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April 4, 2005

will MACAA react like a guild to indigent defense report?

Filed under: pre-06-2006 — David Giacalone @ 5:39 pm

The Massachusetts Association of Court Appointed Attorneys (MACAA) issued

 a press release today (April 4, 2005), giving its initial reaction to the Report of the

Commission to Study the Provision of Counsel to Indigent Persons in Massachusetts

(see our post).  The statement praises the hard work of the Commissioners and spotlights

the recommendation that assigned counsel rates “reach the 75th percentile of national

rates by 2009.”


– read the full story here, which notes

MACAA’s carefully-worded offer of cooperation is more significant: lawyer cellphone small flip

“Believing this proposal to be a work in progress, MACAA

is honored to work with the legislature in finalizing the increased
compensation, improved indigency verification, and other

safeguards to provide zealous defense of constitutional freedoms.”

 and which concludes:

MACAA says it was formed “to ensure that the highest quality of legal

representation is given to each and every person entitled to court appointed

counsel regardless of ability to pay.”   It will be interesting to see whether

it chooses to focus on the goals of a guild:  securing higher fees and assuring

work for its members (through opposition to the increased use of public defenders,

 which would help the State comply with national standards for indigent defense)  or

whether MACAA chooses good faith cooperation with state leaders to build an

indigent defense system that will work effectively and efficiently for their clients,

the courts and the public.

Supplement (July 26, 2005): National standards for indigent defense favor fulltime public defenders, whenever the population and caseload can support them. (Gideon’s Broken Promise, ABA, 2005.)     In Massachusetts, 95% of indigent defense is handled by private assigned counsel. [See the 2005 Mass. Study Commission Report, at pp. 9 – 10.]  Nevertheless, the bar advocates have rabidly opposed the Study Commission’s proposal to have test projects, which would hire more public defenders in the rural counties where the problem is most extreme, and to move toward a more appropriate ratio PDs to BAs — because they do not want to lose the income.

In Hampden County virtually all district court cases are handled by bar advocates.  According to MACAA, the average panel member spends 85% of his or her time on bar advocacy work, in Bristol County it’s 77%. (per Bristol County Bar Advocates chart)

In its section on Massachusetts, the recent landmark American Bar Association report on the nation’s indigent defense system, “Gideon’s Broken Promise: Massachusetts” (Feb. 2005) specifically noted as a problem in the Massachusetts system that:

“Although national standards recommend the use of public defender programs wherever the population and caseload are sufficient to support such organizations, in many areas of Massachusetts, there is almost complete reliance on private assigned counsel, especially in misdemeanor and juvenile delinquency cases.”

Despite this statement, bar advocate spokespersons continuously say that the ABA Gideon Report praised the Massachusetss system. [See., e.g., quote from MACAA press secretary Nancy McLean, to the Lowell Sun Times.] The Gideon Report actually praised the “approach” used in Massachusetts of training the assigned counsel and monitoring them. The Report stated that the basis for their conclusion was the testimony of one witness — Bill Leahy, who is in charge of CPSC, the agency that oversees the bar advocate system, and has the task of training and monitoring the assigned counsel. [See fn. 401 of the full Gideon Report.]


The Massachusets Study Commission noted that when the system was originally set up:

“The idea was that representing indigent persons would allow private attorneys to supplement their income while simultaneously building a private practice.35   Moreover, as noted in Lavallee, the work voluntarily undertaken by private attorneys willing to accept CPCS cases is in the nature of public service because the source of compensation is the ‘limited public treasury’.36

“There has been, however, a gradual yet persistent movement away from that original intent, as an ever increasing number of private attorneys derive all or a significant part of their income from CPCS cases. As more and more private attorneys have come to rely almost exclusively on CPCS cases for their livelihood it is understandable how this group has come to feel underpaid for their services. Such feelings, however, overlook the fact that the hourly rates paid to CPCS private attorneys were never intended to be sufficient to sustain a private practice.”

As MyShingle‘s Carolyn Elefant recently explained, responding to bar advocate opposition to a cap of 1400 hours per year per panel member, Court Appointed Work Is Not Supposed To Be A Full Time Job! (July 23, 2005).  I also agree with her Comment at the Andrew Winters Blawg, that — when using an assigned counsel panel as part of the indigent defense system — we can expect better attention to indigent cases from lawyers with self-sustaining law practices who take indigent work out of a sense of public service, and from less experienced lawyers who take the cases to gain valuable experience.  When assigned counsel spend the vast majority of their time on indigent work, but are still attempting to find more lucrative private clients, they will surely give the private client special attention.


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