Public Counsel Services in Massachusetts: An Update From CPCS Chief Counsel Anthony Benedetti

Anthony Benedetti Update Interview

Recorded April 2023

Don: Anthony Benedetti, welcome back to Higher Callings. How are you?

Anthony: I am well, Don. Thank you. And thank you for asking me to speak with you today.

Don: Thanks for making yourself available on relatively short notice. As you know, Anthony I recently interviewed Margot Botsford and Denise Murphy about issues regarding lawyer well-being and their work on the SJC Steering Committee on Lawyer Well-Being and now the Standing Committee on Lawyer Well-Being and I published that. And a few minutes of it was focused on the work of CPCS.

So I wanted to come back to you because some of the information that I discussed with them was pretty dated. We were looking at a 2019 report of the SJC steering committee. And I thought I would go back to the source and find out what's changed since then. Get an update on what CPCS is doing now on how both the staff attorneys and private attorneys are doing, what the recruitment efforts are like. So, I just wanted to touch back with you on those issues.

So why don't we start there, and then I know there's a lot more we can talk about as well. I know you've had a chance to listen to that interview, the older information that we were looking at. But what's going on today? How have things changed in the last four years, let's say?

Anthony: Sure, sure. And thank you again. I appreciate the opportunity to come and talk about some of the positive things that are happening at CPCS.

I'll start with on the staff side. We've made some real progress on the salary front,thanks to the generosity of the legislature who continue to support indigent defense in Massachusetts. And I say that as someone who regularly communicates with people around the country who are involved in indigent defense. And it is no exaggeration to say that Massachusetts is one of the most successful programs and that is due in large part to the support we get consistently from the legislature.

With our salaries, there has been incredible progress. A number of years ago, maybe six or seven, or if I'm just talking about attorneys, our starting salary was $48,000. Currently, the starting salary is at $68,000. So you can see, although still not reflective of the important work our attorneys do, real progress is being made and we definitely can see the result in our recruitment efforts. We're in the ballgame, so to speak, with the students who might not have even looked at us and went to look at other programs. Definitely seeing in retention efforts.

And just to be clear, that doesn't mean we don't have people leaving to make more money. But it’s not the type of issue that we are hearing consistently like we used to. Leaving for more pay used to be the number one reason people would leave and it may still be mentioned, but it's not at the top anymore.

And so, that has really helped.

Don: I'm really glad to hear about all that improvement. And of course, what we're talking about right now is the staff attorney. So these are people who are employed by CPCS full time as attorneys. And then there's that other component of your staffing, which is the private bar. And I know one thing we were talking about in that other interview, we were looking at what the hourly rates had been back in 2019 which were, to me at least as somebody who's always been in the private sector, shockingly low. But I understand there's been some progress with those rates as well in the last four years.

So where is that today? How do the rates today for the private lawyers who take cases from CPCS and are not staff attorneys at CPCS -- and I understand those to be actually the majority of the lawyers who do work for CPCS clients -- how have those changed? How have those improved over the years since 2019.

Anthony: Well, that is another area where we've made progress, although they are still not reflective of the important work the private bar does. And my guess is you will still find them to be incredibly low compared to what you are used to. But the last two years we've been able to secure increases in all of our rates. And to highlight some of the examples, back in July of 2020, a District Court case paid $53 an hour. That is now at $65 an hour. A Superior Court case was $68 an hour. That is now $85 an hour. A murder case was $100 an hour. That has gone up to $120 an hour. A care and protection case in our Children and Family Law Unit, that was $55 an hour. That has gone up to $85 an hour.

So you see that, on a per hour basis, there has been real progress. And our message to the legislature in the current budget advocacy that we're undergoing for the Fiscal Year ‘25 budget is to continue to make progress. That if we can get a third year of increases, now we're able to use that in our messaging to potential panel members, people who are trying to get to join our panels and take cases, but also to the people who are already taking cases and trying to get them to take more cases. You know, that the legislature has for three years increased these rates and is invested in this program and sees the value of the work they're doing. So we're hopeful that we will get another bump, but we definitely have made progress over the last couple of years.

