The state's court-appointed lawyers, still frustrated that their pleas for increased pay rates are falling on deaf ears, continued to resist taking new cases last week despite frantic efforts to "recruit" them into duty to represent indigent clients.

A single-justice order of the Supreme Judicial Court issued last week allowed Hampden County judges to formulate their own lists for assignment of counsel, and Superior Court Judge Constance M. Sweeney has already appointed some civil trial practitioners to take cases in addition to recruiting criminal defense attorneys who were not looking to take on new assignments.

As attorneys warn that the situation in Springfield may come to other counties soon, bar leaders are taking issue with "recruiting" efforts including informal proposals to draft practitioners into pro bono service as a short-term solution to the crisis.

"The notion that attorneys from all segments of the private bar should volunteer to bridge the gap between the supply of public defenders and the demand ... is unrealistic and unworkable," Boston Bar Association President-Elect M. Ellen Carpenter told Lawyers Weekly.

Bar-advocate pay rates are still the sticking point in the crisis; the nominal $7.50 hourly raise hurried through on Aug. 4 by lawmakers — after criminal defendants without counsel were released in Springfield — has apparently only driven more bar advocates away. The minimum hourly rate for bar advocates stands at $37.50, an amount these private lawyers say is still insulting, and barely enough for them to break even in their law practice.

Legislators also created a new commission to study the problem of shrinking bar-advocate rolls, but a spokesman for the Governor's Office said that a report from that panel would not likely come out before February of next year.

In the meantime, as leaders from the Committee for Public Counsel Services —which oversees the bar-advocate program — and government officials continued last week to try to iron out some way out of the dilemma, Hampden County lawyers lamented the growing burden on them.

Terrence M. Dunphy of Springfield noted that "lawyers are being informed by the clerks that complaints for disciplinary action could be filed against them if they refuse assignments."

Contrary to published reports, though, SJC Justice Francis X. Spina did not impose the threat of disciplinary action in his edict last week, but he did issue an interim order that some observers believe will narrow the "drafting" of lawyers into public service in the future.

Spina empowered judges in Hampden County to assign counsel directly from lists created in cooperation with the regional administrative justice, potentially bypassing CPCS, with one important caveat.

"It is expected that the lists will include lawyers who are willing to accept assignments and who are determined to be competent for the matters to which they may be assigned," the judge wrote.

On the heels of the Spina order, the entire SJC has set a hearing on the matter for Monday, August 23, commanding Hampden County Bar Advocate President Anthony C. Bonovita of Springfield to bring records and testify regarding bar-advocate assignments and contracts between CPCS and HCBA.

The situation in Springfield is being closely watched by all Massachusetts bar advocates.

"What is happening in Springfield could happen in Brockton, Essex and Worcester courts before long," suggested Michael A. Vitali of Brockton.

A copy of the recent legislation can be found in the "Important Documents" section of our website at www.masslawyersweekly.com.

After the SJC ordered the release of prisoners for whom no counsel was available in Lavallee, et al. v. Justices of the Hampden Superior Court, et al. (see "No Bar Advocate Raise, But Crisis Warned," Aug. 2), judges began scrambling to find additional volunteer attorneys.

Citing paramount concern for public safety, Sweeney ordered CPCS lawyers to represent certain defendants, despite the fact that the lawyers maintained they were above statutory caseload limits.

She also sought information regarding public defender caseloads, but on Aug. 6, Spina reversed her order and made clear that the RAJ was the only authority that could investigate CPCS.

Three days later, three defendants were released from custody, leading to the emergency drafting of unwilling advocates.

An Aug. 12 letter from RAJ William W. Teahan Jr. to Bonavita announced that all bar advocates in Hampden County could be assigned to cases as necessary, stating that "[t]he attorneys' consent is not sought under the present emergency circumstances."

That same day bar advocates were pressed into service to represent 14 defendants who would otherwise have been scheduled for release.

But some lawyers handling appointed cases said that the limited numbers of private bar members available to serve couldn't continue to handle all the cases.

"They are waiving training requirements, caseload limits and billable hour limits," said Dunphy, who normally bills out private practice time at $150 per hour.

He said he would actually be losing money because the volume of assigned cases could interrupt his ability to have a normal practice that pays for the overhead costs of operating his office.

"They now want all of our time between 9 a.m. and 4 p.m. to be in court whenever necessary," said Dunphy.

Rosemary J. Cooper of Longmeadow asserted that she was already handling more cases than she wanted from her small home office before the crisis.

The 65-year-old said that she is trying to do "private work with a short-term focus" because of her age and desire to spend time with her grandchildren, but had to bill 1,400 hours last year due to caseload requirements.

She asserted that "there will soon be 150 lawyers needed for defendants sitting in jail without counsel now," adding that she plans to file a motion objecting to recent assignments.

Dunphy noted that Teahan's letter acknowledged the right of lawyers to decline appointment for "unreasonable financial burden," but added that several lawyers already received rejections on motions to contest appointments on due process grounds.

How the rulings on those motions might be appealed is an open question, but Spina's interim order already stated that he would "be available on short notice to review assignment orders that attorneys wish to challenge."

Lawyers said that the growing drag on legal system resources and the potential spread of the crisis to other communities could affect the entire bar.

