public defenders, whenever the population and caseload can support them. (Gideon’s Broken Promise, ABA, 2005.) In Massachusetts, 95% of indigent defense is handled by private assigned counsel. [See the 2005 Mass. Study Commission Report, at pp. 9 – 10.] Nevertheless, the bar advocates have rabidly opposed the Study Commission’s proposal to have test projects, which would hire more public defenders in the rural counties where the problem is most extreme, and to move toward a more appropriate ratio PDs to BAs — because they do not want to lose the income.
In Hampden County virtually all district court cases are handled by bar advocates. According to MACAA, the average panel member spends 85% of his or her time on bar advocacy work, in Bristol County it’s 77%. (per Bristol County Bar Advocates chart)
In its section on Massachusetts, the recent landmark American Bar Association report on the nation’s indigent defense system, “Gideon’s Broken Promise: Massachusetts” (Feb. 2005) specifically noted as a problem in the Massachusetts system that:
“Although national standards recommend the use of public defender programs wherever the population and caseload are sufficient to support such organizations, in many areas of Massachusetts, there is almost complete reliance on private assigned counsel, especially in misdemeanor and juvenile delinquency cases.”
Despite this statement, bar advocate spokespersons continuously say that the ABA Gideon Report praised the Massachusetss system. [See., e.g., quote from MACAA press secretary Nancy McLean, to the Lowell Sun Times.] The Gideon Report actually praised the “approach” used in Massachusetts of training the assigned counsel and monitoring them. The Report stated that the basis for their conclusion was the testimony of one witness — Bill Leahy, who is in charge of CPSC, the agency that oversees the bar advocate system, and has the task of training and monitoring the assigned counsel. [See fn. 401 of the full Gideon Report.]
The Massachusets Study Commission noted that when the system was originally set up:
“The idea was that representing indigent persons would allow private attorneys to supplement their income while simultaneously building a private practice.35 Moreover, as noted in Lavallee, the work voluntarily undertaken by private attorneys willing to accept CPCS cases is in the nature of public service because the source of compensation is the ‘limited public treasury’.36
“There has been, however, a gradual yet persistent movement away from that original intent, as an ever increasing number of private attorneys derive all or a significant part of their income from CPCS cases. As more and more private attorneys have come to rely almost exclusively on CPCS cases for their livelihood it is understandable how this group has come to feel underpaid for their services. Such feelings, however, overlook the fact that the hourly rates paid to CPCS private attorneys were never intended to be sufficient to sustain a private practice.”
As MyShingle‘s Carolyn Elefant recently explained, responding to bar advocate opposition to a cap of 1400 hours per year per panel member, Court Appointed Work Is Not Supposed To Be A Full Time Job! (July 23, 2005). I also agree with her Comment at the Andrew Winters Blawg, that — when using an assigned counsel panel as part of the indigent defense system — we can expect better attention to indigent cases from lawyers with self-sustaining law practices who take indigent work out of a sense of public service, and from less experienced lawyers who take the cases to gain valuable experience. When assigned counsel spend the vast majority of their time on indigent work, but are still attempting to find more lucrative private clients, they will surely give the private client special attention.