Don: That's great.

Well, Anthony, it sounds like there's been progress then both in terms of pay for staff attorneys and for private attorneys that work on CPCS matters. It sounds like great progress, and I know more progress is needed.

But one point that came out when I interviewed Margo Botsford and Denise Murphy, and we talked about CPCS, Denise pointed out that it's not all about the money for the attorneys. That these people are really passionate about what they do. They believe in what they do because it is so important to be able to give very good defense and access to justice to people who find themselves in the criminal justice system and who don't have the means to hire counsel. That's one aspect of it that I thought was very important and I'm glad that she mentioned it during the interview.

And I'm glad to hear that the pay has gone up. I hope it will continue to go up because I think it needs to, probably on both sides, the staff and the private bar sides. But there are some other issues I was curious about that did get mentioned in that other episode, and that is how the pay of staff attorneys at CPCS compares with the pay of assistant district attorneys on the prosecution side.

My perception has been that at times there has been tension about that number in terms of submitting budget proposals to the legislature, and, involving bar associations, and trying to support both sides in getting more money out of the legislature, because both sides are very important to our system of justice. But I want to make sure we have current information out there and accurate information out there.

So how does the pay compare? Somebody who's a staff attorney at CPCS and somebody basically at the same level who's an assistant district attorney. Does one make more than the other? Are they roughly comparable?What's the story there?

Anthony: Yeah, Don, that's a great question We have different pay structures than the district attorneys. We have salary scales for all of our professionals at CPCS. And what I mean by that is, you know what you're going to make, depending upon your level of experience and the number of years you're in the job. And if you are in the job six years, ten years, twelve years, you can go to the salary scales and know what you are going to get paid, subject to appropriation. Obviously, everything we do is subject to appropriation.

But I think the easiest comparison point has always been the starting salary. And for the last few years, we have been at the same level as the assistant district attorneys. Both of us have benefited from the legislature, who has agreed with our argument that our attorneys should be paid as close if not the same as possible as attorneys that are in the executive branch.

And so what that has meant is we've been able to get the starting salary up to $68,000, which I mentioned. And that's where the assistant district attorneys have been as well. This past year, the assistant district attorneys agreed across the board to increase their starting salary to $72,500 so we've fallen a little bit behind them and so that's something that we are talking to the legislature about because we want to be equal to where they are.

In terms of all of our other professionals, what we try to do is look at comparison points with similar jobs in the executive branch, we look to the private sector where appropriate and try to get people as high as possible within their respective field. And I'm talking about our social workers, our investigators, our administrative professionals.

That’s something we're always messaging as well is, all of those particular jobs are critical to the success of our team in representing clients in all of our practice areas. And so we're always trying to increase their salaries so that we're not losing people to other state agencies, so that we're not losing people in the private sector, that we're able to recruit the strong candidates. That is something that we are struggling with, even though we've made progress with our salaries. And I'm talking more about our non-attorneys. We are losing people a little bit more than we used to, and we'll go through an interview process, and then once the salary comes up, we lose candidates.

But again, we've made progress. We need to make more progress. But in terms of the district attorneys, we, at least over the last few years, have been pretty much in the same place, at least for starting attorneys.

Don: And I have a couple of questions about the private bar lawyers. One is, I was under the misimpression, I think, that most, if not all, of the private bar lawyers who take cases from CPCS are only doing CPCS cases, that they don't have practices of their own to supplement whatever they receive from handling public defense matters. But I understand my impression of that was probably not true for a lot of the private bar. Can you clarify that a little bit too?

