Despite legislative action, 3,000+ in Mass. still without lawyers as DA reopens cases
Even with a deal reached last week by lawmakers for a raise for bar advocates, more than 3,000 indigent defendants remain without a lawyer and hundreds of cases teeter on the brink of dismissal.
Meanwhile, the Suffolk County district attorney's office said it is moving forward with re-charging people whose criminal cases were dismissed due to a lack of legal representation.
"Lawmakers could fix this. They have the money to fix this, and they're choosing not to," said Elyse Hershon, a private criminal defense attorney in Suffolk County.
"There are still thousands of people unrepresented, and there's still not enough lawyers in an aging bar where people are retiring and going to other work. There's no pipeline of lawyers coming in, and that's because the pay is too low, and it's been too low for decades," Hershon said.
Hershon is one of 2,600 private lawyers in Massachusetts who also serve as bar advocate attorneys. She handles court-appointed cases for people who cannot afford lawyers.
Bar advocates stopped taking new cases since Memorial Day as they pushed legislators for an hourly rate increase to $100, meaning thousands of criminal defendants have been left without counsel.
Amid this crisis, the state court system imposed the Lavallee protocol in Middlesex and Suffolk counties.
Under this rare rule, defendants without lawyers must be released from jail after seven day, and their cases dismissed if they are not appointed a lawyer after 45 days.
Among those who have been released is a man accused of beating a pregnant woman and a woman once listed on the Boston Police Department's most wanted list. Dismissed cases include allegations of stabbings, public attacks on women and a woman accused of trying to set a family member on fire.
In response, lawmakers approved a bill — sent to Gov. Maura Healey's desk and still unsigned as of Aug. 5 — to raise bar advocates' rates from $65 an hour to $75 by 2026, and $85 an hour by 2027.
It was a deal that many bar advocates rejected , saying they played no role in negotiating and that neighboring states like New Hampshire and Maine have lower costs of living with wages well over $100 an hour.
Bar advocate attorneys at the State House in Boston on July 31, speaking out against a bill lawmakers passed to Gov. Maura Healey's desk concerning their wages.(Irene Rotondo)
Language to prevent another work stoppage that was included in the bill also angered the bar advocates further, Hershon said, along with the $40 million allocation of funds to the Committee for Public Counsel Services to (CPCS) to hire 320 more lawyers and lessen the agency's heavy reliance on bar advocates.
"It was really confusing to us ... It's along the terms of, 'you might be prosecuted or you might be sued for refusing work in the future.' It seems punitive and really undercuts what independent contractors are all about, " Hershon said.
And as of Aug. 4, there were still 3,387 unrepresented indigent defendants across all Massachusetts District and Municipal Courts, with some in custody awaiting representation, according to a filing made Monday by CPCS.
In Suffolk County, there are 127 people whose cases were dismissed without prejudice — meaning their criminal charges can be refiled at any time — as of Tuesday, according to the Suffolk County District Attorney's office.
That includes about 30 people whose cases were dismissed in the central division of Boston Municipal Court on Tuesday.
The district attorney's office has tracked which cases are being dismissed and is "prioritizing certain cases" to reopen them. When opened again, court proceedings will pick up right where they last left off.
The Lavallee protocol is expected to continue as a rule in court systems until there's "huge strides and a huge drop in numbers" of unrepresented defendants, Hershon said, and a filing "to reverse or undo it" made by CPCS.
But because the bar advocates are dissatisfied with legislators and how unprecedented they say the situation is, Hershon doesn't feel a Lavallee reversal will come "tomorrow or next week, and it's probably not going to be next month."
CPCS said it has "identified and interviewed numerous candidates" based off the bill's additional hiring requirement, and is "prepared to make offers to between seven and ten candidates by the end of next week."
Yet, the agency is also concerned how lawmakers' decisions will affect Massachusetts court systems in the long term.
"Whether this legislation, if signed into law, will significantly ameliorate the current shortage is unknown," the CPCS filing reads.
And with "no end in sight" to the work stoppage following the lawmakers' decision, the crisis is likely to continue hurting Massachusetts' court system, according to Middlesex and Barnstable County bar advocate Sean Delaney.
Bar advocate attorneys at the State House in Boston on July 31, speaking out against a bill lawmakers passed to Gov. Maura Healey's desk concerning their wages.(Irene Rotondo)
The advocates now look to band together further by setting up a nonprofit, looking into a political action committee and retaining legal counsel for advisement on the antitrust language included in the lawmakers' bill, Delaney said.
"... [This isn't about] only for a pay increase for lawyers, but to ensure that the poor in the Commonwealth will continue to have zealous representation long into the future," Delaney said.
"We're not there yet, but we are more solidified in our position today than we were a week ago because of the vindictive proposal approved by the legislature last Thursday," he said.
Lavallee Protocol
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