BOSTON, APRIL, 1, 2005…..Hoping to avoid more "constitutional friction" between the state's highest court and the Legislature, members of a special commission today recommended sweeping changes to the system for appointing attorneys that lawmakers expect to use as they continue to build next year's budget.

The 30-page report issued today and unanimously adopted by the commission, recommends that the state pay appointed attorneys more to represent indigent clients, hire more public defenders to work in the district courts, de-criminalize certain misdemeanor offenses, and institute safeguards to ensure the system isn't being taken advantage of.

House Majority Leader John Rogers (D-Norwood), who chaired the nine-member commission, said the recommendations were the result of an exhaustive effort to determine what improvements were needed to the system for appointing attorneys to represent clients who cannot afford their own. He said legislative leaders and Gov. Mitt Romney would receive a copy of the report later today.

"The recommendations, if reasonably adopted by the Legislature, will extinguish the constitutional fires that are currently burning," Rogers said.

Today's action was sparked by a Supreme Judicial Court ruling last July that blamed attorneys' low compensation rates for driving away attorneys from representing the poor, leading to "severe restrictions on (the defendant's) liberty and other constitutional interests." As a remedy, the court unanimously ruled that if no counsel is available to represent an indigent defendant, they may not be held more than seven days and the criminal case must be dismissed after 45 days.

Private attorneys appointed to represent indigent clients, known as bar advocates, have long complained that the state's rate of compensation is unlivable and among the lowest in the nation. Several months following the SJC's ruling, the state authorized a $7.50 across-the-board hourly increase, raising the rates to $37.50 for district court cases, $46.50 for superior court cases, and $61.50 for murder cases.

Under the commission's recommendations, the hourly compensation rates would rise even more over a three-year period, to $55, $70, and $110, respectively, by fiscal year 2008. For next year, the hourly rates would rise to $50, $60, and $100, respectively - costing the state $24 million next year.

In fiscal 2009, the state should commit to a formula that would ensure the hourly rates are not lower than the 75th percentile of those paid to private attorneys representing indigent defendants in comparable states, the commission recommends.

Without that action, Rogers said it "could lead to an unseemly court mandate from the SJC that we adopt even higher rates of compensation and that would cause great constitutional friction between the SJC and the Legislature." He said he is also confident that bar advocates will recognize that this is a substantial increase, given the state's current fiscal condition.

"This will satisfy the overwhelming majority of bar advocates," he said. "There will always be those at the extreme that think the rates are either too high or too low."

Nancy McLean, press secretary for the Massachusetts Association of Court Appointed Attorneys, declined to comment on the recommendations, saying the MACAA board is reviewing the report and will issue its evaluation in a few days.

Bar advocates had lobbied for the state to double its hourly compensation rates.

When asked if he will be the main force lobbying for the changes on Beacon Hill, Rogers said he will be prepared to speak with his colleagues about the report. He added: "I am very mindful of the fiscal pressures. Few citizens are more mindful of the fiscal pressures than myself."

The commission is also recommending two pilot projects in Hampden and Bristol counties to increase the number of public staff attorneys at the Committee for Public Counsel Services (CPCS) to handle district court cases. Each county office would increase its staff by 15 attorneys, one investigator and three support staffers. CPCS would be required to report to the Legislature every four months for three years on the status of the $2.4 million pilot project.

In addition, the commission recommends CPCS hire an additional 20 attorneys to handle Children and Family Law cases and Juvenile Court cases statewide.

"While many witnesses told the commission that the best indigent defense systems are comprised of a mix of full-time staff attorneys and fully qualified private attorneys, no witness was able to do much more than speculate as to what the optimum 'mix' should be for the Commonwealth," the report said. "The most consistent theme that evolved from the relevant testimony was that affirmative steps should be taken to provide a more effective balance between the use of public staff attorneys and private attorneys." In fiscal 2004, about 180,000 cases were handled by 2,500 bar advocates; about 10,000 cases were the purview of 100 full-timers.

Anthony Benedetti, general counsel for CPCS, said he was pleased with the initial recommendations, specifically the proposal to increase the number of public defenders on staff. "We had asked for that," he said. "And this appears to recognize the need for a greater staff presence."

In a statement, CPCS praised the report and called on lawmakers to implement its recommendations. "The recommendations proposed in this report will, when implemented, go far toward providing the citizens of the Commonwealth with an assigned counsel system which complies with fundamental constitutional requirements," said CPCS Chief Counsel William Leahy.

The commission also recommends reducing the caseload of CPCS and the district court by amending the statutes for "non-serious misdemeanors" so they are punishable as civil infractions. The law change would apply to those crimes where defendants are rarely incarcerated, commission members said.

The misdemeanors include: operation of a vehicle with a suspended license, registration or insurance; shoplifting; disorderly person or disturbing the peace; trespassing, and larceny by check. Commission members say this change would reduce the district court's caseload by roughly 15,000 cases a year, resulting in an annual savings of more than $2.1 million.

"This is a foolish waste of taxpayer money," Rogers said. "No one ever goes to jail with these crimes -- Why should taxpayers have to pay for this?"

Paul Haley, a commission member and former chairman of the House Ways and Means Committee, said he was "disappointed" that these particular crimes had not be "de-criminalized" long ago, and the state could have been realizing the savings for many years. "These are cases where an attorney never needed to be appointed," he said.

In addition, the commission recommends making several legislative "technical corrections" to the procedures for appointing counsel, to ensure that only the "truly indigent" are receiving counsel. Those changes, Rogers said, could result in more than $1 million in annual savings.

The commission makes several "secondary recommendations" as well:

Bar advocates should not be eligible for state employment benefits;

Judges, attorneys and other judicial staff members deserve a salary increase;

Contracts between bar advocate groups and private attorneys should be amended to require attorneys to take a minimum number of cases each year; and

Various agencies, specifically the Administrative Office of the Trial Court and the offices that handle CPCS cases, must improve their relationships to help "foster an environment of mutual cooperation."

Suffolk Lawyers for Justice released a statement this afternoon quoting chairperson Randy Giolia as being "thrilled" with the commission's work.

Courtesy State House News Service