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Compromise will hire more lawyers for the poor

By David Riley | Daily News Correspondent | August 28, 2011
Leaders of the state’s public defender system will soon detail a plan to hire more staff attorneys to represent the poor and contract less of that work to about 3,000 private lawyers across Massachusetts.
The cost of defending low-income people came under the spotlight on Beacon Hill this year when Gov. Deval Patrick proposed hiring about 1,000 new state attorneys and ending the use of private attorneys altogether.
While the administration said the initial plan would save more than $45 million, MetroWest and Milford-based private attorneys argued benefit, pension and overhead costs for an expanded state staff could prove more expensive. They also said the changes could jeopardize the quality of legal counsel for the poor.
“Any of us who do this work ultimately say they are not going to save money,” said Framingham attorney Stephen Bistoli. “I think the state probably thinks there are a lot of law schools in Massachusetts and they can hire new graduates, with less experience, for less money.”
After lawmakers offered less sweeping proposals of their own, Patrick ultimately signed a state budget last month that makes less ambitious reforms. It requires at least 25 percent of cases with indigent defendants to be handled by state attorneys by next July, up from about 10 percent now.
The state Committee for Public Counsel Services, which is in charge of providing lawyers to the poor, must deliver a plan to legislators by Sept. 1 to meet that goal. It will mean less work for private attorneys who handle cases for the poor, though they will be given preference in hiring.
Lisa Hewitt, the committee’s general counsel, said the plan will likely require hiring 346 new full-time employees, including attorneys, support staff, social workers and investigators.
A final number is still in the works, she said. The state now has 252 public defenders on its payroll.
“It is a bit discouraging when you have done it for a long time and offer taxpayers a great rate of return because they don’t pay any overhead,” said Bradley Phipps, a private attorney in Medway who has done public defense work for the last 20 years. “I think most of the people who do this, we understand it to be important. I think we do good work.”
While the Massachusetts Bar Association is against the measure, the organization’s chief legal counsel said he was happy to see the Legislature did not accept Patrick’s initial proposal of 1,000 new attorneys, and that the state would still utilize a blend of public and private lawyers.
“We just believe that national statistics have shown the Massachusetts system is the gold standard,” said Martin Healy of the MBA. “With this move to the public counsel, there is going to be additional expenses, but time will tell whether this is going to be a cost saver for the state.”
The Committee on Public Counsel Services believes the existing system is fine, but it will make the new one work, said Anthony Benedetti, the committee’s chief counsel.
“You make your argument,” he said. “Then when the Legislature tells you what they want you to do, you do it.”
While many private attorneys could lose the steady paycheck they get for public defense work, some believe this decision will hurt clients the most because they will be losing experienced representation.
“I think people are definitely going to suffer because the people who are taking these cases have been practicing for many years, as opposed to new lawyers who need more supervision and a lot more hand-holding,” said David Levinson, a private attorney in Natick.
Private attorneys receive a $50 hourly rate for cases in district court, $60 for superior court and child protection cases, and $100 for murder cases, Hewitt said. Those rates remain a fraction of those paid at many private firms, she said.

Maria Rockwell, a Franklin attorney who focuses her practice on probate and fiduciary litigation, domestic relations and civil appeals, said the hourly rate she gets for public defense work is one fifth of the amount she gets as a private attorney.
“Frankly, it is not 100 percent of my practice area,” said Rockwell. “And a practitioner does not get rich on the monies we are paid. I certainly do not do this for the money.”
Rockwell and other area attorneys, like David Manza, a Framingham attorney who previously worked as a public defender before opening his own practice two years ago, said most of the private attorneys who do this work do it because they believe in the service.

“I think a lot of private attorneys enjoy the work,” said Manza. “They do it because they really believe in the work and they want to be part of quality representation offered to indigent clients.”