Showdown over shortage of lawyers for poor heading to SJC

ALL DEFENDANTS in criminal cases are constitutionally entitled to legal representation, regardless of their ability to pay for an attorney. But what happens when the office charged with providing lawyers for poor people says it is so overloaded with cases that it can’t provide an adequate defense to any more clients?

That question will come before the Supreme Judicial Court on Thursday in a closely watched case that will have implications across the state.

In mid-June, the two top lawyers in the Springfield office of the Committee for Public Counsel Services, the state agency in charge of indigent defense, told Springfield District Court Judge John Payne that their overburdened office could not handle any more cases involving initial arraignments in the court. Payne responded by ordering their office continue to provide representation to defendants.

CPCS sought an emergency opinion from a single justice of the Supreme Judicial Court, and on June 28 Justice Kimberly Budd issued a ruling superseding Payne’s directive. She ordered the Springfield court to operate instead under a rule imposed by the SJC in a similar case from 2004, which also involved a claim that there were not enough lawyers to handle indigent defense cases in Hampden County.

Under the so-called “Lavallee protocol,” named for the indigent client in that case, any defendant who has been held following arrest for more than seven days without a lawyer is entitled to be released, and defendants with cases pending without counsel for more than 45 days are entitled to have their case dismissed.

“Now, fifteen years later, Hampden County indigent defendants are again facing the consequences of a counsel shortage in the district court arraignment sessions,” wrote CPCS lawyers in their brief for Thursday’s hearing. “The district court’s response, appointing overwhelmed public defenders who are not in a position to provide constitutionally effective representation (and thereby placing the burden of a systemic failure to safeguard the right to counsel squarely on the shoulders of indigent defendants), constitutes an unconstitutional exercise of judicial power.”

Attorney General Maura Healey’s office, which is representing the Hampden County courts in the case, defended Payne’s order that CPCS provide defense lawyers despite its claims of being overburdened.  “In effect, the court had no good options in these circumstances, and it chose the least-bad option in keeping the court operational,” argues the brief submitted by Healey’s office.

The attorneys handling the case for CPCS maintain there can be no compromising a defendant’s right to proper defense. “A systemic, court-ordered violation of the right to counsel can never be the least-bad option – indeed, it should never be an option at all,” they wrote in a reply to the filing from Healey’s office. That is “especially true where, as here, this Court has already set forth a framework for dealing with counsel shortages,” they said, a reference to the 2004 Lavallee case.

The Springfield showdown came after years of mounting problems securing representation for poor defendants in Hampden County.

While CPCS staff attorneys handle some cases, its Springfield office, like all others in the state, relies on private lawyers to take on a substantial share of its cases. CPCS says poor conditions in the Springfield court, combined with inadequate pay under the state-set rates for bar advocates, have made it increasingly difficult to draw enough private lawyers to handle cases. That pushed up the caseload of CPCS staff attorneys to the point where the agency said it could no longer provide clients with an adequate defense.

The number of days covered for initial arraignments in Springfield District Court by outside lawyers dropped from 1,034 in fiscal year 2016 to 442 in FY 2019, according to the public defense agency.

In mid-July, CPCS announced an emergency day rate of $424 for private lawyers to handle arraignments, a move that has eased the shortage and drawn in more attorneys from the area as well as from neighboring counties to cover the indigent defense caseload. The agency has now extended the emergency payment rate through the end of November.

One big question will be what, if anything, the SJC elects to do beyond restating the authority to impose the Lavallee protocol, which no one views as a true remedy for the problem.

Both sides agree that an increase by the Legislature in the rates paid to private lawyers is the ultimate solution to the problem. Lawyers handling district court cases are paid $53 an hour, a figure that has only increased by $3 from the rate in place 10 years ago.

The “Court can emphasize in its opinion, for the benefit of the Legislature (as it did in Lavallee), the central importance of assigned counsel for indigent defendants in criminal cases, and that rates for district court bar advocates are unacceptably low,” Healey’s office wrote in its filing.

CPCS attorneys Rebecca Jacobstein and Benjamin Keehn sounded the same theme. “In Lavallee, the Court deferred to the Legislature — but only temporarily — to allow that branch of government to remedy a counsel shortage caused by insufficient attorney compensation. That course is again appropriate,” they wrote.

Suffolk District Attorney Rachael Rollins filed a brief in the case last week, urging action on pay for court-appointed lawyers. “Constitutional prosecutions are an underpinning of a justice society,” she wrote. “Yet, these proceedings can only meet the standards set by our Founding Fathers if the attorneys charged with safeguarding them are paid a living wage.”

While the shortage of defense lawyers for the poor appears to be most acute in Hampden County, Rollins said the case could implicate “the rights of defendants across the Commonwealth, including those in Suffolk County, and impacts this office’s commitment to ensure that justice is done.”

Courts are typically reluctant to impose orders on the legislative branch, something the two sides seemed to acknowledge in urging the SJC to use the power of its platform to call on the Legislature to address the problem of public defender pay.

But some think it’s time for stronger action.

The Hampden County Lawyers for Justice and the Massachusetts Association of Criminal Defense Lawyers, groups that represent private attorneys who handle cases for indigent defendants, argued in a brief filed in the case that the SJC should move to remedy a breakdown in a cornerstone constitutional right.

“We are saying the court should declare the compensation rates unconstitutional as applied to Hampden County, which would in essence require the Legislature to raise those rates,” said Matthew Segal, an attorney with the American Civil Liberties Union of Massachusetts, who is representing the groups and will also argue before the SJC at Thursday’s hearing.