Some courts in Massachusetts are still operating without any defense attorneys present to take on the backlog of cases of indigent defendants — a “crisis” that is being addressed by temporary pay incentive programs.
“There continues to be a shortage of available defense counsel and, as this Court stated in its order, the ‘shortage of available defense counsel [is] caused in large part by inadequate compensation rates,’” the Committee for Public Counsel Services reported to the Supreme Judicial Court, the state’s highest court, in a March 25 filing.
An incentive program run by the CPCS entitles attorneys in good standing with any bar advocate program to a one-time $500 payment for each additional case they take on in Suffolk and Middlesex counties through June 30 “or until there are no longer any defendants in these courts awaiting counsel, whichever comes first.”
“The fact that they are currently offering this incentive pay suggests that we are not out of this crisis … and the legislature will have to continue to address these issues,” Shira Diner, a clinical lecturer in law at Boston University who has been involved in bar advocacy, told the Herald.
The incentive structure is based on multiples of five cases from the Criminal Trial Support Unit’s unassigned defendants’ list, where bar advocates can take on five, 10, or 15 such cases for a possible maximum of $7,500 in incentive bonuses — 15 cases at $500 each.
Bar advocates are private lawyers who take on the cases of indigent defendants on a contract basis.
A recent filing by the CPCS to the Supreme Judicial Court, the state’s highest court, said that as of March 25 there were no Boston Municipal Court defendants on their list as not having counsel.
But that hasn’t been the usual case: between Feb. 20 and March 24, the BMC reported 44 unrepresented defendants, with the majority being in the Roxbury, Central and South Boston divisions. Middlesex district courts reported 59 unrepresented defendants, with most being those at Cambridge District Court.
The agency also reported that its own lawyers, who are staff attorneys who represent indigent defendants who split the total load with bar advocates, in both counties “continue to be near capacity.”
As of that March 25 filing, 185 eligible attorneys had applied to the incentive program, requesting 2,475 cases.
A long history
Pay for bar advocates became a serious statewide issue by the end of May 2025. In early July of that year, the SJC initiated what is known as the “Lavallee Protocol” as a means of disposing a backlog of indigent criminal cases due to a work stoppage, a kind of a strike, by bar advocates.
This protocol set timelines for how long criminal defendants could be held without legal representation, and allowed cases to be dropped if a defendant went too long without legal representation, which they are constitutionally entitled to.
But even the significant pressure of hundreds, then thousands, of criminal defendants being released or their cases dropped did little to move the needle on a permanent solution to the problem.
As the work stoppage dragged on, bar advocates and state legislators continued to point fingers at one another. State Sen. Lydia Edwards, a Boston Democrat and co-chair of the Judiciary Committee, told the Herald in July 2025 that “What I would love to see is them get back to work in good faith, and a commitment from us in good faith to work on an increase in their wages.”
Last August, the state Legislature passed and Gov. Maura Healey signed a bill into law that raised district court-level bar advocate pay by $10 per hour, from $65 to $75, and that would give an additional $10 per hour raise to $85 later this year.
Sean Delaney, an attorney who has served as a leader of the movement for bar advocate pay increases, called the raise a “slap in the face” that ignored the financial pressures bar advocates face, which includes law school debt and paying for their own benefits out of pocket.
The CPCS appealed to the Supreme Judicial Court to help solve the issue, but the court declined to take direct action and said that the issue is in the hands of the Legislature.
The SJC wrote in its decision that CPCS failed to prove “the existence of extraordinary circumstances that would justify the judicial intervention it seeks.”
The meaning of pay
Diner said that while the pay increase signed into law is real money, the monetary increase can’t be taken at face value. This is contract pay, which means that it goes toward paying down law school debt, funding office rents and supplies, and a large portion set aside to pay taxes and medical insurance.
“For whatever increase there is, you can’t look at that as a take-home increase,” Diner told the Herald. “We pale in comparison to other states.”
Pay for bar advocates in Massachusetts, the most populous state in New England, is up against strong competition from neighboring states: their counterparts in Rhode Island make $112 per hour, in New Hampshire make $125 per hour and in Maine make $150 per hour, according to Defender Services Office Training Division in Washington D.C.
“We’re losing people,” Diner said. “People who live in the northern part of the state, why wouldn’t they go to New Hampshire? Those who live in the south, why wouldn’t they go to Rhode Island? And if they’re in the western part of the state why wouldn’t they go to New York?”
She added that bar advocates who are doing this work “are not people who are trying to get rich.”
“This is really hard work, really important work, representing poor people charged with crimes … They do this work because they believe in this work,” she said. “This situation is a really dire crisis in institutional proportions. Temporary short-term solutions are not going to fix the problems that we are facing.”
