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Budget Recommendations
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Outside Section 259
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CPCS Reform - Retainer Based Defined Compensation
SECTION 259.
Said chapter 211D, as so appearing, is hereby amended by inserting after section 6A the following new sections:-
Section 6B. Bar advocates and attorneys assigned by the private counsel division of the committee for public counsel shall be compensated by retainer-based defined compensation in accordance with section 6C, except where all members of the committee certify in writing that the assigned case presents unusual and extraordinary circumstances that require additional legal services adequately to safeguard the constitutional rights of the person represented. In such unusual and extraordinary circumstances, in addition to the retainer-based defined compensation in accordance with section 6C, bar advocates and private attorneys shall be compensated $45 hourly for legal services before trial and $60 hourly for legal services at trial in all court departments except the superior court and $60 hourly for legal services before trial and $90 hourly for legal services at trial in the superior court department.
Section 6C. Notwithstanding the provisions of any general or special law to the contrary, on July 1 of each fiscal year, all bar advocates and attorneys assigned by the private counsel division (collectively referred to as "private counsel") shall be paid a retainer of $10,000. All attorneys who become private counsel during the fiscal year shall be paid a retainer of $10,000 upon their qualification as private counsel. Said retainer shall be deposited into each private counsel's Interest on Lawyer Trust Account governed by Rule 1.15 of the Massachusetts Rules of Professional Conduct, herein referred to as an IOLTA account, and be withdrawn as monies are earned in accordance with section 6D. When the amount of the retainer balance is $1,000 or less, the private counsel shall notify the committee in writing and shall receive an additional retainer of $10,000 within 30 days. On June 30 of each fiscal year, unearned retainers shall be returned to the committee. All interest accrued on such retainers in each private counsel's IOLTA account shall be remitted to the committee on the last day of each month or on such schedule as otherwise determined appropriate by the committee. The committee shall undertake enforcement of this section with the board of bar overseers as well as institute civil proceedings to recover any unearned retainer or interest accrual that is not returned by participating attorneys.
Section 6D. Private counsel may submit written invoices to the committee and earn funds from their retainers in accordance with the following schedule of defined compensation:
(a) For criminal or delinquency cases in district, juvenile, housing and probate and family court departments, excluding youthful offender cases in the juvenile court: (i) a total of $30 for all of the following events in each assigned case: bail only appearances, probation detention hearing, bail revocation hearing, competency or responsibility hearing at arraignment, and limited appearances prior to or at arraignment. A copy of the Notice of Assignment of Counsel form accompanied by an invoice describing the bail only or limited appearance shall be sufficient proof of such services for purposes of payment; (ii) a total of $175 for pretrial representation, including any arraignment, pretrial conference, pretrial hearing, discovery-related motions, compliance/election events, probable cause hearing, trial assignment date, continuances, motions and affidavits where no brief is required under the Massachusetts Rules of Criminal Procedure, and non-contested motions. No fee shall be paid to private counsel where the assigned case is reassigned after arraignment by the committee to avoid disproportionate assignment of cases involving felonies or minimum mandatory incarceration, unless the assigned private counsel objects to the reassignment of the case. A copy of the Notice of Assignment of Counsel form accompanied by an invoice describing the court events for which legal services were rendered shall be sufficient proof of such services for purposes of payment; (iii) up to $200 for motions for which a brief or evidentiary hearing is required under the Massachusetts Rules of Criminal Procedure or ordered by a Justice, payable as follows: $50 upon the filing of the motion and brief; $50 upon any evidentiary hearing or argument; and $100 after hearing if the motion is allowed in whole or in part by the court. A copy of the motion and any brief filed accompanied by an invoice describing whether there was an evidentiary hearing or argument and a copy of the court's endorsement or order shall be sufficient proof of such services for purposes of payment; (iv) $100 for probation violation hearings, from notice to disposition, based on alleged violation of special conditions of probation or general conditions other than a new crime or, for alleged violation conditions regarding a new crime, where appointed counsel also is appointed in the underlying criminal case. A copy of the Notice of Assignment of Counsel form accompanied by the notice of probation revocation hearing and invoice describing the services rendered shall be sufficient proof of such services for purposes of payment; (v) $175 for probation violation hearings, from notice to disposition, based on alleged violation of general conditions of a new crime, except where appointed counsel also is appointed in the underlying criminal case. A copy of the Notice of Assignment of Counsel form accompanied by the notice of probation revocation hearing and invoice describing the services rendered shall be sufficient proof of such services for purposes of payment; and (vi) $60 per hour for time spent on trial commencing with empanelment in a jury case or direct examination of the first witness in a jury-waived case, but excluding waiting time and time spent during jury deliberation. A copy of the docket sheet indicating disposition after trial accompanied by an invoice describing the total hours spent on trial shall be sufficient proof of such services for purposes of payment.
