Massachusetts Supreme Judicial Court Hears Arguments on Defense Attorney Pay Raise

The Massachusetts Supreme Judicial Court is hearing arguments about whether it can order a pay raise for defense attorneys to protect the constitutional right to counsel amid a pay dispute that has left thousands unrepresented and triggered hundreds of case dismissals.

At issue is whether judges can order pay increases for private attorneys who represent people experiencing poverty, known as bar advocates, when this power has historically been reserved for the state Legislature. In August, legislators provided bar advocates a modest pay raise, far less than they had sought. That raise has not been enough to bring lawyers back to work to end the work stoppage.

The Committee for Public Counsel Services (CPCS), with assistance from defense attorney groups, argues that the Massachusetts Legislature has failed in its duty and that the court should ensure defendants' constitutional right to an attorney is not violated.

Several justices, however, feel that the court would overstep its boundaries by intervening.

“This is ordering the Legislature to go find some money and redo its budget,” Justice Dalila Argaez Wendlandt said in comments recorded by The Boston Globe.

The hearing on the matter comes after open questions about how long the crisis will continue if no action is taken. On Wednesday, Nov. 5, a lawyer for CPCS said the number of unrepresented defendants has decreased to approximately 900, far less than the peak of more than 3,000 over the summer and a mark of around 2,000 only a few weeks ago. A temporary incentive meant to attract some lawyers from other counties to take cases in Suffolk and Middlesex, where the crisis is at its peak, runs out Nov. 17.

According to The Boston Globe, the seven-justice panel of the state's highest court took the case under advisement following oral arguments. Justices will need to address the constitutional issues of due process and separation of powers as they reach a decision. There's no set timeline for when the justices will decide on the matter.