The president of the Massachusetts Association of Court Appointed Attorneys said it is foolhardy to change a system that works well.
At right is Mark L. Hare, a Springfield lawyer and president of the Massachusetts Association of Court Appointed Attorneys. On the left in this 2004 photo at Springfield District Court is William J. Leahy, the now-retired chief counsel for the Committee for Public Counsel Services, which oversees indigent defense in Massachusetts.BOSTON – State legislators are poised to overhaul the state's system of legal defense for the poor, but the changes won't be as dramatic as those sought by Gov. Deval L. Patrick.
Though the changes fall short of the major shakeup proposed by Patrick, they are moving in the direction the governor wants and are significant enough to spark opposition from leaders involved in the current system.
"It would be foolhardy to tinker with something that isn't broken," said Mark L. Hare, a Springfield private lawyer for the poor and president of the Massachusetts Association of Court Appointed Attorneys.
Right now, the state contracts with Hare and more than 3,000 other private lawyers to provide almost all the defense work for the indigent. The private lawyers receive hourly pay that includes $50 an hour for District Court cases, $100 an hour for a murder case and $60 an hour for Superior Court.
The state currently also has 230 staff public defenders to handle some of the criminal cases.
In moves legislators said are intended to reduce costs of the system, the state House of Representatives approved a plan to hire an additional 200 full-time staff lawyers to defend the poor, while the state Senate approved a separate plan to add 270 full-time staff lawyers along with about 70 additional support staff.
A final compromise plan is expected to be included in the state budget for the fiscal year that starts July 1. The fiscal 2012 budget could be released this week.
Under the House plan, 80 percent of the legal work for the poor would be done by private lawyers, down from the current 90 percent, and 20 percent would go to staff, state public defenders. The Senate wants to have 70 percent of the work done by private lawyers.
Patrick proposed abolishing the entire system of private lawyers on contract and replacing them with 1,000 additional new staff lawyers and 500 support workers.
Jay Gonzalez, the state's secretary of administration and finance.Jay Gonzalez, secretary of the Executive Office for Administration and Finance, said the more modest changes approved by legislators are "absolutely" a victory in some sense for the administration.
"It's moving in the right direction," said Gonzalez, the point man for Patrick on the issue. "We have to go in this direction."
Gonzalez said the existing system of private contractors cost about $200 million a year. If the system were eliminated and staff public defenders were hired, it could be $140 million a year, according to Gonzalez.
That $140 million accounts for paying extra pensions, health care, other benefits and overhead for the proposed 1,500 additional state employees, Gonzalez said.
One of the private lawyers' main argument for keeping the current system is that the governor's proposal would be far more costly because the state would pay for fringe benefits and overhead for new state employees. Private lawyers for the poor now fund their own benefits and insurance and operating costs such as office space and utilities.
"The current system now is far, far cheaper," said Julia H. Durchanek, a private lawyer for the poor in Holyoke. "We're not by any stretch overpaid."
Gonzalez said he is hopeful that state legislators will agree next year to move more aggressively in hiring more staff public defenders if the initial additions next year prove to save money.
Gonzalez indicated he was also pleased that legislators will revise the governing structure for private lawyers for the poor. The system now is overseen by the Committee for Public Counsel Services, an agency under the judicial branch with a 15-member board of directors all appointed by the state Supreme Judicial Court.
The governor wanted to eliminate the board and place indigent defense under an independent executive branch, largely because he is concerned with a conflict of interest stemming from some board members billing their own agency for legal work , according to Gonzalez. Four board members billed the state $250,000 in the aggregate this fiscal year, according to Gonzalez's office.
The state Senate plan calls for banning board members from billing the state and could be adopted in a compromise with the House.
Both the House and the Senate plans would also permit the governor, the House speaker and the Senate president to appoint some members to the governing board of the committee for public counsel services. The House and Senate would keep the system under the judiciary.
In other moves that could be approved as part of the budget, the House wants to reduce a yearly cap on billable hours for the private lawyers to 1,650 hours, down from the current 1,800 hours. The House plan would ban lawyers from accepting new cases after 1,350 hours, down from the current 1,400 hours. The Senate is calling for no changes to the billable hours.
The Senate wants to raise a fee that the poor pay for a lawyer to $200, up from $150. Both plans would also aim to save money by improving procedures for verifying that people are poor and truly cannot afford legal defense.
Hare said an independent study is needed to determine how the planned changes would affect the private lawyers, their clients, local businesses, economies and the committee for public counsel services.
“It seems extremely careless to spend taxpayer funds on a vast expansion of state government without an independent review as to whether the plan will save money and improve the delivery of legal services," Hare said.
Sen. Gale D. Candaras, a lawyer and Wilbraham Democrat, said the private lawyers for the poor are important for the economy of at least downtown Springfield. The lawyers rent lots of office space, employ people and help boost the downtown, she said. On the other hand, new full-time state public defenders would be dispersed around the state, she said.
It might save money to replace private lawyers on contracts with more staff public defenders, but Candaras said it could hurt downtown economies in the process.
Candaras sponsored a Senate-approved plan to create a special commission to determine the economic impact of relying less on private lawyers and more on public defenders for indigent defense.
Rep Stephen Kulik, D-Worthington, vice chairman of the House Ways and Means Committee, and Rep. Angelo J. Puppolo Jr., D-Springfield, a member of the same committee, said the plan by the House is more reasonable than the governor's plan for the state's system of legal defense of the indigent.
"Neither the House, nor the Senate agreed with the governor that it would be an improvement to eliminate the current system," Kulik said. "We believe a hybrid system of public defenders and outside counsel makes a lot of sense."