18 August 2004

More on Indigent Defense in Massachusetts

Carpundit commented on my post about Massachusett's indigent defense crisis:

Actually, some of the lawyers can be forced to work, and are being forced to work.

A Hampden County (the Massachusetts boondocks) Superior Court Judge ordered bar advocates to take cases. The SJC (highest state court) upheld the order.

In Hampden County, attorneys registered for the bar advocacy program as of August 3 can be forced to take cases (at the $30 rate) under threat of bar sanction. Although I am not (and never will be) a participant in the bar advocacy program, I believe a condition of participation is agreeing to take cases assigned to you whether you want them or not.

Yes, they should be paid more. But they knew the rates when they signed up. A "strike" is unacceptable. I've addressed this at my own site:
The dispute between the "striking" Bar Advocates and the Governor is heating up. Like Reagan with PATCO, Romney is threatening to "fire" them all.* I'm pleased. Sure, they're not paid enough. But their work stoppage is threatening public safety because without enough lawyers, courts are letting criminals out of jail.

A few quick points:

1. Bar Advocates should be paid more than their (lowest in the nation) current rates.

2. Bar Advocacy is about more than just money, and it is unprincipled to turn it into a labor issue.

3. Because having no lawyer is a get-out-of-jail free card, for the first time in American history it is better to be a poor defendant than a rich one.

*Why all the quotation marks? Because they aren't striking, really. They're just refusing new cases. And the Governor can't fire them because they don't work for him. He is threatening to prohibit them from getting any new cases, ever.
I addressed the issue of actually getting paid for your work in this prior post. To elaborate further, IMHO if the pay is so low that you are losing money or taking a very substantial hit when you take any court appointments it discourages people from concentrating their practice in that area. Those who serve the indigent (outside of PD's) will then generally fall into two groups: (1) Those who take appointments as a political matter, and (2) young lawyers who don't have anything else on their platter yet. The first group can actually be well established, very capable attorneys but, make no mistake, one of the reasons they are in court is to show their faces to the judges and garner favor among those in power in the courthouse (you know, the clerks). I see this in numerous counties wherein I practice but I also notice a lack of it in some smaller counties and in larger cities. Even where I see it, I doubt there are sufficient numbers willing to take a large enough case load to handle all cases. The second group is dangerous. They come into the courthouse for a cycle or two - because their firm wants "to give back" or they want to get some courtroom experience or they just don't have enough business to crowd out the criminal work yet - and then they disappear. This is not to say they are dumb or not good lawyers; I just mean they don't have the experience gained over time. Usually, they don't understand the procedure (cuz it ain't the procedure we were taught in law school) and often they don't have a feel for the way things work informally around the courthouse. Usually, most are bright enough to ask more seasoned attorneys for assistance. Still, there are those days when a brand spanking new kid from an all civil firm stands up and tries to do it the way he thinks it should be done without any help - those days are painful.

Which is a long winded way of saying that a cadre of experienced indigent defense attorneys needs to exist. When the pay is so low that these people walk away and start to develop a practice in real estate (the CLE booklet's sitting on my desk right now) because they can't make a living doing indigent defense it does no good to turn on them. Forcing these lawyers to work or be permanently banned from defending the indigent makes no sense. You'll either do 5 hours of work at a loss or we won't let you take any more cases at a loss? The mandated response to that is "Okay, take me off the list." These guys have to pay their bills - you can't just tell them to suck it up because there are principles involved. They obviously already have been for years. How else could the Legislature have gotten away with letting the situation get so bad?

The part about lawyers endangering the citizenry because these criminal will be let out of jail is a canard.1 The Legislature endangered the citizenry by refusing to pay an adequate amount so that market forces would bring lawyers to the job. The Legislature took advantage of the fact that many were willing to work with substandard funding - probably in good part because their principles got in the way of naked capitalism. Nevertheless, capitalism gets everyone in the end. Every single accused who gets out on an unsecured bond because he has no attorney is on the streets because of the Legislature; every single accused who has his case dismissed (mind you, without prejudice) has had his case dropped because of the Legislature; and everything that happens as a result of these people remaining on the street lies at the feet of the Legislature.

Again I ask: If this is the crisis proclaimed, why doesn't the governor bring the Legislature back in session to address the issue of adequate funding instead of trying to overburden PD's and force private lawyers into a Hobsons choice of working at extremely low pay or going out to do work which can actually pay the bills?

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1 Not perpetrated by Carpundit; it arises from the statements of law enforcement, prosecutors, the AG, and the governor as they act to label something they dislike and cast blame for the fact the system is failing because of Legislative neglect on the lawyers.


carpundit said...

Ken, some quick points:

1. What? No link?

2. The bar advocates deserve a good portion of the blame for prisoner releases by their not making this issue known before taking the drastic action of striking;

3. "Nevertheless, capitalism gets everyone in the end." What? I'm sorry, is this about systems of government? Then let me answer. Yes, capitalism does get everyone in the end. In the end it raises everyone's standard of living, brings economic freedom and encourages free societies.

Ken Lammers said...

I had linked to your exact post but I went back in and linked to your front page.

Ken Lammers said...

2. I must disagree. These are not new issues. There are a number of States where this issue has been known and getting worse for years and years including Massachusetts, Virginia, and Texas as among the worst. Defense attorneys lobby, argue, and beg for the system to be fixed. Well funded prosecutors grin at you (it's not there problem). Judges look down from the bench and tell you there's nothing they can do about it. And paying to defend "criminals" is not something that politicians are inclined to do. Just think of the ads in the next election: "While representative Smith wouldn't give Granny May enough money to buy the medicine she needs to live, he was happy to vote for criminals and their lawyers to get more money."

So nobody stepped up until the problem reached a breaking point. And even then they didn't fund the slight change they made.

What could the defense attorneys do? Stop taking cases earlier?

I think Virginia is at about 75% of the Massachusetts problem because of the extremely low fee caps here. Others would estimate the number as more like 90%; a number of attorneys have already walked away. The next couple years will see if anything will be done to fix our system. We all see the problem (just as I'm sure they did in Mass.) but all our Legislature has done is reshuffle. I've not got high hopes.