But private lawyers, known as bar advocates, say they perform a valuable service at a low cost.
“I’m surprised the governor would want to eliminate a successful, privatized group of very economically independent contractors,” said Deborah Sirotkin Butler, a family law attorney who takes some court appointments on child welfare cases.
She said she doesn’t bill the state for much of the time she spends on court-appointed cases
“When I represent a sexually abused 12-year-old, I get $50 an hour,” she said. “If I have to wait six hours for a status hearing, I can only bill for one. So I’m actually earning $12 an hour. But I do it because I care about kids.”
Hiring 1,000 lawyers, she said, would mean the state will have to pay salaries, vacations, insurance, and pensions.
“I pay for my own office,” Sirotkin Butler said. “I pay for every sheet of paper. No one reimburses us. We pay our own malpractice insurance and health insurance. Unless they’re intending to go the route of meet-and-greet, sham representation, how can it be cheaper?”
Currently, private attorneys take appointments to represent 90% of cases and staff handle 10% with 200 attorneys – unless case loads are to be vastly increased, it would take 1800 newly hired attorneys and 600-800 support staff, all new state employees to replace what local small firms do. Anotherwards, eliminating as many as 4000 private jobs (the local attorneys who may be driven out of business, and the secretaries and clerks they would have to fire).
Besides, Gov Patrick wants to move indigent defence into the Executive Branch. Sounds like a violation of separation of powers to me. Our founding fathers had had enough of King George and wanted checks and balances. There are neither checks, nor balance in Governor Patrick’s plan.
Fox News sent a reporter and a camera over I was interviewed in my home office. You don’t get rich representing kids in foster care, parents under attack by the state, or ordinary people with family law problems – and a home office and no staff are how I do what I do. What I said came from the heart.
You can see the Governor’s Budget here The work I do when I represent kids in foster care used to be at line item 0321-1510. That line item has been eliminated – and the new executive department costs more than privatized attorneys ever did.
Of course, just one of those DAs campaigning to abolish private bar advocates and court appointments donated $93,000 – just go check at the Office of Campaign Finance and key in “Sutter”. Sam Sutter is the President of the Massachusetts DA Association and I bet if you checked donations, one DA at a time, all of them have ponied up to the Governor, big time.
I am a Democrat, but on this one, Governor Patrick is dead wrong. Discarding decades of valiant service by dedicated private attorneys for the poor, and leading to thousands of laid off staff across the state is just plain a bad plan, and I believe it would take 2800 new hires to replace what private attorneys like myself have done as part of our law practices, often funding what we do for children and families in a child welfare practice with the private parts of our practice in other family law work such as divorces, wills, and the like.
I have posted an almost identical column at Red Mass Group.
You don’t implement wholesale changes in a fundamental aspect of our legal system–which of course is a cornerstone of our democratic system–through the budget process. Where are the studies, the hearings, the pilot programs? This, and many other “outside the box” ways of saving money need to be aggressively looked at. But you don’t make such radical changes in the way things are done in an arbitrary way. Dumb way for Deval to approach this.
The Mass Dist Attorneys Association is supported by taxpayer dollars, as is their webiste. Wonder what line item that is in?
I cannot see a way that this benefits the Commonwealth.
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p>Child and Family law is a time consuming and complicated specialty. By its very nature, it is time-sensitive, requiring prolonged concentration in order to defend a child in danger at the most vulnerable point in their life. Not the best venue for what is known as ‘good enough for government work’, with a workday ending at 5 pm sharp, 4 pm on a Friday.
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p>Salary is only the tip of the iceberg as far as government personnel expense goes. The pensions and benefit package is an enourmous surcharge on that salary, one that is a committment for decades rather then a single appropriation period.
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p>Rather than being a consumer of tax dollars, you are in fact an entrepreneur that produces tax revenue for the state. You pay sales tax to Staples, you pay property and excise to your town.
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p>Your specialty is an efficient way for the Commonwealth to provide for the rights of its younger citizens, and the Governor is wrong to try to end it.
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p>BTW – I was curious about the donation angle. And while my DA Michael O’Keefe did give substantially to Robert Travigilini and Tom Reilly, not a penny to Patrick. And Cruz gives to virtually nobody.
Don’t all bureaucracies wish to convert all issues to paperwork settlement?
