Two months into an attorney pay dispute that’s led to the dismissal of dozens of court cases, top lawmakers say that they’re working toward a solution to a financial issue that wasn’t brought to their attention until after they passed this year’s budget.
But the head of the state’s public defender agency told legislative budget-writers months ago about a need for an “influx of funding” to help raise the hourly pay for the private lawyers
“When you hear 2,800 attorneys who handle 80% of the cases, they really are the backbone of the system,” Anthony Benedetti of the Committee for Public Counsel Services said in March. “And so I urge you to consider some movement on the hourly rates. Public defense isn’t a luxury. It’s a necessity.”
Some bar advocates, as the private defense attorneys are known, stopped taking new cases in late May in protest of pay rates they say lag far behind neighboring states. Under an emergency protocol now in place in some courts, judges have to release defendants who have been held for a week with no legal representation.
Governor Maura Healey, state House Speaker Ron Mariano and Senate President Karen Spilka told reporters Monday they hope to find a resolution soon, but didn’t offer details of what that deal might look like or a timeline. Legislative Democrats have previously estimated the price tag of the raise the bar advocates want at $100 million, a substantial sum in what’s expected to be a tight budget year.
Spilka, an Ashland Democrat, said there was no money for bar advocate raises in the budget Healey filed in January, which lawmakers spent the spring rewriting.
“Nothing was in the governor’s budget,” she said. “The House came back out with their budget in April. Nobody raised anything about the need for more funding or the concern about the funding. The Senate came out with some increase that was rejected. So we are now trying to resolve the issue and work it out.”
Added Mariano, “We’re trying to find out something that works in our budget because as you heard from the Senate president, they came to us after we were done, so now we have to go in and look for the money and we have to start cutting things.”
Bar advocate Jennifer O’Brien, in an interview with GBH News, disputed the idea that the conversations did not start until after the budget was finalized.
She said the Committee for Public Counsel Services, the state’s public defender agency, “has been advocating for raises for us for years.”
“In the past few years, they have consistently stated that there’s kind of a crisis looming, that there’s not enough people that are willing to do the bar advocate work,” O’Brien said.
In March, as lawmakers on the Ways and Means Committee were holding hearings on Healey’s budget and preparing to put forward their own spending plans, Benedetti, the CPCS chief counsel, asked them for more money to increase private-attorney pay.
He said a pay boost a few years ago “made a huge difference,” but the agency still hasn’t been able to recruit enough new private attorneys to take on cases.
“And so it’s critical that we have some movement on the hourly rates for the private bar,” Benedetti told lawmakers. “And again, I say that knowing full well that you have a difficult job in front of you, but we want to be able to do our job and provide representation, timely representation, to the people who are statutorily or constitutionally entitled to it.”
Bar advocates’ hourly compensation is set under state law at either $85 or $65 depending on the case type , with a $120 hourly rate for homicide cases.
When state senators debated their budget in May, they added in language that would raise the hourly pay by $5 to $10, but that measure was dropped in negotiations with the House. A different amendment proposing an across-the-board raise of $35 was withdrawn without any debate on the Senate floor.
O’Brien said many bar advocates emailed their lawmakers asking them to support the amendment offering the $35-an-hour raise.
“I can’t say they didn’t have the heads up that people were going to stop taking new cases,” O’Brien said. “They had to know that this was an issue for years, but maybe they didn’t realize how many bar advocates have just had it and they don’t want to take new cases, or the effect that it would have on people’s right to counsel and the courts.”
Along with the timing of the budget cycle, Mariano said another complicating factor is that the bar advocates are independent contractors.
“So you make an agreement with five people, then you’ve got to do it 55 more times,” he said. “We’re trying to get a consensus of where these folks would come back to work and how much it would take to get them to come back to work.”
O’Brien said bar advocates are “ready, willing and able to talk to anyone who will listen.” She called the $35 raise “the absolute bare minimum” and said some of her colleagues who aren’t taking new cases are making more money doing the same work in other states or practicing other types of law.
Republicans in the state Senate plan to meet Wednesday morning with bar advocates.
“Our hope is to identify a path forward that prevents the release of those charged with violent crimes, and a return to functionality for our criminal justice system,” Senate Minority Leader Bruce Tarr said in a statement.
