Pay hike urged for lawyers of poor

A state commission urged Massachusetts yesterday to spend an additional $40 million a year to raise the pay of court-appointed private lawyers who represent poor clients, because low wages have undermined the judicial system by discouraging defense of the indigent.

The panel, appointed by Governor Mitt Romney and the Legislature after a wage dispute led to the release of three alleged drug dealers in Hampden County last year, said that hourly pay rates in Massachusetts are among the lowest in the nation, even with a modest increase approved last year. As a result, the panel said, lawyers refuse to take cases, imperiling defendants' constitutional right to an attorney.

The state should raise lawyers' hourly rates significantly, doing so in phases over the next three years, at an added annual cost of $40 million eventually, the commission said. It also recommended treating several types of misdemeanors as civil offenses, to eliminate the need for court-appointed lawyers, hiring 50 more staff lawyers at the state public defender agency, and more carefully scrutinizing defendants' assertions that they are too poor to hire their own lawyer.

Without major changes, the commission concluded, there is a risk that poor defendants will not have lawyers when they need them and that it will take longer for cases to go to trial in a criminal system already plagued by long backlogs.

''These consequences are real and dire to indigent persons in need of legal counsel, and they only serve to undermine the efficiency of a judicial system that already must compete for limited financial resources," the report said.

House majority leader John H. Rogers, who chaired the nine-member bipartisan panel, acknowledged that the state is strapped for cash. But Rogers, a Norwood Democrat, said in an interview that if the Legislature and Romney do nothing, the Supreme Judicial Court might step in with an ''unseemly court-mandated" remedy that could prove more expensive.

That, he said, could cause ''great constitutional friction" between the Legislature and the SJC, which have been at odds over same-sex marriage and other issues.

It is unclear how the commission's recommendations will fare at the State House.

Romney's spokeswoman, Shawn Feddeman, said yesterday that the governor would not comment, because he had not seen the report. House Speaker Salvatore F. DiMasi, a lawyer who recently was honored by the Boston Bar Association as legislator of the year, had also not yet reviewed the recommendations, a spokeswoman said.

Lawyers who represent the poor and attorneys' groups generally praised the report by the Commission to Study the Provision of Counsel to Indigent Persons in Massachusetts.

William J. Leahy -- chief counsel for the state Committee for Public Counsel Services, the public defender agency that oversees court-appointed lawyers -- said he welcomed the recommendations, though they fell short of what he has sought.

Hourly pay for court-appointed lawyers ranges from $37.50 for district court cases to $61.50 for murder cases. Leahy has recommended that the range be $60 to $120, depending on the seriousness of cases. The commission recommended a range of $55 to $110, to be phased in over the next three fiscal years.

''But given the reality of the state's economic situation," he said, the raises would be ''big steps forward beyond where we are right now . . . and it deserves to be endorsed and to be battled for."

Leahy was also pleased that the commission concluded that the public defender agency runs well.

Last August, Romney was furious when courts ordered the release of three alleged drug dealers because no lawyers were willing to represent them at existing pay rates.

The governor vowed to file legislation to wrest control of the public defender agency from the judicial branch, a suggestion that drew fire from an array of legal specialists and law groups.

Randy Gioia, cochairman of Suffolk Lawyers for Justice, which contracts with the public defender agency to represent poor defendants in Suffolk County -- said yesterday he was delighted that the commission recognized that the pay of court-appointed lawyers ''was abysmal and destroying the system."

But pay is not the only problem the commission identified. The panel also said that a disproportionate share of the cases involving the poor in Massachusetts are handled by court-appointed private lawyers, not staff attorneys at the public defender agency. In fiscal 2004, more than 2,500 private lawyers handled 182,528 assignments, while about 100 full-time staff lawyers handled about 9,200 cases.

To address what it characterized as an imbalance, the commission recommended that the state hire about 50 more lawyers to handle district court cases, family law cases, and juvenile court cases, particularly in Hampden and Bristol counties. The cost of hiring lawyers to handle just the district court cases would be $1.2 million, according to the commission.

The report also says that the state could save more than $2.1 million a year by decriminalizing several misdemeanors, including driving while unlicensed or uninsured and trespassing, that annually result in about 15,000 assignments of court-appointed lawyers. Prosecutors already have the authority to treat such cases as civil infractions.