Judges in Hampden County have begun ordering private defense lawyers to represent indigent clients to ease a shortage of attorneys as a result of a fierce pay dispute...
In addition, William W. Teahan Jr., the chief administrative judge for the five district courts in the county, said in a letter to Bonavita that he will soon begin assigning lawyers to cases to ease the crisis.
"The attorneys' consent is not sought under present emergency circumstances," he wrote.
Citing the state Supreme Judicial Court's rules of professional conduct, Teahan said that lawyers must take appointments except for "good cause."
Exceptions include cases that would probably result in a violation of the law or court rules, that would pose an ''unreasonable financial burden" on the lawyer, or that would be repugnant to the lawyer...
...The reason lawyers have refused to take cases, he said, is because current pay rates have created a financial burden.
Wait! It gets juicier:
The private attorneys, known as "bar advocates," assist the state's public defender agency in representing poor defendants. But many have refused to take cases over the past few months because they say they can no longer afford to work at the the state's pay rate of $30 per hour.
The pay dispute has resulted in a shortage of bar advocates to represent poor defendants.
Ruling in two lawsuits filed over the lawyer shortage, the state's Supreme Judicial Court said last month that defendants cannot be held more than seven days without a lawyer and charges must be dropped against defendants who have not been represented by a lawyer for more than 45 days.
Earlier this week, a Superior Court judge in Hampden County freed three defendants facing drug charges on bail, resulting in an outcry from Gov. Mitt Romney, State Attorney General Thomas Reilly and local law enforcement officials.
So we're not even talking about pro bono work -- defendants have actually gone free because lawyers balked at $30 / hour. Now, they’re up in arms for being forced to provide this constitutional right.
There's some well-deserved schadenfreude amongst blogging doctors -- "at last, lawyers are forced to serve the indigent! Welcome to our world!" The next set of comments may also sound familiar: Will there be an exodus of lawyers from the county? Will the government step in and regulate how many billable hours can be claimed? Indeed, comparing the lot of primary care doctors and trial lawyers reveals many of similarities, and some key differences.
The roles of both physicians and attorneys are important enough to be mandated by law: As QDN states, medical providers must provide emergency assistance to anyone who requests it, regardless of their ability to pay. And the Miranda rights, a staple of the cop shows everywhere, famously states "If you cannot afford an attorney, one will be appointed for you."
But the similarities end there. Miranda assumes from the get-go that 1) legal representation is really important and 2) the more you can pay, the better your representation will be (why else would you pay for something that's offered free?)
Medicine resists the notion that one's finances lead to better care. Though progressives may assert that American healthcare is two-tiered, they'd be hard-pressed to admit inequality as codified in the medical culture compared to the legal world. In fact, all primary care doctors are providing the equivalent of public defense, every time they see a Medicare or Medicaid patient. For many, this is a huge fraction of their patient pool, and doesn’t even count the charity cases I’ve observed my preceptors take on.
The only primary care physicians that remotely resemble expensive trial lawyers are the practioners of nascent "Concierge Medicine" (also called retainer or boutique medicine). These doctors transition from a practice of 1000-2000 patients to just a few hundred. Their patients pay a straight-up annual fee, in the ballpark of thousands of dollars, and many continue pay for labs and meds, as well. For this, they get unlimited access to their doctors, 24 hours a day. Rich patients like the access, and doctors like the opportunity to spend more time with each patient. And, the money seems nice, too. But even concierge physicians promise that their patient are simply paying for access and face time, and (technically) not an increased level of medical care.
But such pay schemes, and the entire notion of doctors setting their own fees for service, is controversial. Last year, my school had a seminar on Concierge Medicine (also called retainer or "boutique" medicine), where a mostly one-sided panel of experts argued that more time with patients by itself is better care: more time for doctors to listen to symptoms, negotiate treatment plans, and educate patients should lead to better outcomes. It sounds reasonable, although unproven. The panel advocated working to make default primary care medicine so good that no patient would feel like visiting boutique doctors. Well, that's inspiring egalitarianism, but it doesn’t hold up to the marketplace demands of shorter visits, smaller reimbursements, and increasing insurance costs.
I wonder if the same thing happen at law school -- are the students encouraged to make public defending so effective, Johnny Cochrane can't compete? I doubt it, but maybe my law-school reader(s) can chime in.
For all the institutionalized altruism in medicine, for all the provisions for indigent care, few believe American health delivery is in good shape. Studies show that the average outpatient medical encounter is now just 6 minutes. It’s not going to get longer without a financial overhaul, and it can’t get much shorter without adverse health consequences.
On the other hand, there are more than enough lawyers to go around (with the aforementioned exception of Hampden County). While it’s a given that patients lack appropriate access to doctors, it’s front-page news when defendants lack access to attorneys. The public-defender situation in Massachusetts is a good opportunity to ask: should we smirk when trial lawyers are occasionally forced to work at government-set rates? Or should we wonder why primary care doctors have been doing so all along?
Typed and cross-posted at the Lingual Nerve