The situation, lawyers say, has left hundreds of defendants around the state without counsel, including at least 150 people who are in custody — people who are or will soon be entitled to release without bail under state law, which requires the assignment of an attorney within seven days.
The pay, which in Massachusetts starts at $65 per hour for cases in local district and municipal courts, "is just not sustainable for people to do this kind of work," Shira Diner, president of the Massachusetts Association of Criminal Defense Lawyers, told Law360 on Tuesday. "This is a full-blown constitutional breakdown."
Lawyers who take the cases have put up with the low pay for years, Diner said, because they believe in the goal of representation for everyone who needs it — but they feel taken for granted.
"They have been struggling," said Diner, who teaches at Boston University School of Law. "It's taken so much to get to this point."
Other area states have long surged past Massachusetts in pay for court-appointed counsel — Maine, for example, is paying $150 an hour — while the Bay State has offered increases that, averaged out over the past two decades, come out to about 72 cents per hour per year, the advocates say.
The low rates had already driven many lawyers from taking what are called "duty days" in local courts, before large numbers of those who remained stopped accepting new cases at the end of May.
"The system is on the verge of imploding," said Sean Delaney of Rappaport & Delaney, who has practiced in Massachusetts for three decades and helped convince other lawyers to put their feet down over the issue.
"We were left with no choice," Delaney said. "Year after year, we were just pushed aside."
Massachusetts provides representation for indigent defendants and others entitled to representation, such as people seeking release from mental health facilities or parents and caretakers involved in guardianship cases, through a hybrid system overseen by the Committee for Public Counsel Services, the state's public defender agency.
That agency has a roster of full-time staff attorneys, who take on about 20% of the work. The rest, however, are handled by local bar advocate programs and private organizations, which coordinate with CPCS and the courts to assign attorneys to courthouses each day and arrange for qualified counsel in more serious felony or murder cases.
There are about 2,400 private lawyers who participate in bar advocate programs around the state.
In Middlesex County, the bar advocate program is run by Middlesex Defense Attorneys Inc. Just 15 bar advocates out of 245 in that program are still accepting court appointments as of this week, Delaney said.
Suffolk County, where the program is run by Suffolk County Lawyers for Justice Inc., has seen a similar percentage of lawyers canceling their duty days during the past two weeks, Delaney said.
Jamal T. Aruri, who runs a small practice in Lowell, said the number of lawyers taking part in the Middlesex program has been steadily declining for the past decade.
New law school graduates dealing with steep debt, and more experienced attorneys dealing with running a practice in a high-cost-of-living state like Massachusetts are pursuing other opportunities, including going to other states, Aruri said.
"They simply cannot afford to do it anymore," he said.
Massachusetts pays bar advocates $65 an hour for cases in local district and municipal courts, $85 for Superior Court cases and $120 for murder cases.
New York, by contrast, pays $158 an hour as a base rate. In other New England states, lawyers are also receiving higher compensation for court-appointed work — $112 an hour in Rhode Island, $125 in New Hampshire and $150 in Maine.
Out of the hourly rate, lawyers must cover their office overhead costs like rent, staffing and mandatory malpractice insurance. Most end up with a net income of $20 to $30 per hour for the work.
Massachusetts was once viewed as a model for states providing representation, as required by the U.S. Supreme Court's 1963 ruling in Gideon v. Wainwright
."I think Massachusetts is still a model with regard to the type and quality of representation," said Diner, pointing to rigorous vetting and ongoing training requirements for all lawyers who take part in the programs, some of which she has run.
"It is incredibly robust" and includes mandatory continuing legal education, mentorships and supervision for attorneys in the program, she said.
At one time, the program in Suffolk County, where about 40 people in custody are awaiting attorneys, had a yearslong waiting list. Now programs are struggling to attract new advocates, Diner said.
While bar advocate work was never intended to be a lawyer's sole source of income, the court-appointed cases, if handled properly, take just as much time as those with private-paying clients, the lawyers say.
"If you do this work the correct way, you don't distinguish between the two," Delaney said, even when that means taking a case to trial for days or weeks and having to put the rest of your practice on hold.
It's also why stopgap efforts like increasing the cap on the number of hours a lawyer can bill the state each year, which the state started doing several years ago to deal with lawyer shortages in some areas, are not sufficient, Delaney said.
Aruri said CPCS has been warning lawmakers of the situation and the need for higher pay for at least five years but that it sometimes takes a crisis to get attention.
"It got to the boiling point," Aruri said. "There were just enough people who'd had it."
"We support our private attorneys and agree that they should be paid more for the essential work they do," CPCS Chief Counsel Anthony Benedetti said in a statement addressing the work stoppage. Benedetti said their work "is a cornerstone of public defense in Massachusetts."
Benedetti and the public defender agency have been working with lawmakers to include additional funding for indigent defense in the upcoming state budget.
"It's bad, and it's only going to get worse, until the legislature acts," Diner said.
--Editing by Brian Baresch.