Governor Patrick’s proposal to dismantle the Committee for Public Counsel Services (CPCS) and move the constitutionally mandated defense of indigent Massachusetts residents into the executive branch is poorly thought out. This proposal is at least a moral violation of the separation of powers conceived by John Adams. John Adams developed the doctrine of separation of powers to protect the ordinary citizen against abuses of power by an over-strong executive such as King George. If Governor Patrick consolidates everything he is seeking to consolidate into the executive, the Judicial branch will be eviscerated and judicial independence and separation of powers will become a sham and a mere illusion.
Further, the proposal does not address the civil cases, or the reason that civil case costs which were once about 1/2 are now about 1/5. Hint – Commissioner Angelo McClain is doing something right in reducing case load. It is DCF case load that drives the cost of representation pursuant to G.L.c.119 – not attorneys!
Legislation via the budget is a throwback, and not the kind of thoughtful, progressive, compassionate approach I expected from Governor Deval Patrick.
The reality is that those attorneys such as myself who make indigent defense part of their practice float loans to the commonwealth, and will never cost the taxpayer a pension. The proposal by Patrick underestimates, minimizes, and does not shed true light and air on the real cost and perhaps – not on the real reason for his proposal.
Further, many attorneys would have to layoff staff if their income decreases suddenly. My own “ballpark estimate” is that if Governor Patrick’s proposal is enacted, it will lead to a loss of at least 1000 private jobs and as many as 500 bankruptcies.
Amber, I hate to quibble with such a good post, but you link (twice) to a Globe letter to the editor, but present it as the Globe’s point of view. Maybe you meant to link to something else?
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p>Also, I’m missing the governor’s rationale for this. What benefit is there to the administration in his proposal? Better put, what is the benefit to the public?
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I know I linked to DA O’Keefe’s letter, not sure which link you mean? I intended to link to the Globe’s editorial of yesterday which, I think, shows basic ignorance of indigent defense and reliance on a faulty, biased, incomplete data-set possibly supplied by the lobbyists for the DA association. There are plenty of former assistant DAs in the administration, after all.
Your comment spurred a question, Deb — can anyone recall a major issue where the Globe has not agreed with Patrick? Taxes, gambling, education, this, they’re all on the same page. What am I forgetting?
…and I don’t know enough to comment there, it begs the question as to whether the Globe follows Patrick or Patrick the Globe, and if the latter does the Governor feel the Globe has so much sway that he needs to follow them politically?
Deval’s Commissioner of Education openly stated in an email that they need to keep the Globe on their side.
From the Gloucester scam:
is arguing that he will save money by replacing state employees in developmental centers for the intellectually disabled with private-vendor employees, and yet will also save money by replacing private attorneys serving as public defenders with state employees?
Regardless of how you feel about the issue, the comparison isn’t apt. It’s really an apples and oranges comparison.
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p>It’s all about the way the folks in the current system are paid and how they would be paid in the new system. With the move from private attorneys to state employees, rather than paying on a per hour basis, you are paying a fixed salary.
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p>Private attorneys charge for their time and charge for everything associated with their work. So if it takes an hour for a lawyer to travel from their office to a hearing, they bill for that hour. And then for the hour to go back to the office after the hearing. So the cost of the travel is $100 or $200 to the state (depending on the type of trial). If that same lawyer works for the state (or is otherwise a salaried employe), the cost of that travel is zero.
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p>At it’s heart, this is really almost an argument about legal fee models that you are also seeing in the private world. Should lawyers bill hourly or should they a fee for a project? Or, in this case, should private lawyers be used or should this be taken up by state employees.
A private, by-the-hour client, yes. But appointed attorneys aren’t compensated in this way.
But I think appointed attorney are paid this way. I think they get $50 an hour for non-murder cases and $100 an hour for murder cases. Isn’t that what Amberpaw is saying when she waits for four hours and only gets paid for two?
If you are waiting for one case for four hours, at $50.00 an hour, you get paid for one hour. It is true that defending parents and representing children, the parts of it that are billable (and one can only bill for the items listed in the assigned counsel manual, which are NOT all that a diligent attorney actually does). If you are waiting four hours for two cases, then you can bill one hour per case. But even if you are waiting six hours for three cases, the maximum is two billable hours wait time. True, a staff attorney could sit there and knit for six hours and be paid for all six, no matter what, while waiting. Why is that an improvement?
hours billed doesn’t correspond to hours worked, at all.
