If you had a long-time client who failed to pay his bills on time year after year, and consistently leaving you with shortfalls, at some point, you’d simply stop taking his cases and search for more reliable clients instead. And if you constantly complained about the client to family and friends, eventually they’d likely lose sympathy and wonder why you allowed yourself to be treated like a door mat. Yet when the client – or more accurately, the entity responsible for the clients’ bills is the state of Massachusetts – and it delays payment to court-appointed lawyers year after year – and frankly, doesn’t pay all that well to begin with – we criticize only the state and not the lawyers who put up with this behavior.
Don’t get me wrong – the stories in this Boston Globe article about the impact of Massachusetts’ failure to pay its court appointed lawyers on time are heart-breaking. One solo, who is owed $6000, has two seven-year old twins, a special needs child at a school with private tuition. With payments on hold, he’s been skipping lunch while his wife, diagnosed with ovarian cancer has postponed her chemo treatments. Another solo who handles abuse and neglect cases is out of pocket $4000, seemingly not much money to many is struggling because she’s still paying off college loans and living on a limited budget to begin with.
Still, why I sympathize with these lawyers, when I read these stories, I can’t understand why they put up with it. So many lawyers keep coming back, year after year to feed at the always inadequate court-appointed trough instead of finding more lucrative cases which could at least subsidize the lower paid indigent representation.
The delayed payments for Massachusetts lawyers who handle indigent cases isn’t anything new. I covered this same story back in 2005. Since then, the rates for court-appointed work have increased – the pay now ranges from $53/hour for district court cases and $100/ an hour for homicide – but lawyers are also limited to 1650 hours/year. Thus, in a best case scenario, the maximum that court appointed lawyers can generate from an exclusive diet of court-appointed work is gross pay of $165,000. Knock off 25 percent for overhead (office, malpractice and health insurance), and you’re down to $125,000 before taxes – which isn’t the poverty line by any stretch, but it doesn’t leave much leeway either.
It wouldn’t take much for court appointed lawyers to boost their pay either. If a court appointed lawyer could replace one week (roughly 32 hours) of $100/hr work with $200/hour work (which is a relatively low hourly rate for a private attorney) that’s an extra $3200/months (or $2500 post-tax). Hardly insignificant. In this regard, private lawyers handling court appointed work have more options than teachers, police officers or other public servants – and for whom there would be public outrage if they were not paid on time. Sure, teachers can work summers and cops can work after-hours, but they still have to show up for their day jobs. By contrast, solo lawyers can start turning down court appointed work at any time to free up time for higher paying matters.
Unfortunately, even though most lawyers recognize that law practice is a business, that same mentality does not seem to have spread to court-appointed lawyers. One of the lawyers profiled laments that her abuse and neglect work is a “vocation” that doesn’t receive enough respect. True enough. But until that changes, she’s still going to earn just $53/hour.
Nor did the lawyers profiled seem well situated to generate more profitable business. Neither one had a significant online presence – no website, articles, social media presence or other materials to suggest that they actively market their practices.
I’m not suggesting that lawyers stop handling court-appointed work or that it isn’t important. To the contrary, the work is so important that we need to find ways to make it sustainable. But relying on an exclusive diet of court appointed work and a hope and prayer that the legislature will increase the pay and stop the delay isn’t the way to make court-appointed work sustainable. Instead, if lawyers take a strategic approach to court-appointed work and limit the number of lower-fee cases unless they can balance or subsidize them with more lucrative matters is the best way for court-appointed lawyers to survive when the next pay delay inevitably comes along.