Wages faulted in lawyer dispute
Leader denies driving protest
The head of a group of private lawyers who represent indigent criminal defendants in Hampden County said yesterday that he has ''done everything possible" to persuade public defenders to handle cases, but that the state pay rate has driven nearly half of the eligible attorneys away.
Testifying at a three-hour hearing held by a justice of the Supreme Judicial Court, Anthony Bonavita, president of Hampden County Bar Advocates Inc., denied that private lawyers have organized a work stoppage to pressure the state to raise pay.
''I'm aware that there are various people out there who don't want attorneys to take cases . . . but I'm not aware of an organized effort," Bonavita said in response to questions by Assistant Attorney General Ronald F. Kehoe.
Justice Francis X. Spina held the hearing at the Suffolk County Courthouse in Boston to see what the bar advocates and the state Committee for Public Counsel Services are doing to remedy a dearth of court-appointed lawyers for indigent defendants in the Springfield area.
The state public defender agency has contracts with a dozen bar advocate groups across Massachusetts, including the one in Hampden County.
Many of the 2,500 bar advocates across the state have complained for years about Massachusetts pay rates, among the country's lowest. But the problem became a crisis in May when the agency and the American Civil Liberties Union sued Hampden judges for denying requests for higher pay.
Last month, the SJC ruled that defendants could not be jailed for more than seven days without a lawyer and that charges would be dismissed if they had no lawyer after 45 days. On Aug. 9, a Hampden judge released on bail three defendants facing drug charges, prompting an outcry from Governor Mitt Romney, Attorney General Thomas F. Reilly, and local law enforcement officials.
Testifying for more than an hour yesterday, Bonavita detailed a series of letters he has written since 2000 to the Committee for Public Counsel Services, judges, and legislators to express alarm over an impending public defender shortage and to bar advocates to persuade them to take more cases. But it has been a losing battle, he said, because legislators have not raised hourly pay rates.
''I believe we've done everything possible to bring people back to the program, but it's been a struggle and a fight, due to what's been going on with the funding issue," he said.
The Legislature recently approved a $7.50 hourly increase, but has yet to pass a supplemental spending bill to fund it, at a cost of about $20 million a year.
Even with the increase, the pay scale -- $37.50 to $61.50 an hour, depending on the seriousness of the cases -- would still rank among the nation's lowest, according to The Spangenberg Group, a West Newton consulting firm.
Although the number of criminal lawyers in Hampden County who are certified to take court appointments has increased in recent years, Bonavita said, the percentage of those who have signed contracts with his group to take cases has plunged.
In 2002, 116 of the 135 certified lawyers signed contracts, he said. In 2003, 93 of 139 certified lawyers signed contracts. And this year, only 84 of 154 certified lawyers signed contracts.
Many bar advocates say the pay for representing indigents fails to cover the cost of running a law office, Bonavita said.
''I've had people tell me, 'I'd rather work in a convenience store,' " Bonavita said in response to a question from David P. Hoose, a lawyer for the ACLU. He said he does not have the authority to force bar advocates to take cases.
Two officials with the public defenders' agency, deputy chief counsel Patricia Wynn and director of supervision for private counsel Nancy Bennett, also testified.
They said the public defenders' agency has no reason to terminate its contract with Hampden County Bar Advocates, because the group was doing everything possible to recruit lawyers.
Spina said he will take the testimony under advisement. But he said he found it hard to believe that Bonavita lacked the authority to direct bar advocates to take a minimum number of cases.
However, Hoose insisted that bar advocates are volunteers and said that ordering lawyers to take cases would probably only drive more out of the program.
''No matter how this gets parsed out, the bottom line . . . remains money," he said. ''It's not going to change until the Legislature puts money into indigent defense, and that's not going to happen until the court orders it to do that." 