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p>”File this form, wait {add your own long time} and your issue will be decided by an administrator.” The administrator could care less about the issue and will decide it based on the needs of his agency and the wants of his boss. It’s cheap, but justice? Not so much. File a claim with the VA, IRS, etc, to see how well it works.
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p>“The administration of justice is the firmest pillar of government.” –George Washington
Amber (Same Comment as at RMG minus a couple of typos)
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p>First saw you on the news and read the article, well done in both.
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p>A few points:
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p>1) State outsourcing above a certain threshold requires review by the state auditor (Pacheco law) to ensure that the cost benefit is being done appropriately and that the benefit to the state is really there. I would call on the auditor to do the same calculation here. Mind you, I am sure the results will be whatever the Governor proposes (still chagrined at Bump being elected), but the work should be done and subject to review as this Governor’s economic plans have a habit of turning out results opposite of those promised.
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p>2) Patronage has been rampant in other agencies associated with the justice system. If we are to hire this many attorneys and support staff all at once I fear that the vetting process will be limited and political patronage will come into play and we will have another scandal on the state’s hands.
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p>3) I cannot help but wonder if this is also a move to arrange spots for graduates of UMASS Law to land thereby helping the ranking of the school in terms of number of graduates finding full time employment. I thought the idea of a state law school was a bad idea at the time and now I am afraid it was just step 1 of a multi-step approach. Cynical, maybe but with some good reason I think.
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p>4) One can argue if the current 90 – 10 split is appropriate or if some other split works better. There can probably be good arguments made for moving towards 50 – 50, 60 – 40, who knows, but the way to do it is a phased approach, not this “shock” to the system which, if it doesn’t work can result in innocent people and those needing help in their time of need being harmed. If he really wants to move to more in-house indigent defense attorneys then transition over time, not all at once.
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p>I am afraid of the moves to consolidate and concentrate power in a single branch of government such as the Governor is making now. Hopefully the Legislature will ask some long and hard questions, but I am wary of their penchant for “trading” in situations like this.
Move to 80-20. See what the numbers bear out. Both the budgetary numbers, and the outcomes. It’s hard to have a good opinion about this without better numbers. Amber has experience and instinct, but she too doesn’t have the numbers.
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p>Go to 80-20, and let’s see if there are savings and/or better outcomes.
Pacheco gives the Auditor the authority to review a proposal to privatize a public function, not vice versa. It doesn’t apply here. It was a response to Bill Weld lying to the public and the Legislature about the value of savings from his privatization proposals.
The Auditor would of course have the authority to audit the program the same way the Auditor can review any other program, but does not have the same kind of power in this situation as when privatization is being proposed.
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p>I am not inclined to support proposals supported by DAs, but the use of Weldian tactics by privatization advocates here makes me doubt that their case has any merit.
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p>Sam Sutter and his committee combined have made $3910 in political contributions to politicians, not counting loans from himself to his campaign committee, and $3275 to the Coalition to Save Our Streets. This is nowhere near $93000. It’s 4.2-7.7% of the claimed total, depending on whether you count the CSOS donations in the total. Are all the numbers being bandied about by privatization advocates so wildly off the mark??
I realize it does not apply to in-sourcing. However, I think the same rigor and examination applied to outsourcing should apply to bringing services back internal as we could end up with a nasty surprise if the estimated benefits (both monetary and service effectiveness) turn out to be other than promised. This is an area where trust but verify is appropriate in my opinion.
we seem to be moving towards privatizing the care of those: the mentally ill, prisoners and those for who the state is responsible and publicizing for those the state is procecuting?
Can’t be comfortable having the person suing you, provide your attorney.
The agencies to which the Pacheco law applies include the ones in the Executive Branch but not the ones in the Judicial Branch.
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p>
Had not given much thought to the prospect of the elimination of the current program and the hiring of lawyers into the judiciary. Very much adds to the concern over this leap before you look approach to making changes to programs impacting programs within the judicial system.
I agree with David on this one, in that this is a debate worth having, and my hat off to Governor Patrick for moving this debate away from the DA’s and the bar advocates and into the public square. Anyone who thinks that this budget proposal is a slam dunk is just plain wrong. If the DA’s have such political clout, how is it that their budgets have been decreasing while the CPCS budget keeps growing? So let’s have this debate, and let’s hope it’s based on facts rather than innuendo – for example, what looks to me like a claim that Sam Sutter contributed $93,000 to Deval Patrick, which is not what I found on the OCPF website.