(b) For criminal cases in the superior court department, including youthful offender cases in the juvenile court, excluding cases involving life felonies: (i) a total of $90 for all the following events in an assigned case: bail reviews and bail only appearances, probation detention hearing, bail revocation hearing, competency or responsibility hearing at arraignment, and limited appearances prior to or at arraignment. A copy of the Notice of Assignment of Counsel form accompanied by an invoice describing the bail only or limited appearance shall be sufficient proof of such services for purposes of payment; (ii) a total of $500 for pretrial representation, including any arraignment, pretrial conference, pretrial hearing, discovery-related motions, compliance/election events, probable cause hearing, trial assignment date, continuances, motions and affidavits where no brief is required under the Massachusetts Rules of Criminal Procedure, and non-contested motions. No fee shall be paid to private counsel where the assigned case is reassigned after arraignment by the committee for public counsel to avoid disproportionate assignment of cases involving minimum mandatory incarceration, unless the assigned private counsel objects to the reassignment of the case. A copy of the Notice of Assignment of Counsel form accompanied by an invoice describing the court events for which legal services were rendered shall be sufficient proof of such services for purposes of payment; (iii) up to $800 for motions for which a brief or evidentiary hearing is required under the Massachusetts Rules of Criminal Procedure or ordered by a Justice, payable as follows: $200 upon the filing of the motion and brief; $200 upon any evidentiary hearing or argument; and $400 after hearing if the motion is allowed in whole or in part by the court. A copy of the motion and any brief filed accompanied by an invoice describing whether there was an evidentiary hearing or argument and a copy of the court's endorsement or order shall be sufficient proof of such services for purposes of payment; (iv) $300 for probation revocation hearings, from notice to disposition, based on alleged violation of special conditions of probation or general conditions other than a new crime or, for alleged violation conditions regarding a new crime or, for alleged violation conditions regarding a new crime, where appointed counsel also is appointed in the underlying criminal case. A copy of the Notice of Assignment of Counsel form accompanied by the notice of probation revocation hearing and invoice describing the services rendered shall be sufficient proof of such services for purposes of payment; (v) $500 for probation revocation hearings, from notice to disposition, based on alleged violation of general conditions of a new crime, except where appointed counsel also is appointed in the underlying criminal case. A copy of the Notice of Assignment of Counsel form accompanied by the notice of probation revocation hearing and invoice describing the services rendered shall be sufficient proof of such services for purposes of payment; (vi) $90 per hour for time spent on trial commencing with empanelment in a jury case or direct examination of the first witness in a jury-waived case, but excluding waiting time or time spent during jury deliberation. A copy of the docket sheet indicating disposition after trial accompanied by an invoice describing the total hours spent on trial shall be sufficient proof of such services for purposes of payment. (c) For criminal cases in the superior court department, including youthful offender cases in the juvenile court, which involve life felonies: (i) $60 per hour for pretrial legal services and (ii) $90 per hour for legal services at trial, up to a total of $4,000. A majority of the committee must approve payments in excess of $4,000 up to $6,500 and every additional $2,500 thereafter. (d) For mental health proceedings in all departments of the trial court: (i) a total of $250 for civil commitment cases; (ii) a total of $300 for Rogers cases; (iii) a total of $350 for cases involving both civil commitment and Rogers proceedings; (iv) for cases involving sections 12 or 35 of chapter 123 of the General Laws, as appearing in the 2002 Official Edition, a total of $100 for cases in all departments of the trial court excluding the superior court department or a total of $300 for superior court cases. A copy of the Notice of Assignment of Counsel form accompanied by a copy of the docket sheet indicating the final disposition of the case and an invoice describing the services provided shall be sufficient proof of such services for purposes of payment. For all such proceedings, half of the payment shall be payable upon filing a copy of the Notice of Assignment of Counsel with the committee and the remaining half shall be payable after filing a copy of the docket sheet indicating the final disposition accompanied by an invoice describing the services provided.
