To The Readers Of The Metropolitan Corporate Counsel:
Justice Under Pressure
Everywhere you look, the financial meltdown of 2008 has left its mark. European governments stagger under the weight of crushing debt. The United States deficit continues to soar while unemployment rates refuse to drop. The Massachusetts housing market recorded its lowest October sales in 20 years. Stock markets, although somewhat improved, remain well below their highs of just a few years ago.
The Massachusetts system of justice is not immune from financial distress and is particularly vulnerable. We see this vulnerability play out on several fronts.
The leaders on both sides of our criminal justice system are now engaged in a heated debate over the allocation of state tax dollars distributed to district attorneys' offices and to the Committee for Public Counsel Services. The district attorneys argue that CPCS has been given more than its fair share of available funds, that CPCS diverts too much of its budget to private bar advocates, and that more should be given to DAs to level the playing field. CPCS argues that it manages its funding efficiently, that the DAs receive funding from other sources, and that defending the indigent is sufficiently different from prosecuting them that the budgets of the two groups cannot fairly be compared. While there no doubt is merit to arguments advanced by both sides, it seems unlikely that this debate would take on such significance in a healthier economic climate.
Our judiciary also is reeling from the fiscal shortfall. The Trial Court remains shackled by a hiring freeze that it self-imposed two years ago. Attrition during that time has reduced staffing levels in some courts to as low as 55 percent. Virtually all of our already underpaid Trial Court judges have agreed to take unpaid furloughs in order to avoid layoffs of court staff. The court has undertaken other extraordinary measures to reduce costs and is running out of options. Without additional funding in near-term budgets, the administration of justice will be sorely strained.
No group has been harder hit than the organizations that provide legal services to the poor. Massachusetts legal services organizations, such as Greater Boston Legal Services, depend on funding from three principal sources: IOLTA funds, state budgetary allocations, and private donations. IOLTA funding comes from interest earned on IOLTA accounts for the temporary deposit of client funds maintained by lawyers and law firms throughout the Commonwealth. As recently as 2007, Massachusetts IOLTA accounts generated approximately $31 million in interest. This money was paid to the Massachusetts Legal Assistance Corporation, the Massachusetts Bar Foundation and the Boston Bar Foundation to support legal services for the poor. Because less money has been deposited into those accounts during the economic downturn, and because banks have lowered the interest rates paid on the deposited funds, income from Massachusetts IOLTA accounts has experienced a precipitous decline. In 2010, it dropped to approximately $9 million, less than one-third of its peak just three years earlier. As a result of low interest rates and lower balances, total IOLTA revenue could dip as low as $7 million. Every dollar lost through IOLTA means less money to support legal services, fewer legal services attorneys to address the needs of the poor, and less access to justice for those who cannot afford to hire lawyers.
The Boston Bar Association is committed to supporting adequate funding for our prosecutors, our public defenders, our courts, and our legal services organizations. With respect to legal services, every one of us can play a role. Here are three examples of what you can do:
• Call your Massachusetts legislator to discuss the importance of state funding for legal services. With fewer lawyers in the legislature now than ever before, this is especially important.
• If you are in private practice, do what you can to make sure that your firm is making appropriate use of its IOLTA account and is receiving a competitive interest rate from the bank that services the account.
• Donate to legal services organizations and to the Boston Bar Foundation. If you are not already a member of the BBF Society of Fellows, become one.
We cannot solve these problems overnight, but in many ways, large and small, we each can make a difference.
Donald R. Frederico