Putting yourself out there to bring this issue into this light takes not a small bit of courage and belief in one’s beliefs. Your clients and colleagues are lucky to have you on their side.
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p>On any issue in this area, I start on your side and have to be convinced away.
I view with suspicion. But I cannot find a record of him donating to Gov. Patrick, or going on the record about this proposal. I’ll have to inquire.
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p>”Efficiency” is not a valid argument to make this function part of the state. If I were a poor defendant or needed an court appointed advocate, making the DA’s job easier by letting him negotiate with a fellow state employee is probably not in my best interest.
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p>I’ve seen a few too many abuses to trust the system as it is. Why the hell would we want to give the state more power?
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p>I mean, it is “The State versus….” after all.
The link to their website is in my original post.
The DAs and the Governor have had a very contentious relationship for the past 4 years. The DAs have had their budgets cut relentlessly while the money to defend indigents has risen steadily and the Gov. was focused on CORI reform. There is no love lost there. This move by the Governor is actually the first time that the DAs have applauded his efforts.
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p>The money the private attorneys have churned out of the system is usually a supplement to their incomes…nice to get an extra $40, $50 or $60 thousand when your law practice is weak.
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p>The Governor wants to tighten sentencing…well, you have to get convicted before you can get a tightened sentence…and you can’t expect the state’s prosecution team to get the convictions when our prosecutors are paid less than the Pike toll takers.
I would like to see a list of all of the 3,000 private lawyers who are taking the indigent cases with how much each lawyer billed the Commonwealth in a given year. If we can see the salaries of all state employees, we should be able to get an accounting for these private lawyers. WHERE CAN WE GET THIS INFORMATION?
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p>We have a glut of lawyers in this state and many churn the public defender cases to keep their own practices afloat. Some are very adept at driving up the bills and I would like to see them publicly posted. Then we can make an informed judgement on why state public defenders would be a cost saving option.
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p>I have a feeling that the Governor and the District Attorneys are right on this one.
…and as you can see there are some folks that make serious money…
…the numbers reflect about 7 years of compensation…
Of the 3000 attorneys, many take a toke two or three cases a year, and work for firms like WilmerHale. Less then 700 attorneys do the bulk of their practices at the $50 an hour – and they cannot accept cases after working 1400 hours, so the average for the minority contingent of near full times is $70k a year. The Boston Herald has it right in their editorial today.
The DAs are paying prosecutors a pittance and once they have a few years experience in the courts they figure out that they could double their pay by leaving the DAs office and going over to defend indigents. It’s a crazy system.
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p>Call any DA and they will confirm what I am saying is true.
Last year, the state spent $117 million on private attorneys at let’s say an average cost of $65 (you say it’s $50, the Globe says 50-100 – I’m weighting yours higher). That translates into 1.8 million compensated hours.
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p>The average annual salary for Massachusetts state legal counsel is $55,506 (BLS series ENU2500050292213). Assuming a 35% benefit load, that’s a total cost of about $75,000. If they’re paid for 2,000 hours a year, their total hourly cost is $37.50. Of course, they’ll only be productive 1,500 or so hours a year (vacation, holidays, sick time, internal meetings, etc.)
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p>So if the state took that total $117 million and spent it on lawyers that cost $75K a year, you’d get 1,567 staff attorneys. At 1,500 hours a year, that’s 2.35 million hours a year (a 30% increase). Now this doesn’t address the issue of unbilled time, but my guess is that most folks bill for what they can, so while you may work for free, many others don’t – I can’t say, but clearly someone finds the argument that folks are running up bills compelling, otherwise, this wouldn’t be an issue.
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p>Now, if they only hire 1,000 attorneys, the capacity will only be around 1.5 million hours (17% short) if 25% of the hours from private attorneys weren’t billed, they’d call about 35% short.
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p>Clearly, a more rigorous assessment is necessary, however, the notion that bringing something inside government saves money and provides greater accountability is one that I’m surprised more folks on this blog aren’t receptive to.
I agree it deserves a look and a test phase or pilot program not an immediate leap of faith. There is too much that can go wrong and I am afraid the assumptions are that everything will go right. Yet, we are dealing with people’s lives here so best to move deliberately, not hastily.
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p>I also think that your cost comparison is missing the overhead costs of administrative staff, assistants, space, computers, etc. There is a whole lot more that goes into running an in house legal firm than just salaries and benefits (although I think the benefits might be light with health care, post employment health and pensions, but that has more to do with how state funds these (or doesn’t) than your estimate).
