Lawyers say they are guardedly optimistic over a recent recommendation in a legislative commission's report calling for a gradual increase in the hourly rate of pay for bar advocates.

Bar advocates in Massachusetts, private attorneys who represent indigent defendants, are currently among the lowest paid in the country, which has been one of the key reasons some lawyers are no longer willing to take court-appointed cases.

But the bipartisan commission created by statute last year to study the bar advocate crisis in Massachusetts has recommended a three-year phase-in of rate increases beginning in fiscal year 2006.

If the commission's recommendations are adopted, the hourly rates for District Court, Superior Court and murder cases, currently set at $37.50, $46.50 and $61 50, respectively, would be increased to $55, $70 and $110 per hour by FY 2008.

Boston Bar Association President M. Ellen Carpenter commented that the report's recommendation for a pay increase "marks an important first step in the commonwealth's ability to retain the dedicated men and women already doing this work, and recruit additional qualified lawyers as necessary."

Despite the fact that lawyers said they were pleased with the progress made in respect to the compensation issue, however, the report was not received without criticism.

Some lawyers expressed concern that the gradual pay raise would not come fast enough. Others said they disagreed with the proposal to reduce the maximum number of billable hours allowed per year.

Taunton attorney Thomas E. Workman Jr., president of the Massachusetts Association of Court Appointed Attorneys, specifically questioned the necessity of having two pilot projects in the District Court where newly hired Committee for Public Counsel Services staff attorneys would represent indigent persons.

Despite his concerns, however, Workman's organization issued a prepared statement indicating that it is willing to move forward.

"Believing this proposal to be a work in progress," the statement read, "MACAA is honored to work with the [L]egislature in finalizing the increased compensation, improved indigency verification, and other safeguards to provide zealous defense of constitutional freedoms."

The full text of the commission's final report can be found under the Important Documents section of our website, www.masslawyersweekly.com.

After hearing testimony from more than 40 witnesses at eight public hearings over the last six months, the commission released its final report, highlighting several major areas of concern and recommending action plans.

One of the major trouble spots identified by the nine-person commission dealt with bar advocate compensation, which has been the hot button issue for attorneys from the beginning.

The study called the current hourly rates "relatively low," and identified the rates as the primary reason attorneys "turn away from CPCS work."

As a result, the commission proposed a three-year phase-in for rate increases. Beginning in FY 2006, which starts July 1 of this year, rates for District Court, Superior Court and murder cases would increase to $50, $60 and $100 respectively, if the Legislature adopts the commission's recommendations.

The commission also recommended that the commonwealth commit to a formula beginning in FY 2009 that would guarantee that hourly rates paid to CPCS private counsel in Massachusetts never fall below the 75th percentile of hourly rates paid to private attorneys representing the indigent in "comparable" jurisdictions.

Regarding the proposed hourly rate increases, Boston attorney Randolph Gioia, co-chair of Suffolk Lawyers for Justice, said he was hoping they would have been larger but realized the "political reality" surrounding the situation.

Massachusetts Bar Association President Kathleen M. O'Donnell agreed and publicly encouraged the Legislature to immediately accept the higher rates recommended for FY 2008 — the last year of the phase-in.

"I think [the commission] did a great job and created a very thoughtful document," the MBA president said. "I was just disappointed that the increases weren't more immediate."

In addition to the rate increases, the commission's report also recommended that the current cap of 1,850 hours that private attorneys are able to bill now for their representation of indigent clients through CPCS should be reduced to 1,500 hours.

The rationale, according to the report, is to "encourage a broader and more diverse number of attorneys who are willing to accept CPCS cases, thereby more equitably distributing the indigent representation caseload, and ... [to] redirect the CPCS system back toward its original purpose of providing a means for attorneys to gain valuable experience while supplementing an individual's law practice without becoming the predominant feature of that practice."

But not all attorneys were fully supportive of this idea.

"There's a give from one hand, and a take from the other," said Emily A. Karstetter of Boston in an e-mail to Lawyers Weekly. "While I applaud the goals of the reduction, I fear that the reduction will occur without the concomitant increase in the rate of pay."

She said that "focus on improving a core group of bar advocates whose 'specialty' is the representation of the poor, without the cap on hours, would have made as much sense."

But, in general, Karstetter said she was encouraged by the rest of the report.

Another major finding in the commission's report was that, currently, there is a disproportionate ratio of the number of private attorneys versus CPCS attorneys who represent the indigent.

In fact, the report stated that private attorneys handle about 95 percent of the entire indigent caseload — a ratio unheard of in other jurisdictions.

As a result, the commission recommended the establishment of two pilot projects — one in Hampden County, the other in Bristol County — where staffed CPCS offices would be established to determine whether a future cost savings would be realized by increasing the number of CPCS staff attorneys in those areas.

Fifteen attorneys, one investigator and three support staff would staff each of the two pilot programs. The attorneys would be assigned to various districts within the county.

The commission said it believed that monitoring the pilot programs over time would allow for the collection of "verifiable data regarding the financial savings and efficiencies, if any, to be gained from increasing the number of CPCS public staff attorneys."

But Workman, the MACAA president, questioned the efficacy of this recommendation, arguing that the data already exists to answer that question.

Workman said he presented data to the commission during one of its public hearings comparing the work over a year-long period in Bristol County performed by public defenders to bar advocates.

As a result, he said that because the rationale for creating the pilot program is to obtain meaningful data about what would be the "right" mix of services, the program will be a waste of money.

But Gioia was less critical of the pilot programs, saying he was "glad the commission worked really hard and glad they are exploring different ways of providing indigent representation."

The commission also found that the number of non-serious misdemeanor offenses requiring the assignment of counsel was severely straining already limited resources.

It identified five low-level misdemeanor offenses that, in many jurisdictions, are considered civil infractions not requiring the appointment of counsel. Those offenses included operating a motor vehicle after a license or registration has been suspended, shoplifting, disorderly person or disturbing the peace, trespass and larceny by check.

The commission found that between FY 2000 and FY 2004, the courts assigned counsel in more than 22,000 cases to represent indigent people charged with one of the five enumerated misdemeanors.

Consequently, the commission recommended that certain criminal statutes be amended "to more accurately reflect the practical administration of justice in the Commonwealth, while simultaneously yielding significant cost-savings to the taxpayer" by levying "harsh civil penalties rather than illusory criminal penalties" against those who commit such crimes.

To that end, the commission also encouraged a strong reliance by district attorneys on G.L. c. 277, Sect. 70C, which, since 1995, has afforded them the discretion to treat certain misdemeanor offenses as civil infractions.

In the event that prosecutors are reluctant to avail themselves of the statute, the commission recommended that the Legislature amend the statute to establish a rebuttable presumption that certain misdemeanor offenses should be deemed civil infractions "unless the Commonwealth files an affidavit establishing just cause to the contrary." In the long-term, the commission recommended that a permanent body be established to periodically review all criminal statutes and categorize all offenses as either "Class A" or "Class B" misdemeanors. Class A would always be treated criminally; Class B would always be treated civilly without the possibility of incarceration.

Finally, the commission recognized the importance of correctly identifying the truly indigent when it comes to the government providing legal services. As such, the commission recommended amending the indigency verification statutes and requiring additional reporting from the commissioner of probation assessing their effectiveness.

PHASING IN — A legislative commission has recommended a phased-in, three-year rate increase for bar advocates (above).