Massachusetts high court to consider raising bar advocate pay rates

The hearings would for the first time give all of the members of the court the ability to weigh in on a crisis that has gripped the criminal justice system since May, when many of the state’s private court-appointed attorneys, known as bar advocates, stopped taking new cases as they sought higher pay rates from the state.
The crisis has continued even after legislative action. At the prompting of the state’s public-defender agency, the justices will now mull the extraordinary measure of taking a matter of spending into their own hands.
At issue is whether the judges should grant pay raises for the private attorneys. And if so, do they have the authority to?
Until now, only a single justice of the court has weighed in on the crisis. SJC Justice Dalila Argaez Wendlandt set up an emergency protocol for the courts to follow for cases in which a defendant was not appointed a lawyer, a constitutional right. But she paused at the question of whether the courts could order raises.
That duty has been reserved for the Legislature, which has proven unwilling to bend to the attorneys’ demands. In August, Governor Maura Healey signed into law a package from the Legislature that gave a modest base pay raise for lawyers of up to $20 over two years, a third of what the advocates were asking. But it has largely failed to end the stoppage.
The bar advocates typically handle the cases for roughly 80 percent of poor criminal defendants in the state, with staff public defenders from the state Committee for Public Counsel Services covering the rest. Other states handle the matter far differently, choosing to staff more public defenders to take cases for indigent clients.
Massachusetts’ unusually heavy reliance on the bar advocates gave these attorneys major leverage, and they wielded it by almost universally removing the bar advocates’ service from the district courts for Suffolk and Middlesex counties, which include busy courts in Boston, Cambridge, and Lowell.
Quickly, public defenders from the Committee for Public Counsel Services were overwhelmed with cases as a mounting number of people were charged with crimes without access to lawyers. As these numbers increased, Wendlandt implemented the emergency protocol meant to preserve the defendants’ right to counsel. The hearings held under the Lavallee protocol — named after a court decision from the last time bar advocates stopped taking cases two decades ago — were authorized to release people without attorneys who had been held for more than a week, and to dismiss cases altogether after 45 days.
Since then, the crisis has persisted, and in some ways worsened.
Some defendants have been arrested, released, and re-arrested multiple times through the protocol, and others have seen their cases drag out for months, making it more difficult for their lawyer, once they have one, to properly investigate their case to fight it.
Lawyers who have been watching the crisis unfold pointed out one recent case in Dorchester that illustrates the chaos that the stoppage has caused the justice system. In that case, defendant Nelson Foster of Dorchester was arrested in late July after he allegedly assaulted one of his relatives and threatened others with knives, and police say they were forced to use a Taser to arrest him. But, because he had no access to a lawyer, he was released from jail in early August.
Four days later, the 39-year-old was arrested again, for allegedly trying to grab a Boston police officer’s gun, and then spitting on another officer. He was charged again with felony assault and ordered held.
Once more, with no lawyer available to represent him, a judge decided on Sept. 4 to release him. Hours later, he allegedly was back on a porch outside his relatives’ house in Dorchester, being arrested again for violating the restraining orders filed by the relatives he’d allegedly attacked in July.
This was his third arrest in a month and a half, and now he’s back in jail.
It’s one example of the balancing act the courts are struggling to strike four months into the attorney work stoppage: How to reconcile the due process rights of defendants to a fair justice system and access to a lawyer with the concerns of victims of crime and violence who rely on the same system for protection.
And the problem shows no signs of ebbing.
“There’s still a crisis,” said Jennifer O’Brien, one of the leaders of the stoppage. “The numbers will continue to grow, and cases will continue to be dismissed. Somebody has to act.
Before the legislative package was approved in August, the bar advocates had been making $65 an hour at the base level. They sought a pay increase of $60 over two years, arguing it’s needed to bring them in line with surrounding states. Legislators instead gave them the $20 increase over two years, and also agreed to double the number of public defenders on state staff.
Because private attorneys are independent contractors, there’s no binding bargaining process that will bring about a resolution, the way it would in a union negotiation. Rather, the question was whether the raise would persuade enough lawyers to take cases again and minimize the stoppage.
Now, more than a month after the raises were approved, more than 3,300 defendants do not have representation in the district courts of Suffolk and Middlesex counties, including more than 50 in custody. In total, at least 258 people have been released through the Lavallee protocol, including 156 in Boston. And judges have dismissed at least 890 cases, including 300 in Boston, according to what the state trial court system calls a conservative count last week.
More than 50 more cases were dismissed on Tuesday, including multiple charges of domestic assault and battery, several allegations of drug dealing, and two separate kidnapping cases.
Since the crisis began, several local judges have independently ordered raises for lawyers in certain cases to $100, but it’s not entirely clear if they have the authority to do so. CPCS praised Thursday’s decision for the full court review.
The Trial Court and the Suffolk District Attorney’s Office had pushed back. The courts argued in a brief filed earlier this week that judges should not be able to unilaterally order raises on individual instances.
The Suffolk District Attorney’s office, in its own brief, said, “the power to enact laws and appropriate public funds lies squarely and exclusively with the Legislature, and … this constitutional authority must remain with that branch.”
On Thursday, Wendlandt referred these questions to the full SJC, because it “raises an important question of law.”
Wendlandt wrote that, even after the August raise went into effect, “it is not clear from the record before me whether this legislation will cure the current shortage of defense counsel, and if so, on what timetable.”
“The number of unrepresented indigent criminal defendants remains substantial,” she said.
Sean Cotter can be reached at sean.cotter@globe.com. Follow him @cotterreporter.