Cost of probe on Big Dig nearly $1m

Prosecutor's contract may be extended again

Attorney General Martha Coakley and Paul F. Ware Jr., special prosecutor. Attorney General Martha Coakley and Paul F. Ware Jr., special prosecutor. (Adam Hunger for the Boston Globe/File)
Email|Print| Text size + By Andrea Estes
Globe Staff / November 26, 2007

The special prosecutor hired by Attorney General Martha Coakley to spearhead the investigation into the Big Dig tunnel ceiling collapse is billing the state almost $30,000 a week, running up a tab that already has reached nearly $1 million and could climb even higher in coming months if his contract is extended.

Despite the bill, special assistant attorney general Paul F. Ware Jr. has so far indicted only one supplier - Powers Fasteners - in connection with the death of Milena Del Valle in July 2006. But even if convicted, the Powers Fasteners glue company faces a maximum penalty of a $1,000 fine. It is unlikely Ware will seek additional criminal charges, according to lawyers involved in the case.

Ware, head of litigation at the Boston office of the law firm Goodwin Procter, was originally hired in early March under a four-month contract to decide whether anyone should face criminal charges, but his duties were later expanded to include negotiating a settlement with Big Dig project managers Bechtel/Parsons Brinckerhoff, and his contract was extended through the end of next month, increasing the amount he can be paid from $378,000 to $978,000.

On Wednesday, Emily LaGrassa, spokeswoman for the attorney general's office, said Coakley will decide whether to extend Ware's contract again once he reaches the contractual cap of $978,000. Ware did not respond to telephone messages left seeking comment.

In a written statement last week, Coakley, who worked for Goodwin Procter in the 1980s, defended her decision to hire Ware and pay the firm's high fees.

"Assembling the best legal team available has been crucial," she said. "The Big Dig presents an extremely complicated and unprecedented set of legal and factual issues for the Commonwealth," she said.

Although Bechtel/Parsons Brinckerhoff offered the state more than $300 million to avoid criminal charges in August, no agreement has been reached, according to a source with knowledge of settlement efforts. If talks break down, Ware could prosecute Bechtel/Parsons Brinckerhoff.

According to records from the attorney general's office, Ware and two other lawyers from Goodwin Procter billed the AG's office more than $850,000 between March and September. At that pace, they will soon hit the $978,000 cap. Each lawyer is charging $525 an hour, which is a considerable discount from the standard rates of at least two of the lawyers, including Ware, whose rate was recently raised from $775 to $850 an hour, LaGrassa said.

But even at $525 an hour, the rate is much higher than most state agencies pay, and several private lawyers who sometimes represent public entities said they consider the work public service and charge much less than their usual rate.

The high legal fees are raising concerns on Beacon Hill, where lawmakers have long lamented the seemingly endlessly escalating cost of the Big Dig, which has now hit $15 billion.

"I'm unpleasantly surprised, but not shocked," said Senator Mark Montigny, Democrat of New Bedford, a member of the Legislature's Joint Committee on Transportation. "This project has been a dream for all lawyers, a full employment act for most law firms, construction firms, and public relations firms, and a nightmare for taxpayers.

"When I look at this fee, which is exorbitant to me and most rational people, the only thing I can say is it's consistent. The taxpayer has been consistently ripped off," he said.

Former attorney general Thomas Reilly made the decision to keep his Big Dig cost-recovery efforts in-house, in part because of the high cost of hiring outside lawyers, according to two people who worked for him at the time. After the tunnel collapse, however, he amassed a large group of prosecutors to work on the case, but most of them have since left the office.

Reilly last week called Coakley's decision to hire outside lawyers "appropriate" and said the charges are not excessive.

"There are a large number of parties involved, including local, state, federal, and private entities, many of whom have different and opposite interests," Coakley wrote in her statement last week. "The complex issues include evaluating potential criminal responsibility and civil liability, not only for the tunnel collapse but indeed for cost recovery for the entire project."

She said the office will pay the legal fees out of money turned over by the Massachusetts Turnpike Authority for Big Dig cost-recovery efforts. But most state agencies - which hire outside lawyers for a variety of legal work - do not pay anywhere near $500 an hour.

When Ware prosecuted Superior Court Judge Maria Lopez in 2002, he received $50 an hour, a rate set by statute. He was paid a total of $170,000 for his work over two years, according to the Commission on Judicial Conduct. Lopez resigned after a hearing officer found she had misled the public, lied under oath, and showed bias against prosecutors in the sentencing of a transgendered man who admitted kidnapping and sexually assaulting an 11-year-old boy.

The Norfolk County district attorney's office, which sometimes calls in special prosecutors, pays between $60 and $90 an hour, according to lawyers familiar with the policy.

The office of Massachusetts State Treasurer Timothy Cahill pays in the $200-an-hour range, according to spokeswoman Alison Mitchell.

Even quasipublic agencies, which are not financed by tax dollars, generally pay much less. The MBTA pays outside litigators between $135 and $250 an hour, according to spokesman Joe Pesaturo.

The Massachusetts Turnpike Authority occasionally spends $500 an hour but "typically that is for one-time reviews. It is certainly not a recurring rate the Turnpike would ever incur," said Turnpike spokesman Mac Daniel.

The Massachusetts Port Authority pays its lawyers between $170 and $600 an hour, the highest hourly rate going to its bond counsel, a spokesman said.

Lawyers for several Big Dig contractors, who are paid by insurance companies, have their fees capped by the insurers at about $200 an hour, state officials and lawyers said.

William Leahy, chief counsel for the Committee on Public Counsel Services, battled for years to increase from $30 an hour the pay of the 2,800 private lawyers who are hired by the state to represent low-income defendants. As a result, experienced lawyers who are chosen to represent murder defendants are now paid $100 an hour. Most everyone else receives $50.

If nothing else, the big fees are also raising expectations for a big settlement with Bechtel.

"With the kind of money being spent, I expect to see results in the form of large settlements," said Senate minority leader Richard Tisei. "So far, between the last two administrations and the attorney general's office, we haven't seen much."

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