Private attorneys stop accepting court-appointed cases, citing wages
Photo | Courtesy of State House News Service
Jennifer O’Brien, a bar advocate, speaks at a rally outside the State House on Tuesday.
Hundreds of private attorneys who represent indigent defendants across Massachusetts announced Tuesday that they will stop accepting new court-appointed cases until the Legislature raises their pay to match rates in neighboring states.
Speaking at a rally outside the State House, bar advocate Jennifer O’Brien said the private bar advocates — independent attorneys who handle about 80% of the state’s overall public defense caseload — have reached a breaking point after years of stagnant wages.
"We are a line item in the state budget, attorneys that no one really thinks about until they aren’t there anymore," O’Brien told the crowd.
She noted that Massachusetts, despite having one of the highest costs of living in the country, pays its court-appointed attorneys far less than states like Maine, New York, and Rhode Island — sometimes less than half.
Massachusetts pays $65 per hour for District Court and $85 for Superior Court counsel, according to a press release circulated by bar advocate Mara Dolan, who is also an elected member of the Governor's Council. Maine pays $158 per hour, New Hampshire pays $125-150, New York pays $158, and Rhode Island pays $112-142.
O’Brien said the comparatively low-rate has led more and more bar advocates to move to better paying states or leave public defense altogether.
"Without bar advocates taking new cases, the court system will implode," she said. "This will result in case backlog, a violation of constitutional rights, people being held in custody without due process, and victims not receiving their day in court."
All defendants in criminal cases are guaranteed a right to legal counsel in the United States.
The attorneys are not staging a formal strike, O’Brien said, but many have individually decided to take part in the work stoppage.
Asked if the majority of the 2,600 private bar advocates in Massachusetts are joining in the action, Sean Delaney, a bar advocate in Middlesex and Barnstable counties, said, "I would say that there is a majority of bar advocates in the state that have joined in this cause."
Delaney said he and others pledged to finish cases they are working on, but would not take new cases.
"There's no one here that's going to abandon one client that we've been assigned to. Just no new cases. That's the pledge I personally have taken. And everyone behind me, and hundreds of others that could not be here today have taken the same pledge," he said.
When pressed for a more exact number of how many bar advocates would stop taking new cases, the advocates said it's difficult to pin down an exact number because each county is responsible for running its own program and Tuesday was only the first day of the stoppage.
"Those that can afford to stop are making the effort to do so," said attorney John Harding of Springfield. "Those that can't are new attorneys, the overhead is really daunting to run an office, you have to rent an office...They've got young families, loans to pay off, law school loans and whatnot. And so those are the ones that are likely to continue taking cases."
In a May 22 letter to Trial Court Chief Justice Heidi Brieger, Committee for Public Counsel Services Chief Counsel Anthony Benedetti said a bar advocate work stoppage would "impact CPCS's ability to provide counsel at arraignment, and possibly to provide counsel at all."
Under state law, CPCS is responsible for overseeing and coordinating the delivery of criminal and certain noncriminal legal services by salaried public counsel, bar advocate and other assigned counsel programs and private attorneys serving on a per case basis.
"We support our private attorneys and believe they should be paid more for the essential work they do in providing legal services to indigent clients across the Commonwealth," Benedetti said in a statement. "Should a work stoppage occur, we will do everything within our statutory responsibility to ensure that all indigent individuals receive legal counsel, prioritizing those most urgently in need, because it is paramount that our clients' constitutional rights are protected."
The letter details CPCS's plan to continue to provide as many defense counselors as possible during the work stoppage. It includes having their staff public defenders and Youth Advocacy Division take additional cases where there is capacity, and accept new cases for their current clients, even if those cases are arraigned on a day they're not on duty. Other cases will be sent to local bar advocate programs.
As of Tuesday afternoon, the Trial Court said it had not received any formal notification of a work stoppage from bar advocates.
Jennifer Donahue, spokesperson for the court, said the Trial Court is in communication with CPCS "in an effort to reduce potential disruptions should a work stoppage by Bar Advocates occur."
In 2004, bar advocates in Hampden County stopped taking new cases after they hadn't received a pay raise in 20 years. At that time, they earned $30 or $39 an hour depending on the type of case they were assigned, which had not changed since 1984.
After they abruptly stopped taking new cases, the Legislature raised their hourly pay by $20, said Lynn-based attorney Todd Siegel.
That $50-per-hour pay remained the same at the District Court level until fiscal year 2017, when it increased to $53, according to documents provided by CPCS. In the time since it's been raised to $65.
Bar advocates earn higher pay for other types of cases, such as $85 for Superior Court cases, $85 for appeals, $65 for mental health and juvenile cases and $120 for murder cases. The last bump to those rates was in fiscal 2022, when each type of case saw $5 or $10 per hour increases.
O'Brien said over the last 21 years, their raises have averaged out to 71 cents per year.
"How many of you would continue to work for a company year after year, where the average yearly increase is 71 cents? Not many," she said.
A number of bar advocates blamed the Legislature for the slow rise in their hourly pay.
"Recently, the Legislature here just essentially ignored us. In the House of Representatives gave us no raise at all, and in the Senate, there was a meager raise that left out or excluded every single person who is taking District Court cases. Now that is the majority, vast majority, of bar advocates," said Lowell-based Jamal Aruri.
Last week, the Senate adopted a budget amendment from Sen. Lydia Edwards (# 863) that boosts hourly pay rates for bar advocates, but only for certain cases. It would raise hourly rates for murder and mental health cases by $10 per hour, and Superior Court cases by $5.
"We're looking at the toughest cases that are hardest to get bar advocates on, which include mental health, murder cases, and they've gone up each $10 an hour each. Which is, considering the amount of 2,000 hours is allotted for each attorney, this is a significant increase," Edwards said last week. She said she was aware of hopes that "we can go as high and for every single type of case as well, but we want to make sure that we'd rather be incremental and permanent than to do something so high and then have it come crashing down."
Asked by the News Service Tuesday about Edwards' amendment, O'Brien said "it's not enough."
"It's not enough and it completely ignores the District Court, which is where mostly every case starts out, even something more serious like a murder case," she said. "It's the busiest court. And in New Hampshire if you represent someone with a simple OUI, it's $125 an hour. But here you can represent someone in a murder, and it's $120 an hour."
She added that Sen. Liz Miranda of Boston had another amendment (#852) to increase hourly wage by $35 across the board for every case type, which "we thought was gaining traction," but it was withdrawn.
The Legislature has focused its limited floor deliberations early this year on a series of bills appropriating money to accounts that were underfunded in the annual state budget agreed to during the summer of 2024.
Colin A. Young and Michael P. Norton contributed reporting.
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