Anthony: Sure. We have about twenty-five, twenty-six hundred attorneys who bill us annually. And I'm talking about attorneys who practice in any number of our particular practice areas, and the main four are adult criminal, delinquency, children and family law, and mental health. Some people are on one panel, some people are on multiple panels. But the billing ranges from people who dabble in the work and it's their intent to give back by taking these indigent defense cases and representing clients.

And then on the other end are people who mostly do it full time. The average attorney probably bills about 800 hours. Our maximum number of hours that attorneys can bill is anywhere from 1650 to 2000. The legislature gives me the ability to increase the annual billing cap when there is a need for attorneys. And I've done that this year, so the billing cap is at 2000. Most people are billing around eight or nine hundred.

Don: Just to be really clear, the numbers you're throwing out are hours.

Anthony: Exactly. And so most attorneys are doing this work as part of their practice, not making it 100 percent of their practice.

But to be clear, we have no problem with people who want to do it as 100 percent of their practice. It's more about the quality of representation, as long as they're billing appropriately. Either way it's fine.

Don: It's pretty common in private practice, let's say on the civil side, but also on the criminal side, just people in private practice, generally, to be able to bill their clients, or the payors who compensate them, for travel time, for time waiting in the courtroom before a matter is called, that type of thing. Sometimes the rates may vary, some insurance companies may pay less for the travel and waiting time than they do for other time, but they still get paid most often, I think. What's that like for CPCS attorneys in the private bar? Do they get to bill for travel and waiting time as well?

Anthony: Yes. Yes, they do. With waiting time, they can bill up to two hours per individual client with a maximum number of hours per day at three. In terms of travel, they're compensated for their travel time and their mileage. The mileage is set at 45 cents a mile, which is pretty consistent across state government. The number of hours they can bill is limited to one hour for every 30 miles. And so there are some restrictions and without a doubt, sometimes people aren't reimbursed 100 percent for travel time, but they are compensated for most of it, I think probably is the best way to describe it. If the travel time is less than 30 miles, generally you're not reimbursed. And the thinking is that you are supposed to have an office in the county where you practice. And the thinking is that you, your office is going to be close to the court that you practice in.

And then there's a wide range of other categories that they are reimbursed for, such as legal research, other billing categories.

Don: And what kind of training and support do attorneys get? Training, supervision, oversight support? I'm sure there's a lot that goes to the staff attorneys, but what about the private attorneys as well?

Anthony: Well, you're talking, with the staff, you're obviously in an office and the resources are definitely better just because it's more practical because of the numbers. With the private bar, there's so many more. It clearly isn't going to be the same as the staff. But that being said, we have invested in recent years in the private bar and trying to provide more support so that people feel like they have an organization that is doing everything it can to help them be as good an attorney as they can be for our clients.

One example, this doesn't get really to training per se, but every staff office has at least one social worker and we have social work vendors that are available for the private bar. And so, what we did a number of years ago, I think maybe three years, is we created a position that was focused on recruiting more social workers to the panel and then providing training to help attorneys understand how social workers could benefit them in their individual cases and how to use social workers effectively or to the benefit of their clients. And that is an area where we've seen quite a bit of success. And so that's sort of an example of, well, we can't, you're not in an office, you obviously don't have a social worker in the office, but we've created a system where there are more resources in that area for private attorneys to access.

Don: Great. So I know that this year, I believe, was the 60th anniversary of Gideon versus Wainwright. Am I right about that?

Anthony: That is correct.

Don: Okay.

Anthony: With next year being an anniversary of CPCS, which was created in 1984. So we'll be planning an anniversary event for next year in 2024.

Don: That's terrific. I hope I get an invitation to that, by the way, Anthony.

Anthony: Yes, definitely. As someone who has expressed an interest, an ongoing interest, in being supportive of the work we do, definitely.

Don: Yeah, no, I'm very interested. So let me just ask you, it seems like a timely question to ask on this auspicious occasion. What's going on now? What's new at CPCS? What are some of the initiatives you're involved in? What are some of the exciting things that are happening?