(e) For sexually dangerous persons cases, $1,500. A copy of the Notice of Assignment of Counsel form and an invoice submitted to the committee shall be sufficient proof of such services for purposes of payment.
(f) For sex offender registry cases, $500. A copy of the Notice of Assignment of Counsel form and an invoice submitted to the committee shall be sufficient proof of such services for purposes of payment.
(g) For Care and Protection cases: (i) a total of $350 for legal services at the emergency hearing and 72-hour hearing. A copy of the Notice of Assignment of Counsel form accompanied by the court's order or endorsement and an invoice describing the services rendered shall be sufficient proof of such services for purposes of payment; (ii) a total of $350 for all pretrial legal services after the 72-hour hearing is completed, including discovery-related motions, and post-trial motion practice. Submission of any motions and briefs and the pretrial memorandum accompanied by an invoice describing the legal services provided shall be sufficient proof of such services for payment; (iii) $100 plus $45 per hour for time spent during contested motion hearings, excluding waiting time from the hourly payment. Submission of any invoice detailing the legal services provided and the hours spent in actual hearing accompanied by the motion and any brief filed shall be sufficient proof of such services for payment; (iv) $100 for each permanency hearing;. (v) $60 per hour for time spent in court on trial commencing with direct examination of the first witness, excluding waiting time from the hourly payment. A copy of the docket sheet indicating disposition after trial accompanied by an invoice describing the total hours spent on trial shall be sufficient proof of such services for purposes of payment.
(h) For Child in Need of Services Proceedings, $175. A copy of the Notice of Assignment of Counsel form and an invoice submitted to the committee shall be sufficient proof of such services for purposes of payment.
(i) For criminal appeals, excluding cases involving life felonies, $1800 payable as follows: (i) $600 upon appointment as appellate counsel; (ii) $600 upon filing of the appellate brief; and (iii) $600 at the conclusion of oral argument. A copy of the Notice of Assignment of Counsel form with an invoice, a copy of the appellate brief and a copy of the docket sheet indicating the date of oral argument shall be sufficient proof of such services for purposes of payment.
(j) For criminal appeals involving life felonies: (i) $60 per hour for pre-hearing legal services and (ii) $90 per hour for legal services at argument, up to a total of $4,000. A majority of the committee must approve payments in excess of $4,000 up to $6,500 and every additional $2,500 thereafter.
(k) For civil appeals, $2,100 payable as follows: (i) $700 upon appointment as appellate counsel; (ii) $700 upon filing of the appellate brief; and (iii) $700 at the conclusion of oral argument. A copy of the Notice of Assignment of Counsel form, a copy of the appellate brief and a copy of the docket sheet indicating the date of oral argument with an invoice submitted to the committee shall be sufficient proof of such services for purposes of payment.
(l) For all other legal services rendered not described in subparagraphs (a) through (k) above, $30 per hour.
The committee shall implement measures to recoup fees disbursed from private counsel who subsequently withdraw from an assignment after receiving payment for services, on a pro rata basis, at the discretion of the committee.
Section 6E. Private counsel may not earn any stated defined compensation more than once in the event of reappointment of the same client after default. The committee shall establish policies and procedures to assure that criminal complaints alleging felonies and crimes imposing minimum mandatory incarceration upon conviction are not disproportionately assigned among private counsel. Nothing in sections 6A through 6E shall reduce the private counsel's obligation to conform to professional standards required by the committee in section 9 or limit the committee from monitoring and evaluating the performance of private counsel pursuant to section 10, except the committee shall not prohibit private counsel from tendering a plea at arraignment where such plea results in a disposition of dismissal with or without costs, pretrial probation to be dismissed at a date certain, civil disposition or filing without a change in plea.
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