Lawyers’ numbers dwindle in Legislature

Departed include many key lawmakers

By Michael Levenson
Globe Staff / December 27, 2010

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Beacon Hill has undergone a gradual and potentially significant evolution that may be cause for celebration in some quarters but has sparked anguish and soul-searching in legal circles: Fewer lawyers are serving in the State House.

The Boston Bar Association, which has warned that lawyer-legislators could become an “endangered species,’’ recently reported that the number of attorneys in the 200-member Legislature will drop from 65 in the current session to 52 when the new session begins next month. That exodus adds to the departure in recent years of a number of prominent and outspoken defense lawyers.

Those defense lawyers — including former House speaker Salvatore F. DiMasi, former senator Robert S. Creedon, and Representative James H. Fagan — have been among the most influential on criminal justice issues, and were often blamed by prosecutors and victims’ advocates for fighting efforts to toughen drunken driving laws and criminal penalties.

With lawmakers in the new session expected take up a host of complex criminal issues — including bills to allow convicts greater access to their DNA records, to further reduce minimum mandatory sentences, and to stiffen drunken driving laws — many in the legal community are debating what it will mean to have fewer lawyers making laws.

Defense lawyers, not surprisingly, are most concerned about losing clout. They say their members in the Legislature have traditionally raised important but deeply unpopular questions about measures to crack down on everyone from accused murderers and rapists to drivers who don’t wear their seat belts.

“This country was founded on the notion that we have to be suspicious of authority,’’ said John H. Cunha Jr., president of the Massachusetts Association of Criminal Defense Lawyers. “Who is going to stand up for those who are despised by society and be willing to say, ‘Wait, wait, wait. Let’s not rush to judgment here. Let’s not rush to legislative judgment. Is this good policy?’ ’’

Prosecutors and their allies say the change may help them make progress on their priorities, including a looming fight to increase their budgets. They argue that defense lawyers in the Legislature have too often used their power to block and bury not only their requests for money but their bills to increase criminal sanctions.

“They are defense attorneys and they look at these issues through that prism, and it’s a very natural thing,’’ said Daniel P. Haley, a lawyer who battled defense attorneys in the Legislature when he helped write and promote Melanie’s Law, a strict drunken driving measure approved in 2005. “But in my view, they’re not representing their constituents. They’re representing their clients, and that’s a big problem.’’

Defense lawyers reject that argument and say the notion that they conspire to block legislation is more myth than reality. Representative Eugene L. O’Flaherty, a criminal defense attorney who oversees most crime bills as House chairman of the Judiciary Committee, is often blamed for bottling up tough-on-crime measures. But he pointed out that his panel includes more former prosecutors than defense lawyers.

“It’s become very convenient to castigate lawyers, and in particular defense lawyers, as being obstructionist in order for legislation to get passed,’’ he said. But defense lawyers often raise legitimate questions about constitutional protections, he said. “Lawyers,’’ he said, “are trained to critically think about these issues.’’

Edward P. Ryan Jr., a former president of the Massachusetts Bar Association, said lawyer-legislators also bring real-life experience from the courts. “To have, in house, people with that experience is important,’’ he said, likening it to including doctors in a debate about health care.

But the dual role of lawyer-legislators can create serious complications.

In 1991, after lawyers who served in the House and Senate were accused of receiving preferential treatment when they argued cases before certain judges, Paul R. Sugarman, then dean of Suffolk Law School, recommended that lawyer-legislators be limited or banned from practicing in the state’s trial courts.

In a report commissioned by the Supreme Judicial Court, Sugarman wrote that, because lawyer-legislators control judges’ budgets and judges determine the outcome of those legislators’ cases, “the relationship creates unavoidable suspicion and the appearance of a conflict of interest.

“The argument that experienced, practicing lawyers, as legislators, bring their knowledge of, and experience in, the court system to the legislative process in dealing with judicial issues is an appealing one,’’ Sugarman wrote. “However, it is not without a high price.’’

This year, Fagan, a Taunton Democrat first elected to the House in 1992, lost his seat to a Republican after he sparked a firestorm by denouncing mandatory sentences for sex offenses against children. In an incendiary floor speech, he said the legislation would force him to “rip apart’’ young rape victims on the witness stand because he would no longer be able to cut plea agreements for lesser sentences.

“That 6-year-old is going to sit in front of me, or somebody worse than me, and I’m going to rip them apart,’’ he said. “I’m going to make sure that the rest of their life is ruined — that when they’re 8 years old, they throw up. When they’re 12, they won’t sleep. When they’re 19 years old, they’ll have nightmares, and they’ll never have a relationship with anybody.’’

“And that’s not because I’m a nice guy,’’ he added. “That’s your obligation as a trial lawyer.’’

Shaunna O’Connell, the Republican who ousted Fagan, featured the remarks prominently in her campaign, and even mailed out cards that, when opened, played a clip of Fagan’s speech. “Hear him in his own words,’’ the card read.

The exodus of lawyers in January, however, also includes several who fought for tougher criminal laws, which could balance out the loss of defense lawyers. Those legislators include Republican representatives Jeffrey D. Perry, a former police officer who lost his race for Congress; Karyn E. Polito, an advocate of stricter sex offender laws who lost a bid for treasurer; and Lewis G. Evangelidis, a former prosecutor who was elected Worcester County sheriff.

To be sure, the State House won’t lack for legal representation. Even with 13 lawyers departing next month, Massachusetts will still have a higher percentage of attorneys in its Legislature than the national average, according to the American Bar Association. And lawyers, given their penchant for argument, have a way of making their voices heard.

“I wouldn’t underestimate the ability of lawyers in general to convey their views on an issue — any issue,’’ said Michael W. Morrissey, a lawyer who is leaving the state Senate after being elected Norfolk district attorney. “It’s a pretty effective lobby. They’re just going to have to spend more time educating and talking to legislators.’’

Michael Levenson can be reached at