Anthony: Well, you mentioned that when you were talking about the salaries that people come to work for CPCS, people become part of the panel because they are passionate about working with people who are caught up in the various systems in which we represent people. One of the things that we have done as part of the 60th anniversary of Gideon is we've had four panels at four area law schools, in part to recognize and acknowledge the anniversary of Gideon, but also get out there at the law schools and as part of our recruitment efforts, talk about the great work that we do, talk about the program and why it is so much better than so many other states, and talk about some of the things we're doing to make it a better place to work or to make being a member of the panel better.

And so, what I mean by that is, let's start with the staff. We've been paying a lot of attention to wellness. And originally when we were able to bump the salaries up quite a bit, I followed up with an email to staff saying, "We know that it's not all about the money and we want to make this as good a place to work as possible. So tell us what you think we should focus on." And we got some great responses, and we acted on those responses where we had the ability to make a difference.

And so, more recently, we did a second survey to get the temperature of our staff and to get a sense of what should we be paying attention to? What do we need to do better? What are your concerns? We're about to undergo strategic planning to talk about what should the agency look like in three to five years. And as part of that, we got a lot of feedback from the staff and members of the private bar. Again: Where are the areas where you think we need to try and do better?" Not only for our clients, which, of course, is a major focus, but also to make it a better place to work.

On the private side, one thing that we are doing is we're trying to make improvements in the billing process. We're making improvements in the onboarding process. Anything that we can do to make the experience easier, more seamless, we're trying to do. And so, again, recognizing that of course money matters. People need to pay their bills. They need to cover their overhead costs. But also important is to pay attention to issues like work-life balance.

Coming out of the pandemic, we have adopted a more flexible hybrid policy for staff, recognizing that people did pretty well working from home. And so we want to be more flexible. Depending upon the particular job, we might be even more flexible. Obviously if you're an attorney, you need to go to court, you can't work from home. But if you're in IT, if you're in finance, there's not necessarily a need for you to be in as often as an attorney. And so we're recognizing that. And I think that is, well, it's necessary in terms of where we are right now as a society, but it's definitely been helpful in terms of recruiting new staff.

So those are some of the things that we're paying attention to, is our work with clients, but also trying to make CPCS a place where people want to come and work, a place where it's a bit more attractive to be a member of the private bar panel.

Don: I know you've also been working on diversity matters and racial and cultural competency.

Anthony: Yes.

Don: What are you doing in those areas?

Anthony: We are focusing on our offices, our organization, trying to address those issues so that CPCS is a welcoming place to work. We've done training around microaggressions in addition to training around implicit bias and just issues around diversity, equity, and inclusion generally.

We are obviously trying to recruit a much more diverse staff. We created, I mentioned, we created a position for recruitment on the staff side, and that is without a doubt a priority of that individual to help us to recruit more diverse members of the bar and diversity in all of our professions.

We're also looking at the areas in which our attorneys and our other professionals do their work and coming up with strategies on how we address when our black or brown attorneys go into a courtroom and they are mistaken for a client, or someone who's in a place where they're not supposed to be when they have every right to be there as an attorney. And we've had a number of conversations with the courts and others about those problems because quite frankly, unless you address them and do so in a productive manner and hopefully a teaching moment, it's not going to change. But it's probably no surprise to you, Don, that I still hear far too regularly attorneys who go into a courtroom and are asked, "Who are you? Why are you here? You're not supposed to be here. This is for attorneys." And that has got to change.

And we're also tackling these issues as it relates to our clients. And what I mean by that is doing a lot of training around how attorneys can litigate race in individual cases. That is something that we're paying much more attention to and trying to provide the tools to the attorney so that when those issues emerge, they are ready to bring it up and make a case that the judge needs to address it.

And all of that is in addition to the work we have been doing for a number of years around policy change, legislation, those are areas in which we engage where we bring up all of the different racial disparities that exist at every step of the way, again, in the various systems in which our clients operate, whether it's adult criminal, delinquency, mental health, care and protection. So trying to bring some real systemic change.