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p>The cost for the “outsourced” legal staff contains all their costs. In order to compare we need to include all the internal costs some of which are listed below:
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p>Salary
Benefits
Office Space
Office Furniture
Computers
Printers
Phones
Cell Phones / PDAs
Software Licenses
Subscriptions
Continuing Education Classes / Seminars
Office Supplies
Office Staff and all their requirements
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p>So it may be a great idea or not, but the work done so far (or at least provided in support of the Governor’s plan) does not contain the detail to analyze the proposed change.
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p>Time to step back, take a hard look and do this properly.
As I read the legislation, it requires that public defenders be paid what the Assistant DA’s are paid. Is that such a bad idea? And is it such a bad idea to require public defenders to have the same caseload as ADA’s? I’m just asking. Don’t have a horse in this race, but would like to hear from folks who know more about this than me.
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p>I have friends who do public counsel work in criminal cases. One asked me rhetorically what I thought the Suffolk County murder conviction rate would be under the new system. (We occasionally talk about some of the more…interesting courtroom follies in the Superior and District Courts.)
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p>What I suspect – in my more cynical moments, of course – is that replacing experienced trial attorneys with new hires with limited experience and (including clerical assistance, office overhead, health insurance and pensions) at greater expense means more convictions irrespective of the merits of given cases.
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p>Makes the DAs look good, lessens wear and tear on investigators.
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p>Tough on defendants, though.
…if so, $144,000 ain’t bad pay…
…you make chump change…I mean I clicked through just a fee pages and saw several folks making $500,000 plus in legal fees from the state. Who the heck is Alan Black? that he pulls in $718,000 in legal fees (ok maybe that is his firm…but down town law firms don’t generate those kinds of feed=s from the state.
…who still makes some nice money over a 7 year period
…Hard to (or not so hard to) believe that the Herald would publish compensation based on 7 years and assume mere mortals like me will read the fine print.
Now, divide $144k by 5 and you get DRUM ROLL under $30,000 a year. DO THE MATH.
those against it weren’t so invested in working in the current system. It sounds little different from teachers’ unions opposed to compensation changes, or government employees opposed to pension changes. Their ox is being gored and they’re fighting back.
than someone who is “invested” both by experience in the system and value based commitment?
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p>So feel better. Soon. Just judicial resolution for battered children is at stake. And justice delayed is, in these cases, justice denied.
The rhetoric here is pretty thick. I’d much prefer to hear a rational argument, for and against, for these changes, instead of hearing how Governor Patrick wants to “destroy private indigent defense” and then sift through innuendo as to why he is doing it.
Maybe someone can inform us as to what goes on in other states? Is it unusual to have bar advocates handle 90% of these cases? Do all states pay by billable hour, or are there other fee structures that are used? And, most importantly, do these differences in other states lead to different results?
those fighting this proposal being invested in the old system. Why is it better, and what is flawed about the proposal? You implied that those who have worked in it know better, but never offered any reason why, other than a vague warning about battered children. If you have them, provide facts.
The American Bar Association has compared indigent defense in all 50 states and the current Massachusetts system received an award for the best representation. Massachusetts exemplifies, currently anyway, the ABA’s ten principles for an indigent defense system
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p>Aa summit on indigent defense held last year determined that so-called staff public defender systems were chronically overwhelmed, underfunded, and suffered from such high case loads that in many states, indigent defendents received no actual protection or representation.
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p>In fact, Governor Patrick’s plan seems to fit the profile from A race to the bottom
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p>Let me know if you want more information; I will supply it. Almost always late at night, though, as between private and appointed clients and family, I don’t have much free time.
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p>And, of course, I haven’t had a paid vacation or paid sick day since I stopped working for the State of Michigan, became a mother, and went to work for myself. Not that I am whining, but the staff public defender week is 37.5 hours – mine is not, and according to my husband, 50% of what I do is done without pay though I hope I am more businesslike then that, he may be right.
Chapter 54 of the Acts of 2005 which did raise the billable rate to $50 from $30 after 20 stagnant years for district court appointments also authorized two commissions – one to study indigency verification, and one to study decrminalization. Neither were appointed.
