Blue Mass Group

Reality-based commentary on politics.

Bar Advocate stalled back pay passed tonight!

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The House and Senate passed a Supplemental Budget tonight.  It contains the money to pay invoices submitted by court appointed attorneys, some times called “bar advocates” for work done between 4/1/07 and 6/30/07, timely billed, and constitutionally mandated work.

Remember – bar advocates are NOT public defenders.  Bar advocates are self-employed independent contractors.  Bar advocates receive no health insurance and are NOT employees.

Public Defenders are state employees, civil service classified workers with W2 income, heath insurance, sick time, sick leave banks and defined benefit pensions.

The world of a bar advocate and the more cushioned world of a public defender are very different, though both sets of attorneys work for far less than market rates, doing hard constitutionally mandated work for the indigent.

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  1. this cover work done through June 30t, right?  do you forsee the same tribulations in getting payed for the next quarter?

    • The FY 08 budget is short by more then $20 million for the costs that are estimated, based on FY 07.  I just hope two things:

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      1.  That when CPCS runs out of money to pay the invoices submitted by the private, court-appointed bar that the legislature and governor will submit and pass supplemental funding more quickly, and:

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      2.  That FY 09 will fund line item 0321-1510 AT LEAST at the total needed to pay all FY 07 invoices, not at the FY 07 or FY 08 “presupplemental” level.

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      Working at a fraction of market rates because of a commitment to open courts and innocent until proven guilty should not mean feeding one’s family on food stamps  all summer – while in court 4 days or more a week defending the poor.  For two many of my colleagues, that has been the reality because of the fact that the line item, 0321-1510 is underfunded, and supplemental funding can be caught up in horse trading over other line items.

      • But you are right about FY2008 and 2009.

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        I would suggest attorneys working for CPCS funding begin cheking on remaining balances in January, and not perform services for which they will not be paid.  That is, don’t DO the work until the money is there, not the other way around as has been done.  The courts depend upon them to make the system work, and will be helpful in obtaining funding in ADVANCE if dockets are being held up.

        • The SJC has held that judges can draft any bar advocate if they are short attorneys, and make them work for the statutory rate against their wills, if needed, under threat of losing their licenses.

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          See:  http://caselaw.lp.fi…  Check out footnote 18

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          Also, when one attorney, a grandmother who was a former bar advocate objected, the SJC held that not only could former and non-bar advocates be drafted, but they would have to object as a financial hardship, reveal their tax returns, and were at risk of being yanked before the Board of Bar Overseers.  See:  http://caselaw.lp.fi…  which gets you to a archived web stream of the Cooper oral argument and decision.

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          Further, as bar advocates are not employees, they cannot unionize, and any “concerted action” could be subject to FTC action or Rico.  See  http://www.bristolcp…

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          So to enter the filed of public service law as a bar advocate, besides the low pay, and the poor treatment generally, can open one up to “indentured servitude” if there is an shortage of bar advocates and you date to try to leave.

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          Pretty amazing – “God save the Commonwealth”

          • I cannot THINK of anything that will get CPCS forward funded FASTER than a bunch of $300/hr attorneys who have been shanghaied into doing bar advocate work! MAN, will they advocate for you THEN!

            • Only bar advocates and former bar advocates were conscripted.  Gee what a surprise.

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              And if you had atteneded the “Lavallee hearings” you would have seen and heard Asst. AG Ron Kehoe trying with every ounce in him to find a way to stick a RICO count on the folks who were not taking cases because they were fed up and being worked into bankruptcy.

            • I cannot THINK of anything that will get CPCS forward funded FASTER than a bunch of $300/hr attorneys who have been shanghaied into doing bar advocate work!

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              …a US$300/hr lawyer is shanghaied into doing bar advocate work, s/he probably works for a moderately large firm.  As such, s/he will probably have associates who will be doing most of the grunt work.  It probably would not be bad pre-trial and trial experience for the associate.

          • First, has any attorney ever been drafted to represent a case without pay?

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            Second, I gave around $30K last year through my IOLTA toward public defense.  I’d rather do that than work for someone who a) didn’t pay and b) when they did pay, they pay lousy.  Kinda goes to the sage advice, that the best thing you can do for a particular cause, is to take a job that pays you the most you can possibly earn.  Then take that cash and contribute it towards the cause.

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            Third, griminy, look at the size of that budget! That a big pile of justice that we pay for in Mass…$119 Million.  I know Mass uses more a greater ratio of private attorneys to public defenders than any jurisdiction in the US, but seriously, $119 million in addition to the Public Defender budget! Am I reading that correctly?  http://www.mass.gov/…

            • Not only that, in most states, child welfare cases, “Care and Protection” are NOT included in the cost of indigent defense, but paid for “county by county”.

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              39% of that line item [0321-1510] is for care and protection, including attorneys for abused kids, as well as attorneys appointed for those facing involuntary commitment.

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              The agency as a whole is funded by 0321-1500, 0321-1510, 0321-1513, etc.

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              0321-1510 is for court appointments across 12 areas of law, not only criminal defense and I am told this year it will be almost 300,000 cases!  Of those, remember, 39% are not criminal cases.

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              Also, when a new law is passed turning some sort of anti-social behavior into a crime, then that means “more cases” but the bill that creates a crime does not need to also state the projected cost in police services, district attorney services, or indigent defense – even so, the caseload goes UP.

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              The cost per case is not all that high, if you divide the number of cases by the total line item – but the sheer volume of ceases and criminalization of certain behaviors is huge.

              • I’m glad you finally got your money.  The work of court appointed attorneys for children and Guardian ad Litum is very important.

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                But that does not mean that the line will be adequately funded next year.  In fact, it is predictable that it will not be, in that so many members of the legislature are attorneys and have a long history of demonstrated indifference to what you do.

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                My suggestion to cease work if funds are not there was meant in te spirit of trying to correct a predictable situation.  Perhaps posh attorneys are ‘never’ indentured now, but that doesn’t mean they wouldn’t be if there was a wholesale lack of attorneys working on spec, undercutting their own best interests.

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                You know the deifinition of insanity – doing the exact same thing over and over, and expecting a differnt outcome.  Please, don’t let that be your MO for this coming fiscal year, or we will be reading identical posts about pending supp. budgets next July, and that will be a shame for legal independent contractors responsible for their own business.

                • http://www.bristolcpcs.org and read the press section.

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                  The result of one attorney walking away from work that attorney loves is like the sound of one hand clapping.

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                  The result of many attorneys making like refusenics was Chapter 54 of the Acts of 2005.

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                  The best thing court-appointed attorneys can do is join the Massachusetts Association of Court Appointed Attorneys and “find their voice, collectively”.  The wild cat stuff only hurts those who can least afford it – and actually does not work, as well as being on the razor’s edge.

            • Second, I gave around $30K last year through my IOLTA toward public defense.

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              You gave interest on clients funds to the state, instead of giving the interest to your clients?

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              Odd.

  3. When was it signed?  10/19.

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    So, hopefully, this whole story is now “old and stale” – the next chapter is ensuring that House One, which will start the budget debate cycle for FY 09 on or about January 28th, 2008 fully funds line item 0321-1510…so all for now, folks.

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