Attorney work stoppage sends court officials scrambling

Boston Globe

13-07-2025

It's a
Thousands of such defendants in criminal cases in Middlesex and Suffolk counties have gone without representation, more than a month for some, a potential violation of their constitutional right to counsel that has forced judges to release defendants otherwise eligible to be held on high bail.
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Soon, judges may start dismissing cases outright, based on an emergency protocol invoked in early July by the Supreme Judicial Court.
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'Things are going to get worse before they get better,' Coffey said in court as he weighed which defendants must be released from jail because there was no way of providing them a lawyer.
The stoppage has raised questions about how the state organizes its indigent defense system. In many other states, the majority of defendants who can't afford an attorney are represented by a public defender from a government agency, and the court only appoints private attorneys if there's a conflict of interest, according to Aditi Goel of the Sixth Amendment Center. Only Massachusetts, Maine, and North Dakota rely this heavily on private attorneys, she said.
Other states, such as New York and Ohio, task each county with choosing their own approaches, using any combination of public defenders, court-appointed lawyers, or contracted nonprofit organizations.
'There's no correct answer,' said Goel, a former public defender in Boston. 'But this is an opportunity for Massachusetts to look at how it structures its system as compared to other states.'
Massachusetts had a similar work stoppage in 2004 in Hampden County, which led to the creation of what is known as the Lavallee protocol. The Supreme Judicial Court invoked the protocol two weeks ago, affirming the right to counsel. It requires judges to release defendants who've been held for more than seven days without access to a lawyer, and to dismiss cases of those who've gone without an attorney for more than 45 days. Hearings to release people through the seven-day rule began this past week, and separate proceedings to dismiss cases will start July 22.
But already, the number of defendants affected by the current stoppage has far outpaced those affected a decade ago.
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'This is a problem that has happened in the past and unless there is a structural shift the concern is that it will happen again in the future,' Goel said.
Maine, which has a similar structure for indigent defendants, also was hit with a work stoppage three years ago. In response, the state hired more staff public defenders and nearly doubled its pay rate for private attorneys, to $150, from $80.
'You have to create a healthy mix,' Goel said.
Massachusetts officials say they are discussing ways to resolve the crisis with the private attorneys. But the new state budget recently adopted did not include a pay raise for bar advocates, and a resolution doesn't appear to be nearing. In a statement, a spokesperson for Governor Maura Healey said the governor expressed concern and urged the Legislature and bar advocates to reach a resolution.
In Massachusetts, bar advocates in district court make $65 an hour, much less than the equivalent in surrounding states. They are seeking a $35-an-hour raise.
'We're sick of being overlooked and taken advantage of year after year after year,' said Elyse Hershon, a bar advocate in Suffolk County who has stopped taking cases. 'We keep the system intact and we have to be paid in accordance with that.'
The chair of the state Senate Judiciary committee, Lydia Edwards, an East Boston Democrat, said tactics by bar advocates, particularly during a difficult budget cycle and cuts to federal funding, have bothered Beacon Hill leaders.
'There's a real anger about the bargaining chip being human capital and civil liberties, and that being the reason why we're supposed to pay $100 million dollars,' she said, referencing the amount legislators calculate the $35-a-hour raise would cost.
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With the stoppage showing no sign of ending, the court system, judges, staff public defenders, and prosecutors are scrambling to manage cases under the Lavallee
by the end of July, judges will have to decide whether to dismiss outright hundreds of cases.
'We are constantly rearranging the deck chairs on the Titanic,' Rebecca Jacobstein, of CPCS, said in court this past week.
Over the last week, the crisis was evident in courtrooms from Boston to Lowell. Defendants begged judges for lawyers; some are held, others released. The public defenders with CPCS say they will staff the most serious cases, a pledge that will be challenged as new cases come before the courts.
This past week, about 20 people had the first hearings under the protocol, with more than half remaining in custody because either they were assigned a lawyer or CPCS was directed to prioritize their cases. Several of those released were accused of drug offenses or violating probation, though one released man is accused of putting his wife in a headlock until she passed out, and another of stabbing someone with a switchblade. Judges ordered that those men to home confinement monitored by GPS.
Meanwhile, a third county, Essex, is 'teetering' on the verge of having too many defendants without representation, Jacobstein said. So, her agency may soon seek to have the recent SJC guidance extend to there as well.
The trial court said hearings on releasing defendants will fall into a regular pattern: every Thursday in Boston Municipal Court's central division for all Boston defendants and every Wednesday in Lowell District Court for defendants in Middlesex County and in Suffolk outside of Boston.
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The more consequential hearings on dismissal of cases will begin July 22. There are more than 1,000 defendants who have not had access to a lawyer, and that number is only expected to grow.
If a case is dismissed, any conditions of release meant to ensure public safety are removed as well, including GPS monitoring and orders for a defendant not to contact any alleged victim.
'The court has no hold over you,' said Shira Diner, president of the Massachusetts Association of Criminal Defense Lawyers. 'It's a problem for the victims. It's a problem for everyone.'
Coffey, the judge in Lowell, faced that dilemma repeatedly last week.
At one point, Coffey weighed Jacobstein's concerns about representing a man accused of violating probation after facing a charge of assault with a dangerous weapon. If she took the case, she suggested, her workload would be full, and she could not handle new ones, including more serious cases.
'We've already taken two cases today, that's all we can do,' she said.
But Assistant District Attorney Amelia Singh argued the man must be held, she argued, and that means he needs a lawyer.
'We are in crisis, and this is a public safety issue,' she argued.
Coffey ordered the man back to jail, deeming the public defender agency must take his case.
'The Lavallee protocol — it's a game of tag," Coffey said. 'Someone has to be the bad guy, and I'm it.'
Sean Cotter can be reached at