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p>Indigency verification is important because only indigent folks – and children – should get appointed attorneys. Why isn’t the DOR data base available for a run, anyway? How many “don’t ask, don’t tell” appointments occur? Attorneys are not allowed to rat out clients and…drum roll…that is probation’s job under the current set up. Don’t blame the attorneys because Gov. Romney and Gov. Patrick kicked the can and didn’t appoint those commissions..
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p>Of the 300,000 or so cases for which attorneys are appointed, almost 80% are nonviolent District Court cases, many of these misdeameanors. I am told after appointments occur, at most 62% are prosecuted and 98% do not lead to incarceration. These cases take up almost 80% of the cost of indigent defense, to the best of my understanding, but should be bumped out as soon as incarceration is no longer a possible result, as long as there is a real and coherent process –
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p>Appoint those two commissions and put indigent defense on a diet without violating separation of powers or the 6th Amendment right to counsel – it truly doesn’t take a Ph.D to get this right. The Governor’s proposal, though, gets it wrong on so many levels including violations of separation of powers, link in original post.
This seems like a puzzling situation. The state is paying to both prosecute and defend people. Massachusetts may have the best defense, but is that a good thing if the prosecution is not good? Seems like a recipe for turning guilty people onto the streets, and that’s contrary to the state’s goals.
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p>I can understand that lowering the quality of the defense isn’t necessarily the best option, it’s a race to the bottom. On the other hand, is a race to the top the best thing too? On a whole, the state should be concerned with giving the correct punishments to the correct people. A balance should exist. How do we get to an appropriate balance when there is one entity paying for everything? How do we ensure that the deck isn’t stacked one way or another?
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p>I can appreciate the governor’s point that the state paying contractors an hourly rate for defense offers some bad incentives. Is there anything in place to weed out those defenders who are more interested in billing than defense?
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p>Deborah, I read your quote in the Globe, and saw that you represent abused children — you’re not defending someone from prosecution, it seems like you’d be more of a prosecuting attorney in some ways. Your cause is noble; what about the public defender who is defending accused child abusers? A good defense is a good cause, but not on the same level of advocating for an innocent child, is it?
I am a solo practitioner who has never tried a criminal case. I operate a one woman law firm where I do primarily family law, and a certain number of court appointed child welfare cases. Sometimes I am appointed to represent parents, sometimes children in cases arising pursuant to G.L.c. 119. I also do appeals for private clients, and some appeals as appointed appellate counsel for parties in G.L.c.119 termination of parental rights cases. Also, both judges and private parties sometimes choose to put me in place as a guardian ad litem but that doesn’t involve the Committee for Public Counsel Services.
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p>I don’t have access to the numbers for whole categories, or the cost of each of the 13 panels because I don’t work for the Committee – I only have access to what I find online because I am not a “power holder” or “stake holder”.
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p>CPCS itself published a report, as it was required to do, as to costs – and also there are very strict standards that control what we do, see: The Rules and Standards for Court Appointed Work
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p>Therefore, I limit my comments to what I know, or feel but am not an “expert” who can give numbers I simply do not have.
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p>What many do not realize is that there are 13 different panels, dealing with everything from defending indigents against involuntary commitment to murder.
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p>Where the system is weak is that it is up to the Courts to determine indigency before appointing counsel, and often they don’t bother, they just appoint – and the fee does NOT go to the attorney but the general fund (about $15 million last year, even with sloppy indigency determinations).
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p>So when I get asked questions seeking data I don’t have, all I can do is hunt for it online because I am only a private, independent contractor not a beaurecrat.
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p>I do believe in “innocent until proven guilty” and that too many public defender systems have become underfunded, over worked and ineffective, see Gideon’s Broken Promise which goes into the failure to provide equal justice.
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p>Hope this helps answer your questions.
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The lawyers who do bar advocate work are often also the ones who represent poor plaintiffs in civil cases for employment discrimination, consumer protection, and products liability.
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p>You don’t make a lot of money doing poverty law work. The risk and expense in taking civil cases against corporations and their big firm lawyers is great. The bar advocate program at least provides some money for solo and small firm lawyers who have offices in places like Brockton, Dorchester, and Lawrence.
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p>Deval is a corporate lawyer. He spent his career in the private sector working for big firms representing large corporations. He’s helping his big firm buddies by starving legal representation for the poor.
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p>This proposal will also strip all of the experienced private attorneys defending people accused of homicides and serious felonies out of the system, leaving an easy path for the DAs.