TIMOTHY M. BURKE [Note 1] & another [Note 2] vs. COMMONWEALTH & others. [Note 3]

DREBEN, J. This appeal from the grant of summary judgment for the defendants raises the question whether the Commonwealth has discretion to set the hourly rate of reimbursement for attorney's fees to be recovered by a State trooper entitled to indemnification for legal fees pursuant to G. L. c. 258, § 9A. This action was brought by the trooper, Mark Garrett, and his counsel, Timothy Burke, to whom he had, it is

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alleged, assigned his right to indemnification, after the Commonwealth failed to pay Burke's bill as submitted. The Commonwealth paid Burke at the rate of $125 per hour although he had sought over $200 per hour. On cross motions for summary judgment, a judge of the Superior Court held that the Commonwealth has "discretion to set 'reasonable' limits on fees paid to attorneys representing state police officers in civil rights action[s]" and that the rate ($125 per hour) is a reasonable rate in the circumstances. We affirm. [Note 4], [Note 5]

On appeal, the plaintiffs claim that G. L. c. 258, § 9A, set forth in the margin, [Note 6] requires the defendants to pay for attorney's fees incurred by State police officers in defending civil rights

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suits and that the defendants have no basis for refusing to pay Burke's rates because such rates are not unreasonable; Burke did not agree to limit his fees; and the regulation, 515 Code Mass. Regs. § 4.02 (1998), set forth in the margin, [Note 7] does not limit payment to $125 per hour.

The materials presented by the parties reveal the following undisputed facts. Timothy Burke is general counsel to the State Police Association of Massachusetts (SPAM) and, since 1985, has represented State troopers named as defendants in civil rights lawsuits. Indeed, since 1997, when Eleanor Sinnott became chief legal counsel of the Department of State Police

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(department), Burke's law office has, "with few exceptions" represented such officers. [Note 8] The procedure followed in such circumstances is that a State police officer, upon receipt of a summons and complaint naming the officer in a civil rights action, notifies the department that he or she has retained private counsel to defend the action. Such counsel is informed that the hourly rate paid by the Commonwealth for legal services to defend a State police officer is $125 per hour. The department has allowed private counsel to correspond directly with the department and to submit bills for payment under G. L. c. 258, § 9A.

Prior to 1997, Burke was paid at the rate of $75 per hour; in 1997, after negotiation, the rate was increased to $125 per hour. Since that time there has been no agreement to pay him or any other private counsel more than the hourly rate of $125, and Burke has not agreed to continue to charge only that amount.

The defendants claim that G. L. c. 258, § 9A, gives the department "the discretion to decide how legal representation is provided, including the rate of compensation to be paid to a private attorney when the officer is not represented by the public attorney." Although it appears that, contrary to the defendants' contention, and in contrast to the procedure for legal representation set forth in § 2 of G. L. c. 258, § 9A of the statute permits State police officers to decide whether to retain private counsel (and to be reimbursed), that issue is not before us. We need only decide whether the Commonwealth may, pursuant to its regulations, which are presumptively valid, [Note 9] Massachusetts Assoc. of Cosmetology Schs., Inc. v. Board of Registration in Cosmetology, 40 Mass. App. Ct. 706, 711 (1996), set $125 as a reasonable fee for such private counsel. Pointing to the legislative policy that indemnification of officers against intentional torts and civil rights violations encourages police service, see Pinshaw v. Metropolitan Dist. Commn., 402 Mass. 687, 696 (1988); see also Filippone v. Mayor of Newton, 392 Mass. 622,

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629 (1984), Burke argues the statute's purpose and language mandates indemnification and requires payment of fees incurred, at least if they are not unreasonable. The statute does not, he claims, provide for negotiation as to what those fees should be. He is correct that the statute mandates indemnity. See Pinshaw, supra at 693; Boston v. Boston Police Patrolmen's Assn., Inc., 48 Mass. App. Ct. 74, 75 (1999). Moreover, the court in Pinshaw, supra, contrasting G. L. c. 258, § 9A, with G. L. c. 92, § 63B, stated that "under § 9A the Commonwealth must provide full indemnification," and, at note 10, observed that "[n]o statutory provision is made for administrative determination of the Commonwealth's mandatory duty to indemnify an officer under G. L. c. 258, § 9A."

Although the matter is not free from doubt, we consider that neither the language in Pinshaw, supra, nor in the statute, nor the legislative intent is compromised by the action of the department under the regulations. Unlike the other losses over which the officer has little if any control, such as damage awards for which he or she must be fully reimbursed, legal fees are negotiated by the officer and the attorney. Such fees are determined in a setting where, as pointed out by the Commonwealth, the usual client incentives to control the rates are absent. If Burke's position is correct, Garrett has no incentive to negotiate the rate. Moreover, and as indicated by note 8, supra, the fiscal burden on the Commonwealth for legal fees for State troopers under the statute is substantial even at the $125 per hour rate. It is apparent that the regulations were drafted and the rate was limited to ensure that the Commonwealth would not be bound by onerous obligations to a contract to which it did not agree. Cf. Strand v. Hubbard, 31 Mass. App. Ct. 914, 915 (1991) ( "conservative principles should apply to the determination of what is a reasonable fee when the pocket from which the fee is drawn belongs to someone other than the person who hired the lawyer").

"[W]hen actions are brought to recover indemnity either where the right to indemnity is implied by law or arises under a contract," and counsel fees are included as recoverable, they must be reasonable. Sears v. Nahant, 215 Mass. 234, 239 (1913). This is so even when the person paying the fees is a

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private party. See Peerless Cas. Co. v. Marinucci Bros. & Co., 336 Mass. 691, 695 (1958).

On the cross motions for summary judgment, neither the Commonwealth nor Burke produced evidence that the rate proposed by the other was unreasonable. Indeed, in his deposition, Burke admitted that, although it was the exception, the $125 rate was consistent with what he charged at least one entity and a few long-standing clients. The rate was within the range of the amount received by special assistant attorneys general, [Note 10] and $125 is the rate prescribed by Federal statute as generally applicable as a reasonable attorney's fee under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(2)(A) (2000). In sum, we consider that the department did not act arbitrarily in construing the regulation to permit it to set a fee which has not been shown to be unreasonable.

Since the plaintiffs sought a declaration that the department's action was in violation of G. L. c. 258, § 9A, the judgment is modified so as to declare that the department did not violate G. L. c. 258, § 9A, by setting the rate of reimbursement for counsel fees at $125. As so modified, the judgment is affirmed.

So ordered.