We've got a lot more to do, but I really feel like we are doing a lot in a number of different areas.

Don: That's great. I'm really glad to hear that. And let me just ask you, as you look ahead, and I think you said you're starting your strategic planning process, so maybe I'm catching you at an early point in that process. But as you look ahead over the next few years, what do you see as the biggest challenges and the biggest opportunities for CPCS and for lawyers who want to provide public defense services to defendants and other clients that need help.

Anthony: Sure. It's funny. I've been having a number of conversations in which I have said, if I were asked what is the biggest problem that I see on the horizon, this is what I would say. And so now I've been asked that question.

Don: Yeah. And I just want everybody to know you didn't plant that. I came up with that myself.

Anthony: No, I did not, but it is as simple as finding enough people who want to do this work. It is a national problem where programs around the country, and I'm not even talking about places which need to provide counsel in rural areas and in the middle of the country. I'm talking about programs like ours, like Wisconsin, which traditionally had a strong program, Colorado, struggling to fill jobs and getting enough attorneys that are necessary to do the work. And that's something that we are struggling with in Massachusetts.

We're not necessarily having those problems in the eastern part of the state. But I will say something that has emerged or at least has come to my attention much more so in the last couple of years is, we used to always have people who wanted to go to our Boston office, our Roxbury office, and that now has changed a bit because people can't find places to live in those areas that they can afford.

Don: It's very expensive. Yeah, it's very expensive.

Anthony: Exactly. And that is really troubling. So now people are more interested in going to Lowell or Lawrence. But in terms of where the bigger problem is in western Massachusetts, that's something that has been a problem for the last few years. There just simply aren't enough people who want to do the work. We struggle with some hiring for staff. We don't have enough people on the private side. So that's really the biggest problem.

Law school admissions have been down. Anecdotally, at least you talk to people who are at law schools and you hear that fewer people want to go into social justice law. They're much more interested in transactional law, business, IP. Although they say that, we're seeing this with our hires, the people who are doing social justice law are as strong if not stronger than ever, there are just fewer of them. And so that's something that is a problem that we're trying to figure out how to tackle.

And I mentioned our increased focus on recruitment creating a position for someone to help us recruit for the private bar in addition to recruiting on the staff side. To go into, not just law schools, but to come up with strategies on how to talk to kids who are in undergrad and even reach into the high schools about what we do and why it's so important and why people should consider a potential career in these areas.

Something else that we're doing, that could help us on the private side -- it's already been successful for some of our staff, with the attorneys on the staff side -- is loan forgiveness. If you are a government employee and you work for the government for 10 years, you have the ability to get your loans forgiven. We have been working with the Supreme Judicial Court Wellness Committee to get the private bar included in that program. And what that means is independent contractors would be covered. And so if you're a bar advocate, and you bill a certain number of hours per year, and so the way we're thinking of it is attorneys who do it, maybe not 100%, but an overwhelming majority of their practice, and to do the work for 10 years, they could have their loans forgiven.

So if that happens, that could potentially be a game changer. Now we're going to talk to people who might be interested in being part of the panel: "You could get loan forgiveness if you do this work." That would help with recruiting new people to the panel, but it would also help us to, in our conversations with people who do it as part of their practice, who now might be willing to do many more hours and take on many more cases because now they know if I do x number of hours per year and I do it for 10 years, I could get my loans forgiven.

So those are some of the things we're doing to tackle what I think is one of the biggest problems. The other one is figuring out how to deal with all of the technology, as you know, that has essentially exploded in terms of discovery. What I mean by that is we have attorneys who are spending hours going through videos, going through audio recordings. We’re looking at, do we need to increase our staffing of paralegals, people who can spend the time doing that type of work while attorneys do other things on cases. But in addition to the dramatic increase in the time needed to examine all of that discovery, it's figuring out, it comes to attorneys in a number of different ways, different platforms.

