Finding balance for competing needs

Issue October 2004 By Kathleen M. O'Donnell

Every bar association leader begins her tenure with a list of goals she would like to accomplish and programs she would like to initiate. More often than not, however, outside forces intervene and an issue of public importance overtakes personal preferences.

In the last few years, the MBA, the judiciary, the legislature and the public debated the civil rights of same sex couples. Our Supreme Judicial Court courageously restated that all citizens must be treated equally.

On July 28, 2004, our highest court once again upheld the sanctity of the United States Constitution and the Massachusetts Declaration of Rights, Lavallee vs. Justices in the Hampden Superior Court and Others, 442 Mass. 228 (2004), in stating:


Because a defendant's liberty, a fundamental right, is at stake at a bail hearing, the principles of procedural due process in Art. 12 of the Massachusetts Declaration of Rights are implicated. They include the right to be heard, which necessarily includes the right to be heard by counsel. See, Commonwealth v. Torres, 441 Mass. 499, 501-502 (2004) Id. at 234.

This constitutional guarantee of the assistance of counsel "cannot be satisfied by mere formal appointment." Avery v. Alabama, 308 U.S. 444, 446 (1940). "An accused is entitled to be assisted by an attorney whether retained or appointed, who plays the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S. 668, 685 (1984). The right to counsel means the right to effective assistance of counsel. See, Kimmelman v. Morrison, 477 U.S. 365, 377 (1986). Id. at 235.

In view of the importance of prompt pretrial investigation and preparation, and the serious likelihood that without the assistance of counsel decisions that are themselves critical stages are not being made, the petitioners currently are being deprived of counsel to an extent that raises serious concerns about whether they will ultimately receive the effective assistance of trial counsel. Id. at 239.

We therefore must address the ongoing harm to indigent criminal defendants who are still deprived of counsel. The duty to provide such counsel falls squarely on government, and the burden of a systemic lapse is not to be borne by defendants. Our duty is to remedy an ongoing violation of a fundamental constitutional right to counsel consistently with the government's legitimate right to protect the public's safety. Id. 246.


It is this delicate balance of the individual's constitutional right to counsel and the need to protect public safety that presents all parties involved - the police, the district attorney, the judiciary, the bar, the executive branch, the legislative branch and the public - with what is perceived by many to be an insurmountable challenge. The MBA will dedicate any time and resources necessary to assist in trying to balance these competing needs.

In this moment of crisis, there is no time for and there should be no tolerance for rhetoric designed to inflame the public and to shift the blame for this crisis onto the dedicated public defenders who have been faced with a Hobson's choice of continuing to represent indigent individuals charged with crimes or to support their families. Bar advocates have been paid essentially the same hourly rate since 1986. Id. at 230. Prior to July 31, bar advocate pay rates in Massachusetts were the third lowest in the country. After the increase to $37.50 per hour and $46.50 per hour, Massachusetts still ranks fifth lowest in the country. With an average cost of $67 per hour to cover the overhead associated with running a small law practice (Bruce W. Neckers, It's A Crime, Michigan Bar Journal, 8 (January, 2002)), it is unquestionably not in a lawyer's financial interest to accept work as a bar advocate.

The focus of this debate cannot and should not be on the financial decisions made by individual bar advocates to no longer participate in this voluntary program. Rather the focus must be on our government's constitutional obligation to provide legal counsel to indigent individuals charged with a crime. How to design or redesign a system that will enable the commonwealth to meet its constitutional obligation is a challenge. How to pay for such a system is even more of a challenge. While the financial burden imposed on the commonwealth will be significant, there is no doubt this financial challenge will somehow be met. In the universe of issues facing our legislators at the state and the federal level, any financial issue can somehow be resolved.