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p>Every hour you sit waiting is an hour you’re not working on something else, which means you are getting paid zero.
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p>Amberpaw poits out the details of the limited pay for wait time, but doesn’t mention that the courts think nothing of having attorneys wait for hours.
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p>In some counties, the superior court judges have a 2:00PM motion list. The clerk doesn’t even come out to see who is there until 2:30, and they don’t start until 3:00. Anyone who is not first on the list wastes most of their day, which is why private clients wind up paying $1200 for a 4 minute, uncontested hearing.
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p>Attorneys who do state paid appointment work spend their whole day, and get paid bupkes. It is as if your employer tells you to report to Brattleboro, VT at 9:00 AM for work, and maybe they’ll have something for you to do sometime between 9:00 and 1:00PM. So you schlep all the way up there, sit there picking your ear for four hours, and then then they tell you to come back tomorrow. And by the way, even though you spent 8 hours today doing what they told you to do, they aren’t paying you, and the nerve of you, you greedy parasitic pig, for seeking payment when you didn’t even do any work.
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p>O’Keefe is a disgrace to the profession.
Attorneys work in their own counties. They are not able to bill for travel for the first hour or first 30 miles no matter how long the travel takes. The standards of practice make that clear, see the Assigned Counsel Manual Similarly, if an attorney waits four hours for a case to be called, currently, that attorney may bill for one hour. Just to clear that error up!
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p>Further, the real cost of an employee is far more than salary. That all being said, my belief is that the only way Gov.Patrick’s proposal could even possibly save money is to rack up caseloads so high that little or no actual defense would occur.
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p>fka – how familiar are you with Care and Protection cases, and how they work? Want to know more? As it happens, I care about due process, the constitution, and know full well that I do pro bono work with every civil case appointment I accept and float a loan to this state by waiting to be paid and covering all my own overhead for the state’s cases, made possible by the private clients who also seek my services for both trial level and appellate level representation.
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p>I see this debate as really being about whether or not there is a commitment to the Declaration of Rights of the Constitution of Massachusetts, access to justice, and due process, myself.
Hey AmberPaw, thanks for the info.
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p>I’m actually not decided how I feel on this issue one way or the other. But I do find the larger debate in the legal world about billing methods interesting.
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p>So my question…and this is largely thinking out loud here…is whether there is a way to save money and keep private attorneys involved by moving to a fixed fee system. Basically pay a set stipend per case rather than for allowing hourly billing.
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p>As someone on the fence on this issue, I will be honest about a couple of your points that don’t really do much for me. With regard to your loan concept, that’s pretty much true with private clients as well. When I was an attorney doing deal work, our bill wasn’t paid until the deal closed (or died for good), which could be a process that took months or longer. And many lawyers who work on the plaintiff’s side of litigation only get paid IF they are victorious and that payment comes when the client gets paid. So a lot of lawyers are essentially floating a loan to their clients. That’s how the business works.
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p>Your due process argument rings slightly hallow to me as well. I’m also not convinved that private lawyers make better advocates than state employees. We know there are bad lawyers out there. I imagine there are some lawyers taking these appointments because they can’t get other paying clients, not because of their belief in due process.
That each case is so different. I will remind you, again, that I don’t do criminal work. I also have a thriving family law practice of which the care and protection work is just a part. Also, Care and Protection cases do not involve DAs, though they do involve an executive agency and require at least an attorney for a child, a mother and a father (and sometimes two fathers, or for kids with different positions who need separate attorneys to avoid conflicts) These are very complex cases that often go on for years and at least for these, flat fees would be a hardship. No way to avoid “conflict counsel” in these cases, either.
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p>What I do as a private lawyer is if I get busy beyond a certain point, I can close intake, and not take any more cases – either private or appointed, and keep my quality up. If you are a staff attorney, you cannot do that – and a major problem with the “all staff” model the only way to be economical is to have crushing case loads. See, for example: http://datageek.freedombloggin… which lists case load limits. The Governor’s proposal would require, with 280,000 cases a year, at least 200 cases per public defender in his all staff proposal. Not good.