Massachusetts' highest court on Monday declined a request to let state judges offer higher hourly rates to induce attorneys to accept court-appointed cases, a proposal meant to alleviate a shortage of appointed counsel in two of the state's busiest counties.

The Supreme Judicial Court concluded in an opinion that existing measures appear to have significantly reduced the shortage. Those include implementing a protocol that requires the release of unrepresented defendants after seven days and dismissal without prejudice after 45 days, and an incentive bonus plan offered by the state public defender agency, the Committee for Public Counsel Services.

As a result, the court said it saw no reason to grant CPCS's request to step into what the high court said was the domain of state legislators.

"Because we conclude that CPCS has not demonstrated the existence of extraordinary circumstances that would justify the judicial intervention it seeks, the requested relief is denied," Chief Justice Kimberly S. Budd wrote for the court.

Last May, a number of private attorneys who accept court-appointed cases, known as bar advocates, stopped accepting new clients and canceled scheduled "duty days" over the pay rate, which had not been adjusted for years.

The informal action primarily involved attorneys in Suffolk County, which includes the city of Boston and several smaller communities, and Middlesex County, comprising dozens of suburbs north and west of the city.

At the time, the advocates' pay ranged from $65 per hour for district and municipal court cases, to $85 per hour for superior court work and $120 an hour for murder cases.

The advocates pointed to New York state, where the bar advocates receive $158 per hour.

The work stoppage left hundreds of defendants without counsel for months, leading SJC Justice Dalila Wendlandt last summer to implement the so-called Lavallee protocol, named for a case brought during a similar attorney shortage in western Massachusetts in the early 2000s. That protocol required unrepresented defendants to be released after seven days in custody, and their cases dismissed without prejudice after 45 days.

Indigent defense in Massachusetts is overseen by CPCS, which provides its own staff attorneys and also oversees a group of nonprofit private organizations, including Suffolk County Lawyers for Justice, who maintain lists of private lawyers willing to take court-appointed cases.

They asked the high court last year to step into the pay dispute, saying the inability to find lawyers to represent indigent defendants had created a constitutional crisis and that judges should be allowed to offer more pay to lawyers to address the shortage.

CPCS, the justices noted Monday, was established in the early 1980s by the legislature in order to fix what had been a "patchwork" system of local programs that often left it to judges to decide what a lawyer would be paid for a specific case.

The legislation created a "centralized compensation scheme" that was controlled by lawmakers, the justices said.

However, advocates say the compensation has failed to keep pace with the costs of running a practice.

Justice Budd said in Monday's ruling that the state legislature, which last summer approved a phased-in, $20-per-hour rate increase, is in a better position to determine appropriate rates.

"Indeed, the legislature has recently acted," Justice Budd said, noting the pay increase, along with funding for additional staff public defenders who would work directly for CPCS.

"In doing so, the legislative branch has demonstrated its awareness of 'defendants' constitutional right to counsel, and of the demands that right makes on the public treasury,'" Justice Budd said, quoting the Lavallee decision.

"Additionally, the availability of counsel has substantially improved following the announcement of legislative action and CPCS's incentive program," the chief justice said. "And CPCS acknowledged that access to additional public defenders may eventually resolve the counsel shortage. Given these fluid circumstances, increases to bar advocate compensation rates undertaken by the judiciary would be inappropriate."

The justices also rejected an argument that trial court judges have the authority to use an alternative procedure for appointing counsel under certain circumstances, saying the judges are required to follow the authority of the justices, who have already acted to address the situation by implementing the protocol.

A CPCS spokesperson vowed in a statement "to continue our advocacy efforts in the State House to ensure that the private attorneys who take our cases are compensated appropriately for the hugely important work they do for our clients."

"This effort is also essential to recruiting enough talented private attorneys interested in taking our cases," the spokesperson added. "Defending our clients' rights is a privilege, and we will continue doing everything we can to ensure they have the best possible advocates in their corner."

Shira Diner, a professor at Boston University School of Law who has served as a spokesperson for the bar advocates during the work stoppage, said she was "deeply disappointed" with the ruling. 

"The right to counsel is the cornerstone of our legal system, and by not recognizing the system of indigent defense hanging by a thread, our system will be unable to survive the next counsel crisis," Diner told Law360. "The court must maintain a constitutionally adequate system of indigent defense and recognize the urgency of the moment. Without the authority to raise the rates to keep a sufficient number of bar advocates engaged in the work, the promise of the right to counsel will exist only at the whims of the legislature and the political process."

The Massachusetts Association of Criminal Defense Lawyers released a statement later Monday that also expressed disappointment with the decision: "A public defense system that requires recurring emergency measures to meet its constitutional obligations is not a functioning system; it is one perpetually one budget cycle away from collapse."

A representative for the respondents did not immediately answer a request for comment.

CPCS staff spent part of Monday at a legislative hearing on a proposed ballot measure that would allow its employees to organize and engage in collective bargaining. During the hearing, the agency's chief counsel, Anthony Benedetti, referred to the work stoppage and told lawmakers that the agency is "grateful for the legislature's engagement on the issue" last year.

The petitioners are represented by Rebecca A. Jacobstein, Benjamin H. Keehn and Holly Smith of the Committee For Public Counsel Services.

The respondents are represented by Marina Pullerits and Jennifer Zalnasky of the Office of the Attorney General of the Commonwealth of Massachusetts.

The Suffolk County District Attorney's Office as intervenor is represented by its own Elisabeth Martino.

The case is the Committee for Public Counsel Services v. Middlesex and Suffolk County District Courts and Boston Municipal Court, case number SJC-13824, in the Supreme Judicial Court for the Commonwealth of Massachusetts.

--Editing by Marygrace Anderson.

Update: This story has been updated to include a comment from the defense bar.