So when you think about it, you have body cams that the police wear, you have public cameras, you have cameras that are in 7-Elevens. And so, it comes at us in a number of different ways, and there are real challenges sometimes in trying to access it. That's an area where we really need to figure out how we, getting the resources to invest, but then figuring out what's the best way to invest.

The other piece connected with that is not just accessing it, but sort of manipulating it so that you can use it. What I mean by that is you may have eight hours of an audio recording and you want to figure out how do I pull out the piece that I need, whether it's for cross-examination or whether it's for presenting to a judge or jury. That's not so easy if you're not familiar with it. Giving people the tools to be able to do that and to do it efficiently and effectively. It may be as easy as hiring staff in every office who are experts in that area who can sort of work with it quickly and easily, something that I certainly can't do, and be there with the attorney so when it's time to present that evidence, it can be done in a way that's going to be helpful for the client

Don: That can be outsourced, right? But it's very expensive to outsource that kind of work.

Anthony: Right. And that's what's happening now in some instances where attorneys are hiring an expert to do that, but as it increases, as it becomes more common, certainly you're going to see it right now more in places like Suffolk County than maybe Pittsfield, on the western part of the state, but, as we move forward, you're going to just see more and more of this technology. Right now, if we're not outsourcing it, you have attorneys going to younger people in the office who are much more familiar with technology and asking them for help and that's doable in the short term, but it's not something that's sustainable. And so that is something that is a big challenge on the horizon.

Don: Well, that's a really interesting area and one that's worth keeping an eye on, I think, for anybody interested in the areas that you practice in.

So let me just ask you this, just to wrap up. For people who want more information, I know last time you were on the podcast we talked about your website, which, as I recall, is publiccounsel.net, which is a good source of information for people interested in the work that CPCS does. Is there anything else that you would recommend for people to look at to learn more about some of these issues that we've been discussing and about public defense in general?

Anthony: I think the website is a good place to start. Admittedly, it is a little long in the tooth and it's something that we're investing in to make it more a place where people can go to get information easily accessible. It's very clunky now. And so, it's not the best website, no doubt about it, but there is a lot there about the work that we do.

And if people are interested in potentially becoming an attorney for CPCS or becoming a member of the private bar and taking cases it really is helpful to reach out to people who are doing the work already, to engage in informational interviews, to learn about the work, learn about the challenges, learn about the rewards. And you're going to get from people: Here are the kinds of things you want to be thinking about, the kinds of things you want to be doing as you think about your career, what you should be doing in law school, what kind of internships you want to engage in, how do you get experience working with people who are caught up in these systems.

I think talking to people who are doing this work is really, at least for people who want to do it or are in school and are thinking about doing it, that really is the best way to learn about it and discover whether or not it's something you really want to do. Because it's not for everybody. It's incredibly difficult and challenging work. It can be really upsetting when you see what the system does to people, on a daily basis. And without a doubt, secondary trauma is something that we are aware of and that we try to address with all of our staff, and to educate not just the staff, but the private bar, that it's something they should be aware of, that it's real.

But that being said, it is incredibly rewarding work. To be able to work with someone, to stand with someone, when they are facing the awesome power of the state, and help them to be heard, help them to tell their story, make sure that the system recognizes their humanity. So, if that sounds great, come and work for us.

Don: Anthony, thank you so much. I am glad we had the opportunity to get this update from you. It's always going to be important work that CPCS does. I appreciate all the time and effort you and your fellow attorneys, staff attorneys and private attorneys, and your non-attorney staff do at CPCS. I wish more people knew more about it because it's a great story you have to tell and it's really just such important work for people who care about justice and care about democracy. So, thank you.

Anthony: Thank you, Don. Thank you for helping us to spread the message about the work we're doing. I appreciate that.

Don: Happy to do that. Happy to do that. You take care now.