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Many Massachusetts attorneys are refusing to take additional court-appointed indigent clients, intensifying a long-simmering dispute over pay rates. Three lawsuits have also been filed that seek to boost the pay rates. But the state’s highest court recently upped the ante by implicitly threatening to discipline lawyers who won’t take appointments. While that threat may make Massachusetts’ situation unique, many states are facing crises in their ability to represent indigents effectively. [NLJ, July 12]. In Louisiana, for example, public defenders carry caseloads of more than 700 cases. They often meet their in-custody clients at arraignment and then don’t see them again for months at time, said Catherine Beane, indigent defense counsel for the National Association of Criminal Defense Lawyers. ‘A real zoo’ In a July 28 decision, the Massachusetts Supreme Judicial Court ordered that indigent defendants in Hamden County who don’t get lawyers within seven days must be released. Also, those without a lawyer for 45 days get their charges dismissed, though without prejudice. Lavallee v. Justices in Hamden Super. Ct., No. JC-09268. So far, in Hamden County, three defendants facing drug charges have been released on their own recognizance without bail hearings. Since the court made its threat, lawyers have been assigned to other defendants, although some question a number of the lawyers’ qualifications. Thomas Workman, president of the one-year-old Massachusetts Association of Court Appointed Attorneys and a solo practitioner, asserted that lawyers are not on strike. “If we were striking, we would not be working,” he said. “But we’re still working diligently on the cases we’ve already been assigned. It’s just we can’t afford to take new appointments.” In 1983, an independent committee of the judicial branch�the Committee for Public Counsel Services (CPCS)�was established to oversee indigent legal representation. Its few staff members have caps on the number of cases they can carry. The rest of indigent representation, including conflicts, is borne by CPCS-qualified private lawyers, called bar advocates, through their local county organizations. In 1983, the CPCS set the fee scale from $30 to $54 an hour, depending on the type of case. After suffering its own crisis, New York state’s pay rate was recently raised to a range of $60 to $75 per hour. CPCS and the Massachusetts office of the American Civil Liberties Union filed separate suits regarding the indigent defense crisis in two Hamden County cities, resulting in the Lavallee decision. Those suits ask the court to use its supervisory powers to increase the rates to a range of $60 to $120 an hour-rates set by CPCS in 2002, but ignored by the state legislature. In the alternative, the suits ask the court to fashion its own fair rate structure. But that’s not what the court did, and its decision seemed to satisfy no one. It found that chronic underfunding caused an insufficient number of competent lawyers to represent indigents, but it left the setting of adequate rates to the Legislature, at least for now. And then it turned up the heat by ordering the release of the unrepresented. “The court found that the crisis was caused by the inadequate level of compensation,” said William Leahy, CPCS’ director. “The remedy of dismissing and releasing people does not address that cause.” While Lavallee was specific to Hamden, they most likely apply across the state. “I think . . . it is instructive statewide,” said Dan Winslow, Governor Mitt Romney’s chief counsel. “To say it only applies to Hamden County would be splitting hairs, since the decision was based on constitutional principles.” Soon after the CPCS and ACLU suits were filed, Holland & Knight’s Boston office filed a class action on behalf of indigents unable to get counsel. Freesia v. Commonwealth of Massachusetts, No. SJ-2004-0282. That suit asks that a special master be appointed to sort out the mess. The governor recently signed a law to create a commission to study the problem and recommend solutions, said Winslow. In the meantime, a $7.50 an hour raise took effect on Aug. 1. Justice Francis X. Spina issued two orders last week. One reminded CPCS and Hamden County Bar Advocates Inc. (HCBA) of their ethical and contractual obligations to take appointments. It also authorizes judges there to appoint lawyers who were not bar advocates to take cases if necessary. The other order set a hearing for Aug. 23 to determine what efforts CPCS has taken to enforce its contract with HCBA. It also ordered HCBA to “give testimony concerning the failure of bar advocates to appear for duty.” “We have said that this is not the time for people not to be taking cases to make a political point,” Leahy said.

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