Legislation raising the hourly rates for bar advocates has prompted hundreds of private lawyers to renew their contracts and return to court-appointed work, bar advocate leaders say.

Four months after a bipartisan commission issued a report recommending stepped increases in the hourly rate of pay for bar advocates, the Legislature passed the bill raising court-appointed attorneys' hourly fees to $50, $60 and $100 for District Court, Superior Court and homicide cases, respectively.

Prior to the bill's passage, many bar advocates — especially in Suffolk and Middlesex counties — had allowed their yearly contracts to expire as of July 1, arguing they could not afford to take the work at the previous rates. At one point last month, the bar advocate defection left more than 400 indigent defendants without counsel statewide, according to statistics on the Bristol County Bar Advocates' website.

While there are still some controversial provisions of the legislation — including one that could ultimately lead to a fee being imposed on all Massachusetts attorneys to help fund the state's indigent defense system (see sidebar on page 56) — lawyers said that the recent passage of Chapter 54 of the Acts of 2005 is a good first step on the road to fair compensation.

"We're out of the basement," said William J. Leahy, chief counsel for the Committee for Public Counsel Services. "There is actually a 'good news' story here. The Legislature has performed well and the administration has acted with appropriate speed to sign the bill into law."

Leahy added that his office is already in the process of supplementing the payment on roughly 6,200 bills that had been paid under the old rates since July 1 — the retroactive effective date of the law.

Despite the pay increase, however, some lawyers said that there are still more systemic improvements that need to be made, so they will continue to advocate for the stepped increases the commission recommended back in April.

The highlights of the new legislation, signed by Lt. Gov. Kerry Healey on behalf of Gov. Mitt Romney, include:

* an increase in bar advocates' hourly pay to $50 from $37.50 for District Court and family law cases; $60 from $46.50 for non-homicide Superior Court cases; and $100 from $61.50 for murder cases;

* a cap on indigent defense representation of 1,400 billable hours per fiscal year;

* a pilot program providing adjunct staffing of an additional 110 attorneys within the public defender division of CPCS, as well as the addition of 20 attorneys to handle children, family law and juvenile court cases;

* the creation of a commission to study the imposition of civil penalties on certain cases and the feasibility of classifying some low-level misdemeanors as "class B," with no possibility of incarceration; and

* the creation of a second commission to study the implementation of a dedicated fee or surcharge to all members of the bar and/or on fines levied on parking and traffic violations as well as on fines levied as part of criminal or civil sanctions by a court to be used to subsidize the cost of providing counsel to indigent persons.

The full text of the legislation can be found under the "Important Documents" section of our website, www.masslawyersweekly.com.

Randolph Gioia, co-chair of Suffolk Lawyers for Justice, said he believes most attorney will renew their contracts. "A large majority of the contracts are still rolling in," he noted.

"Contracts are pouring in in Suffolk and Middlesex counties," agreed Arlington attorney Deborah Sirotkin Butler, legislative liaison for MACAA.

Taunton attorney Thomas E. Workman, Jr., president of the Massachusetts Association of Court Appointed Attorneys, said that the bill's passage was "a big step and no one wants to seem ungrateful."

However, he and others said there were a few issues under the bill's provisions that keep it from being a perfect solution to the bar-advocate crisis.

One major flaw of the newly passed law, according to Workman, is that it creates a smaller differential between the rates paid for District and Superior court cases than had existed previously.

According to Workman the current differential between the rates paid for District and Superior Court cases is 20 percent, down from previous differentials of 30 and 24 percent.

In the long run, Workman said he believes the decreased differential could act as a disincentive for attorneys to take on the more cumbersome, higher-stakes cases where qualified representation is needed most.

"There has been a shortage of folks to work in the Superior Court in the past. And if you don't have people there then you don't have people to move up to the murder list," the MACAA president explained.

"[The Legislature] need[s] to go back and revisit the issue," he said.

