Copyright MassLive
Criminal defense attorneys across Massachusetts are being offered $2,500 for every five new cases they take, part of an urgent push to end a courtroom representation crisis caused by a work stoppage that began on Memorial Day. The one-time $2,500 incentive was offered in an email sent to bar advocate attorneys statewide on Monday, signed by Committee for Public Counsel (CPCS) Chief Counsel Anthony Benedetti. The email was provided to MassLive by CPCS. “This situation remains deeply concerning,” Benedetti wrote. “Every day that passes without counsel is another day that someone’s liberty, rights, and dignity are at risk. The urgency to act cannot be overstated.” To assist in the “prompt assignment” of attorneys to criminal defendants with cases in Suffolk and Middlesex District Courts or in the Boston Municipal Courts who are currently unrepresented, CPCS is implementing a one-time short-term incentive program. The program will close at 5:00 p.m. on Nov. 17, or “until there are no longer any defendants in these courts awaiting counsel, whichever comes first,” Benedetti wrote. This will be “the only such incentive offered this fiscal year,” he added, and aims to “meet our constitutional and ethical obligations to these clients.” “I want to be very clear: this is not a permanent fix,” Benedetti continued in his letter. “We remain firmly committed to advocating for higher hourly rates for all panel members and systemic changes that recognize the true value of your work and the essential role you play in the justice system.” This monetary offer comes amid a constitutional crisis in Massachusetts courts. Since Memorial Day, bar advocate attorneys — private lawyers who represent low-income defendants — have stopped taking new cases, demanding a raise to $100 an hour. The work stoppage left thousands of criminal defendants across the state without legal representation. In response, Justice Dalila Argaez Wendlandt activated the Lavallee protocol in Suffolk and Middlesex counties, requiring defendants to be released after seven days without a lawyer and their cases dismissed after 45. There’d been more than 3,000 adult criminal defendants left without a lawyer as of August. A new law was passed that month to raise hourly rates from $65 to $85 an hour by 2027, which bar advocates at the time called “a slap in the face.” As of October, more than 2,100 defendants in Suffolk and Middlesex Counties were still without a lawyer, 52 of whom were in custody, according to CPCS data. At least 1,030 cases have been dismissed without prejudice since the protocol went into effect. Lawyers who choose to participate in the $2,500 incentive for every five cases can receive a maximum total of $7,500 for accepting 15 new cases, on top of their normal hourly rate, according to Benedetti’s letter. Case assignments will come from the current list of unassigned defendants in Suffolk and Middlesex District Courts and the Boston Municipal Courts, at least one of which will be a person who is in custody. The assignments will be prioritized based on the submission order through the online Incentive Request Form, CPCS said. To be eligible for the incentive, lawyers need to be in good standing with the Bar Advocate Programs. They must have already completed 800 hours of work through CPCS by Sept. 30 — or the end of fiscal year 2025 — or have accepted five assignments in fiscal year 2026. They also need to schedule two duty days between Oct. 20 and Dec. 31, which can be made simultaneously with the incentive request. Lawyers who travel out-of-county, or over 50 miles, can claim hotel expenses up to $250 per night. Payments for these cases will be processed with regular e-bill cycles after a lawyer’s fifth case assignment notice has been issued. To some bar advocates, this incentive will still “not do anything to solve the problem.” “It is essentially another mechanism by which the legislature in conjunction with CPCS will forever keep pay rates for bar advocates below a fair way,” said Middlesex and Barnstable County bar advocate Sean Delaney, who often leads the public efforts in the interest of bar advocates. It will “lead to the further erosion of the right to counsel for the poor in Massachusetts,” Delaney said, which he called “disgusting.” This incentive comes ahead of a key decision next month by the Supreme Judicial Court on whether judges have the authority to set defense attorneys’ pay — a question raised repeatedly as multiple judges have ordered $100 hourly rates since the work stoppage began. The incentive also echoes past damage control attempts from previous court orders — the Carasquillo protocol, which also protected defendants’ constitutional right to counsel in 2019 — where attorneys were offered a $424 bonus for every eight hours they served in court. It was a successful incentive to encourage more duty day coverage — but at the time, there had only been a backlog of 110 unrepresented clients in Hampden County.
