Springfield Republican -- August 14, 2004
By BUFFY SPENCER
SPRINGFIELD - Judges in Hampden Superior Court and the five district courts in Hampden County yesterday began forcing private lawyers to take poor clients at a pay rate many say is too low to cover overhead.
Hampden Superior Court Judge Constance M. Sweeney started her courtroom session by saying that no more defendants facing serious crimes in that court will be released under last month's state Supreme Judicial Court ruling. That ruling said people held in jail for more than seven days without a lawyer must be temporarily released on their own recognizance until a lawyer is found.
Sweeney began using a provision of the Supreme Judicial Court Rules of Professional Conduct to direct lawyers to take appointments to represent indigent defendants.
She said that Justice Francis X. Spina, a single justice of the state Supreme Judicial Court who was in Springfield Thursday, had instructed her to use Rule 6.2 to get representation for poor defendants.
Yesterday, Sweeney used that rule to direct lawyers Terrence M. Dunphy, Joseph Bernard, Mark Mastroianni and Mary Anne Stamm to take cases.
She said in the future she will devise an equitable way to assign cases, rather than call on lawyers who happen to be in the courtroom for other clients.
Sweeney said she intended to call on almost the entire bar in the area with criminal experience, not just those who have previously been certified by the state Committee for Public Counsel Services to take appointments as bar advocates.
Meanwhile, District Court Judge William W. Teahan Jr., regional administrative judge, informed Anthony C. Bonavita, president of the Hampden County Bar Advocates, that he is going to use Rule 6.2 to direct lawyers to represent clients in the five district courts in Hampden County.
Teahan said that after consultation with Spina, he will notify bar advocates that they will be assigned dates and cases in the five courts as needed. He said he intends to assign three lawyers per day for arraignments in Springfield District Court.
"The attorneys' consent is not sought under present emergency circumstances," he wrote.
Yesterday District Court Judge Robert Kumor was telling defendants who are held in jail at their arraignment that they would be brought back Monday because no lawyers were available there yesterday.
Lawyers Thursday were asked to return to representing indigent clients by William J. Leahy, chief counsel for the Committee for Public Counsel Services, the agency that coordinates representation for such defendants. Leahy said that Gov. W. Mitt Romney had agreed to work with the committee and Legislature next week to try to find a solution to the lawyer shortage.
Three men facing drug charges were released Monday under the court order stating that criminal defendants could not be held more than seven days without a lawyer. The release resulted in an outcry from the governor, the state attorney general and Hampden County district attorney.
Rule 6.2 says that lawyers "shall not seek to avoid appointment" by a court to represent a person except for good cause. The three good cause exceptions in the rule are: that representing a client would constitute a violation of the rules of professional conduct, that it would constitute an unreasonable financial burden and that the client or cause is so repugnant it would interfere with representation.
The Committee for Public Counsel Services runs the program in which private lawyers, or bar advocates, accept cases when they are able and are paid at an hourly rate. Lawyers have been declining to be appointed to cases, saying the pay did not cover their expenses and should be more than doubled.
The Legislature recently approved a $7.50 an hour increase to the pay of $30 an hour for District Court cases, $39 for Superior Court and $54 for murder cases.
Dunphy said yesterday that he had not intended to take new cases in response to Leahy's request. He said that it is a sad day when it's gotten to the point when bar advocates, after a year of trying to get appropriate pay, are being ordered to take complicated litigation at rates lower than auto mechanics receive.
He said the bottom line is that the rates do not cover his costs.
Bernard, who is not a certified bar advocate on the Committee for Public Counsel Services list, said that as long as it is not going to be "overburdensome" he does not care if he is appointed under Rule 6.2. Sweeney, when she appointed him yesterday, said she deemed him qualified.
Mastroianni said that he and other criminal lawyers have taken many cases in District and Superior Court, some without a fee and some with the state fee.