Lawmakers outline plan to raise bar advocate wages, hire more public defenders

Massachusetts lawmakers Wednesday announced they reached an agreement among themselves to expand the public defender agency and raise hourly rates for private attorneys who work as public defenders — though for less than what the attorneys are asking for.

So-called "bar advocates"  — private attorneys who take on the criminal cases of those who cannot afford their own representation — have stopped accepting new cases for more than two months as they seek higher hourly rates. That's led to 100 defendants' criminal cases being dismissed for lack of representation. Bar advocates handle about 80% of the overall public defense caseload in Massachusetts and are assigned by the state public defender agency, the Committee for Public Counsel Services.

The draft agreement released Wednesday, included in a supplemental budget, calls for doubling the workforce of CPCS. By adding $40 million to its budget, the agency could hire 300 more public defenders, House leadership said.

The agreement also calls for a $20 per hour increase for bar advocates over two years. Currently, bar advocates receive $65 per hour in district court and $85 in superior court, far less than other New England states pay.

"With this provision, the Legislature is providing a significant increase in compensation for private bar counsel and upholding a bedrock principle of our justice system — the right to counsel for the accused," the agreement said.

It also stipulates that in the future, if private attorneys refuse to take cases over pay, it would constitute a violation of state anti-trust laws.

But a $20 increase may not be enough to get bar advocates back to taking cases.

Jennifer O'Brien, a veteran bar advocate who has been a major figure in the issue, said Wednesday that the proposal lawmakers rolled out "doesn't go far enough."

"It's very disappointing. They really obviously haven't heard us," O'Brien said. "To me, it just looks like they're doing everything to retaliate against us or not fund the program — everything they can do except for solve the crisis, which is just to pay the market rate, which is what other states have been doing."

The top Republican in the Massachusetts State Senate, Minority Leader Bruce Tarr, said an additional $35 an hour isn't "unreasonable."

"They do need a pay raise, there's no doubt about it," Tarr told reporters after meeting with representatives of the bar advocates Wednesday morning at the State House.

Senate President Karen Spilka struck a fiery tone when asked whether the $20 increase — over two years — would be enough for bar advocates.

"Nobody else that I'm aware of in the state is getting a 30% salary increase," she told reporters Wednesday. "So I urge them to get back to work."

Massachusetts pays its attorneys the lowest rate in New England: $65 per hour in district court and $85 in superior court. Maine and New York both pay $158 an hour, New Hampshire pays $125 to $150, and Rhode Island pays between $112 and $142.

Tarr also pushed back on Democratic leadership's claims that they were blindsided this spring by the bar advocates' demand for higher pay and the ensuing work stoppage.

"This has been a situation that's been festering for a while," Tarr said. "This has not been an unknown situation here on Beacon Hill either this year or in years past."

"We needed to be more attentive to the situation," he added.

Tarr's comments came after members of the state Republican caucus met with some bar advocates. It was the first direct meeting between lawmakers and some of the private attorneys leading the call for higher wages. Attorney O'Brien described the meeting as "productive."

"If you want the right to counsel to continue, then you have to fund the defense program," O'Brien said. "Ultimately, if this program isn't funded, then the right to counsel will just disappear altogether."

She said the bar advocates did talk with lawmakers about looking into potential waste in the system by making sure defendants are indigent or requiring some defendants to pay higher court-appointed attorney fees. During the meeting O'Brien said the bar advocates pointed out to lawmakers that the state has set aside $5 million for legal defense for immigration cases.

House Speaker Ronald J. Mariano said in a statement that the agreement gives a "significant raise" to the bar advocates and will ensure the commonwealth is no longer "over-reliant on the bar advocates."

"The right to legal representation is a crucial element of the Constitutional guarantee to a fair trial, which is why I urge the bar advocates to return to work so that they can resume upholding that right and put an end to this public safety crisis," he said.

The cases dismissed were required under what's known as the Lavallee Protocol, which requires that the state appoint an attorney to a defendant who can not afford one within 45 days or the charges are dismissed.

CPCS said Wednesday that there are nearly 3,200 people who have not been appointed counsel and 145 people in custody without legal representation.

"This remains a constitutional crisis, and we urge bar advocates to resume accepting new cases on behalf of the clients whose rights are at immediate risk," said CPCS Chief Counsel Anthony Benedetti. "Their expertise and dedication are indispensable to the fair and effective administration of justice in Massachusetts."

Information from the State House News Service was used in this report.