Poor lack counsel: lawyers cite low pay

After the baby's mother collapsed in Middlesex Family and Probate Court, the judge who was deciding where Dwayne would live gave temporary custody to the state Department of Social Services. By mistake, DSS put the child on the fast track for adoption, an error that wasn't reversed until a lawyer was drafted to represent the baby, three weeks later.

"Where would Dwayne be if I had declined the case?" said attorney Deborah Sirotkin Butler. "People tend to think that assigned counsel only represent scum. But we're also representing children, who are per se indigent. We're all they've got."

With state compensation for so-called bar advocates among the lowest in the country, lawyers across Massachusetts are refusing to take court-appointed cases, leaving poor defendants languishing in jail and parties in tangled custody cases without representation.

On Friday, attorneys organizing the approximately 2,500 private lawyers who represent most of the Commonwealth's poor confronted Governor Mitt Romney's chief legal counsel, Daniel B. Winslow, at a forum to demand higher wages.

The Legislature has until Thursday to overturn an 18 percent budget cut for the Committee for Public Counsel Services, or CPCS, the state agency that oversees the representation of the indigent in state courts. At current funding levels -- the total budget for CPCS this fiscal year is $80.6 million -- court-appointed lawyers predict there won't be any money to pay them after Jan. 1.

Yesterday, a group of court-appointed lawyers led by Butler made a last-minute plea for the Legislature to restore funding at a meeting with Representative John H. Rogers, chairman of the House Ways and Means Committee.

The lawyers have launched an intensive lobbying effort on Beacon Hill. They also have sued the Commonwealth in Bristol Superior Court, contending that the pay rates -- ranging from $30 an hour for District Court appearances to $54 for murder cases in Superior Court -- unconstitutionally compromise the right of poor defendants to good-quality representation.

Only 10 percent of the poor with cases in Massachusetts courts are represented by lawyers employed by the CPCS. The rest are represented by private lawyers who take cases as court appointments.

But with large numbers of lawyers now refusing to accept court-appointed cases, many poor people are left without counsel, particularly in Western Massachusetts. Judges have had to scramble to find court-appointed lawyers for emergency hearings, often sending their clerks to scour courtroom halls and beg lawyers to take cases.

In Hampden County, which has some of the state's busiest criminal courts, judges find themselves regularly canceling sessions or postponing bail hearings because no bar advocates are available.

"This is a toothache of a problem that's become an abscess," said Robert F. Kumor Jr., the presiding judge at Springfield District Court. "It's obviously very troublesome to judges."

The biggest dilemma, Kumor said, comes at bail hearings. If there aren't any bar advocates present to represent defendants, the judge can either postpone the case, possibly keeping someone in jail who otherwise might be released, or set the person free.

"That's a public safety issue," Kumor said.

In Hampden County, only about 20 percent of the lawyers on the bar advocates list are still taking cases, according to Mark Hare, the lawyer who organizes court-appointed attorneys there.

"People are being held without counsel in violation of their constitutional rights," Hare said. "On an almost routine basis, defendants are being placed in custody without the benefit of a bail hearing or a lawyer to represent them."

At least 19 defendants are in jail in Hampden County without an appointed lawyer to represent them, and some of them have been held for more than 30 days without counsel, Hare said.

The bar advocate shortage affects courts at all levels. Anybody who faces a potential loss of liberty and cannot afford a lawyer is constitutionally entitled to court-appointed counsel. In Massachusetts, that protection extends not only to people charged with crimes, but also to juveniles, children facing removal from parental custody, and people being committed to mental institutions or given psychiatric drugs against their will.

Statewide, the number of lawyers willing to serve as court-appointed counsel has decreased 9 percent over the last five years. The 2,518 lawyers on the rolls last year handled 244,276 cases. But the dropout rate has accelerated sharply over the last year in some places, such as Hampden County, where more than 10 percent of bar advocates officially dropped out of the system over the last year.

Most bar advocates are established lawyers who usually depend on court-appointed cases for about half their caseload; the average bar advocate billed the state for $28,468 worth of work in 2003, according to CPCS. The lawyers also complain about the cash-flow problem created by rules that allow them to bill only at the end of the year or once a case has closed.

The central issue driving the shortage, lawyers say, is what they perceive as low pay. Court-appointed lawyers earn $30 an hour for district court cases, which form the vast majority of bar advocate work; $39 an hour for superior court and child protection cases; and $54 an hour for murder cases.

Only two states pay less, New Jersey and Maryland.

The lawyers say a fair wage would be $60 an hour for district court cases, $90 an hour for superior court and child protection cases, and $120 an hour for murder cases.

Last summer, bar advocates in Suffolk County staged a 1 1/2-day walkout when the Commonwealth threatened not to pay $15.4 million it owed them. A last-minute legislative appropriation took care of the back pay.

"I'm fit to be tied," said Susan DeGrave, a Springfield lawyer who in July stopped taking court-appointed cases, which used to make up 80 percent of her practice.

"We have a tradition of protecting the rights of the most vulnerable," DeGrave said. "How can I continue to work in this kind of uncertainty, knowing that I may or may not get paid for work stretching into the future?"

Winslow, the state official in charge of judicial reform, said the governor had not yet decided what to do about court-appointed lawyers, but agreed that $30 an hour was not an acceptable rate.

"These rates are not defensible," Winslow, a former presiding judge in Wrentham District Court, told a group of lawyers on Friday during a keynote address about indigent representation at a Massachusetts continuing legal education conference in downtown Boston.

With private clients, the same lawyers charge from $100 to $200 an hour, depending on the complexity of the case.

But Winslow lashed out at CPCS, which he said "opposes reform." He said Romney believes the state could easily provide the same quality of defense for the poor for 20 percent less.

"The system has let the lawyers down and needs to be fixed," Winslow said. "We think we ought to experiment."

One proposal would pay lawyers a flat fee for every case, plus an extra $65 an hour for trials, Winslow said.

He also cited the indigent counsel fee, which requires the poor to pay $150, the highest in the nation, to obtain a court-appointed lawyer. Winslow said that judges have been reluctant to collect the fee from defendants already declared too poor to hire their own lawyers.

Last year, for instance, courts collected just one-quarter of the fees they should have, according to Winslow.

Whether they like the indigent counsel fee or not, Winslow said, courts are obliged to collect it, potentially raising $20 million in revenue each year.

Ever since the summer, when the state allowed courts to keep a portion of the fees they collect, receipts have skyrocketed, especially in lower-income district courts such as Roxbury and Lawrence, Winslow said. "People say poor people can't pay. I say poor people do pay."

Bar advocates said the fee contradicted the purpose of court-appointed counsel. "I see someone in court get an [operating under the influence charge] dismissed, then end up going to jail because they can't pay the fee," said Thomas Workman, a Taunton lawyer who is one of the plaintiffs in the lawsuit for higher pay.

Robert Kidd, also a Taunton lawyer, is recruiting other lawyers who do court-appointed work to join the Massachusetts Association of Court Appointed Attorneys, an advocacy group they hope will increase pressure on state legislators and the governor to increase pay rates.

Like many of his colleagues, Kidd objected to Winslow's insistence on funding legal assistance through the indigent counsel fee. "I'm hesitant about funding my services off the back of a single mother with three kids who can't pay her own bills," Kidd said after Winslow's speech on Friday.

William J. Leahy, chief counsel at CPCS, dismissed the governor's proposals as "seductive myths, not realistic proposals."

Thanassis Cambanis can be reached at tcambanis@globe.com.