Sources noted that the idea of pressing all attorneys into pro bono service had been discussed in emergency meetings held by various state officials to discuss the problem.

Thomas E. Workman of Taunton, president of the Massachusetts Association of Court Appointed Attorneys, said that a pro bono solution would require every lawyer to take on roughly five cases a year under the current load of 250,000 cases.

Middlesex County District Attorney Martha Coakley expressed some concern about that, noting that "New Jersey requires everyone in the private bar to take cases, but we need a better longer-term solution."

She said that erroneous convictions could result from "ineffective assistance of counsel" in such cases, explaining that criminal defense involves an intricate web of "timelines, procedural issues and substantive law."

But she also expressed some hope resulting from an Aug. 13 meeting spearheaded by Attorney General Thomas F. Reilly, stating that "it was a brainstorming session that was useful for getting basic issues [raised by the bar] on the table."

Reilly said the meeting with bar association leaders, bar advocates and district attorneys "presented some very substantive and innovative ideas to attempt to achieve long-term solutions beyond just money."

Sources say those solutions may include ways of getting private bar members around the commonwealth enrolled in health insurance programs channeled through the state, but no concrete proposals emerged from the meeting.

But other practitioners raised concerns with a lackluster response to the continuing crisis from the Legislature, noting that House Speaker Thomas M. Finneran reported that consideration of "additional steps" are not expected before next year.

Lawyers also expressed great disappointment that the House Ways and Means Committee effectively killed a bill by Rep. Brian Knuuttila that would have addressed cost-of-living adjustments for the future.

Practitioners said the Legislature's $7.50 per hour raise passed on Aug. 4 — and perceived as insufficient after more than 20 years of stagnant compensation — would exacerbate the problem in other communities now.

"The meager increase is being perceived as a 'slap in the face' to well-intentioned lawyers and their poor clients," said Randy Gioia of Boston, co-chairman of Suffolk Lawyers for Justice, an organization that aids in appointment of counsel for indigents.

"When lawyers need about $48 an hour just to pay their overhead to run a law office, the increase was an ineffective response to a growing crisis," he asserted.

Gioia noted that District Court assignments have become increasingly difficult to fill in Worcester, Holyoke, Essex, Barnstable and Plymouth counties after the recent legislation — further diverting the time and resources of those courts.

Nancy M. McLean of Orleans added that local bar-advocate associations also have reported difficulties in finding counsel for Barnstable, Bristol, Franklin and Hampshire counties after the recent unfunded pay hike.

Vitali predicted that more lawyers would refuse to accept new cases elsewhere.

He noted that the busy Brockton District Court has had several days with no attorneys available to take assignments recently, causing the number of unrepresented defendants there to balloon to more than 70 early this month.

Vitali, a former CPCS attorney now engaged in private general practice, added that the agency's lack of funding and paltry salaries have caused a mass exodus there in recent years as well.

He said that CPCS attorney rolls in the last five years have dropped from more than 200 to just over 100 now, making private bar support all the more imperative now.

Lawyers also noted reports that several criminal suspects have already been released in Plymouth County after lawyers declined cases there, while private lawyers in Worcester decided not to take new cases in September if pay rates don't go up before then.

While practitioners registered concern about the potential impact on the entire judicial system, they expressed cautious optimism about signs that the dimensions of the crisis may finally be understood.

"I have heard there was some genuine listening at the meeting with Attorney General Reilly," said Workman.

The MACAA board of directors urged its members the day after that meeting to "consider evaluating whether it is economically feasible to accept new cases" under an expected fair and equitable rate.

An Aug. 12 letter to assigned counsel attorneys from Willie J. Davis and William J. Leahy of CPCS similarly pleaded for private lawyers to be available for appointed cases, citing the recent legislation signed by Gov. Mitt Romney as a step in the right direction.

Eric Fehrnstrom, communications director for the governor, added that the new nine-member commission created by recent legislation "will study the public defender problem and recommend changes" in a report slated to come out in February.

He said the governor "hopes and expects bar advocates will go back to work" and characterized a meeting with Leahy and Davis as a "breakthrough" that led to "the first public call for them to come back to work."

But private bar members were not sure how many people would heed the call to return and they generally agreed that the recent raise and appointment of a commission to do further study would not patch a hole that is opening wider by the day.

McLean said that "the good faith response of a number of attorneys to return to accepting cases on the basis of anticipated fair compensation cannot be sustained by many of our members for longer than a week or two."

Vitali agreed, calling the recent legislation "a band aid to close a gaping wound."

Lawyers say Romney's public statements suggested that the wound was self-inflicted by the bar members going on "a strike."

That characterization may get debated in the Legislature, but Fehrnstrom said that Romney has already filed and has support for a bill that "would move CPCS into the executive branch" presumably to improve its management.

Andrew H. Good, president of the Massachusetts Criminal Defense Lawyers, said the proposal "would enable the executive branch to affect the balance of strength between the prosecution and defense in criminal cases, which is already heavily weighted in favor of the prosecution."

Gioia went a step further, calling the notion "a horrible idea," agreeing with constitutional scholars who have asserted that the police, the prosecutors and the defense lawyers can't be part of the same branch of government due to inherent conflicts.

Questions or comments may be directed to the writer at jcunningham@lawyersweekly.com.