Others were critical of the legislation's smallest increase, which went to attorneys handling care and protection cases.

With only a $3.50 hike over the previous rate of $46.50 an hour paid for such cases, one attorney questioned whether she could afford to take them.

"I personally cannot take on trial court cases for $50 an hour," said Butler.

She said she can get paid for only one hour of court "wait time" even though she may have to wait as many as four or five hours a couple times a week in court while representing an indigent client.

"I will take appellate case work because it doesn't get hit by the wait time," she said.

Nonetheless, Butler said the legislation "is a positive step and I'm hopeful that it is indicative of further positive action in the future."

Despite the criticism, lawyers said they're generally pleased with the legislation but that there's still plenty of work to be done.

Gioia said the next step is to take care of the backlog in cases.

"That's a top priority for us," Gioia stressed. "And it's important to assure that an increase in rates translates into an increase and improvement of the quality of representation."

Workman said he'll be keeping a close eye on any pay increases that may be on the horizon for other under-compensated groups like prosecutors, public defenders and even judges.

Whatever the Legislature does for them, he said, "They should do the same for us."

Meanwhile, Leahy and his office are gearing up to hire 110 staff attorneys for the pilot program and another 20 lawyers to handle family law and Juvenile Court cases.

He said he expects to begin the hiring process by early fall, once all funds have been appropriated.

Over the coming year, bar advocates vowed to continue advocating for their cause, urging the Legislature to take pay rates to the next level recommended by the commission to $53, $65 and $105 an hour.

"And I'm confident that once the Legislature takes a closer look at the issue, they're going to appreciate that the bar advocates are still paid a low rate and that our entire criminal justice system is under-funded," said Gioia.

"We need to do something to make sure that we don't run into these kinds of issues again — build something into the law — so that Massachusetts never falls below the 75th percentile [for bar-advocate pay] compared to other states," he added.

But in the end, said Butler, the only thing that matters is whether those in need of legal counsel are receiving it.

"I hope that indigent people have better access to justice as a result of this bill because that's what it's all about, not about how much money I make," she said.

Should members of the bar at-large be required to fund the indigent defense system in Massachusetts?

That's the question a legislative commission will be studying, according to a provision in the newly enacted bill aimed at fixing the bar-advocate crisis.

Pursuant to the new legislation, Chapter 54 of the Acts of 2005, "There shall be a commission to study the implementation of a dedicated fee, multiple fees, surcharge or combination thereof to be used for the purpose of providing counsel to indigent persons who are entitled to the assistance of assigned counsel."

According to the law, the commission will recommend a fee structure to provide all or a portion of funding for counsel to indigent persons "which shall include, but not be limited to; an additional fee assessed to members of the Massachusetts Bar." The commission is required to report its findings and recommendations to the Legislature on or before March 1, 2006.

The idea has some attorneys questioning the wisdom of such a move.

"It seems inappropriate to me to allocate a governmental responsibility unfairly on one single group of people," said Boston attorney Randolph Gioia, co-chair of Suffolk Lawyers for Justice.

"It's the responsibility of the entire citizenry to furnish competent legal representation to the indigent. Doctors aren't the ones funding Medicaid," he noted.

Taunton attorney Thomas E. Workman Jr., president of the Massachusetts Association of Court Appointed Attorneys, agreed, but said there is precedent for such a system outside of Massachusetts.

Workman explained that in New Jersey, where pro bono representation is mandatory for all licensed attorneys, the government tells attorneys which cases they will take.

"And if you don't have the expertise to handle the representation, you can hire someone who does," Workman said, calling such a setup the equivalent of forcing the private bar to subsidize the indigent defense system.

But Committee for Public Counsel Services Chief Counsel William J. Leahy said the only thing the legislation requires is that a commission looks into the possibility of subsidizing the cost of indigent defense by charging a fee to members of the bar.

"It's a study and there's never any harm is studying things," remarked Leahy.

"But you really cannot commit to any idea where the impact falls on one single profession," he added.