Judges can not set bar advocate wages above levels approved by the Legislature to solve the recent defense counsel shortage, the Supreme Judicial Court ruled Monday.
The Committee for Public Counsel Services, which oversees legal representation for indigent defendants in Massachusetts, had originally requested that the court increase bar advocates’ payments because of a defense counsel shortage that started last year.
But the SJC wrote in its decision that the committee failed to prove “the existence of extraordinary circumstances that would justify the judicial intervention it seeks.”
An increase in set wages from the Legislature and an incentive program from CPCS for the affected courts have done enough to lessen the strain on the system, the SJC argued.
At the end of May last year, bar advocates — private lawyers that take on indigent criminal clients — had started refusing to take up new cases in Suffolk and Middlesex Counties, citing low hourly rates.
In Massachusetts at the time, rates started at $65 for district court cases, $85 for superior court cases (excluding homicides), and $120 for homicide cases. The rest of the New England States had higher rates, the CPCS argued, starting between $88 and $150.
“Partly due to the low rates, the number of bar advocates available has been in decline for several years, and Suffolk and Middlesex Counties struggled to fill duty day slots even before the work stoppage,” the SJC noted in its decision.
The SJC wrote that at the time there were “800 indigent criminal defendants without representation across the two counties, more than seventy of whom were in custody,” leading the CPCS to file a motion in June to initiate a protocol that is meant to release and dismiss cases for unrepresented defendants, so as not to violate their constitutional rights.
The SJC found that the protocol was necessary but denied the committee’s other request that wages be increased. Then in August, the committee came back to the court, asking them to clarify whether a single judge could order an increased rate, after a district court judge had done so.
In the meantime, the Legislature bumped wages up to $75 an hour, effective Aug. 1, 2025, and $85 effective Aug. 1, 2026. Additionally, it allocated $40 million to hire 320 salaried public defenders over two years.
The committee also implemented an incentive program to get attorneys to take cases in Suffolk and Middlesex counties.
While only 25% of indigent criminal cases were assigned representation in early August, by December, 74% of cases had been assigned.
Because those responses have been sufficient “to maintain a constitutionally adequate court system, and because there has been no showing that attempts at remediation have been exhausted,” the decision stated, “it would be inappropriate for the judiciary to order rate increases.”
Doing so could only occur under extreme circumstances, the SJC said, largely because “judicially ordered rates for bar advocates raise separation of powers concerns.”
Having judges raise wages unilaterally could also raise budgetary issues. “Increasing the rates would necessarily require funding beyond what has been appropriated for that purpose,” the decision stated.
Sean Delaney, president of the Massachusetts Association of Private Appointed Counsel, said that they respect the decision but still feel that the current compensation is “inadequate.” The incentives program that SJC mentioned in their decision “is not a solution, it’s a bandaid,” he said.
Although things may have improved since the summer, there are still issues. Delaney told the Herald, for example, that there were 39 defendants in custody awaiting arraignment at Lowell District Court Monday and only one bar advocate on duty when full staffing would be four.
“One bar advocate can not take on 39 cases, and that is what is happening,” he said.
Delaney said he understands why the SJC did not want to create a separation of powers conflict, but expressed frustration “the one entity that can correct that,” the Legislature, “hasn’t done so.”
“This crisis will continue,” he said. The efforts so far “may be putting the fire out, but the fire is going to blaze again fairly soon.”
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