CPCS urges SJC to set higher pay for bar advocates as more than 900 defendants lack counsel

The Supreme Judicial Court on Wednesday heard competing arguments over whether courts may order higher pay for private attorneys who accept indigent defense work after a withdrawal of services left what CPCS says is “over 900 people without lawyers.”

Rebecca Jacobstein, counsel for the Committee for Public Counsel Services, told the justices the court has inherent authority to act when the shortage results in a systemic denial of the constitutional right to counsel. “The answer to the first question is a resounding yes,” Jacobstein said. “The courts are the ultimate protectors of constitutional rights. They must protect the right to counsel. They must protect the right to a fair trial, and they must…protect the right to access justice.”

Jacobstein described concrete harms she said arise from delayed appointment of counsel: defendants placed on GPS monitoring or onerous pretrial conditions without an attorney to contest those conditions, lost opportunities to gather evidence or interview witnesses, and a class of defendants who face presumptively prejudicial outcomes because no lawyer was present at critical early stages. She also told the court the LaValle protocol — the court‑created status and dismissal process — was intended as a temporary remedy and has so far not cured the backlog: “We still have over 900 people without lawyers,” she said.

The Attorney General, speaking for the Middlesex and Suffolk County district courts and the Boston Municipal Court, urged the court to decline to set rates. Assistant Attorney General Marina Polores said the statutory framework created with the establishment of CPCS and G.L. c.211D, §11A supplies a legislative compensation scheme and that judicial rate‑setting would infringe Article 30 of the Massachusetts Declaration of Rights. “The courts respectfully request that you answer that question in the negative and hold that any judicial rate setting would be inconsistent with the separation of powers,” Polores told the court.

Polores emphasized recent legislative and administrative steps intended to address the shortage: she cited a statutory increase she described as “$20 over the course of two years,” an Inspector General review ordered by the legislature, and a CPCS staffing plan that she said will onboard about 320 staff attorneys over two years. Polores also noted a recently instituted CPCS incentive program that she said, as of argument, had attracted “over 100 bar advocates” and removed “well over a thousand cases off of the list.” She argued that the LaValle protocol and these measures remain operative and that, under the precedent the court has applied, judicial intervention in rate setting should be a last resort only if the courts cannot perform their core constitutional functions despite those efforts.

Counsel for the Suffolk County district attorney, Elizabeth Martino, urged caution about using out‑of‑state solutions as models. Martino cited precedents in which courts temporarily set rates where record evidence showed a persistent, years‑long funding failure that produced an ‘‘organic’’ shortage, and she said the record here reflects a different factual pattern — including an organized withdrawal of private counsel in high‑volume counties. She also flagged public‑safety concerns and urged the justices to allow the legislative and CPCS responses to continue to play out.

Throughout the argument, several justices pressed both sides on practical metrics: how the court would set a “reasonable” hourly rate, whether a rate that induces participation by a “critical mass” of private lawyers could be identified by judges, and what showing would be required before the court could leap from supervisory court functions to what the AG described as an appropriation or facial rewriting of a legislative scheme. Counsel debated remedies such as dismissing cases with prejudice at 45 days, shortening LaValle timelines, or other procedural changes aimed at reducing the liberty costs imposed on unrepresented defendants.

No final decision was reached at argument. The court’s questions focused on whether any judicial remedy should be temporary and tied to a narrow factual showing that legislative and administrative measures had failed to restore minimally adequate court operations. The matter will proceed through the single‑justice and supervisory processes the court outlined in prior LaValle and Carrasquillo decisions.

Clarifying details recorded in the argument include CPCS’s representation that more than 900 people currently lacked lawyers; CPCS’s count of approximately 600 new cases a month and spikes that recently reached 143–163 people in a single week; the legislature’s two‑year plan to add roughly 320 CPCS staff attorneys; a CPCS incentive program instituted the prior week that Polores said would expire November 17 or when the backlog cleared; and the LaValle protocol’s presumptive status hearing/dismissal timelines (dismissal without prejudice at 45 days for out‑of‑custody cases and prompt status hearings for in‑custody cases at seven days). Where numbers or dates were discussed but not fixed in the record, the article uses the language counsel used at argument (for example, “over 900” or “about 320”).

The court heard the argument and questioned counsel extensively about metrics and separation‑of‑powers boundaries; it did not announce a ruling on whether courts may set bar‑advocate compensation inconsistent with the statutory framework.