Top lawmakers weighing bar advocate work stoppage

Listen to this article

Calling it a “$100 million issue,” top legislative Democrats say they are discussing the impacts of a work stoppage by attorneys who represent indigent defendants, but have yet to reach any consensus on private attorney pay.

“On the request side of it, if we were to grant what some folks have been requesting — and it’s a little challenging, because there’s a lot of different entities out there having different requests, but if you take the largest request that’s been out there, it’s a $100 million issue,” House Ways and Means Committee Chairman Aaron Michlewitz told reporters on July 16.

Hundreds of bar advocates stopped taking new court-appointed cases in late May to protest their pay rates, which they say are far lower than those in neighboring states. The private attorneys handle about 80 percent of the overall public defense caseload in Massachusetts.

Some courts have been forced to release unrepresented defendants as a result of the work stoppage.

In mid-June, the Committee for Public Counsel Services filed an emergency petition that said there were over 850 defendants without counsel in Suffolk and Middlesex counties, calling on the Supreme Judicial Court to release them. The petition was meant to trigger the so-called Lavalle protocol, a process established by the Supreme Judicial Court in 2004 in Lavallee v. Justices in the Hampden Superior Court that requires the state to release pretrial defendants who have not been assigned a lawyer within seven days of being detained.

Asked on July 16 if there was any possibility of additional funding for bar advocates to get them to begin taking cases again, Gov. Maura T. Healey called the situation “very concerning.”

“It’s a matter of public safety. It’s also a matter of due process, and people are entitled to representation,” Healey said, calling for a “swift resolution.”

“I think money is part of it, absolutely, but the question is, how much more money and when? And that’s something that I know is the subject of analysis and discussion right now, but I remain of the view that we’ve got to see the parties resolve this,” Healey told reporters at an unrelated event.

Neither legislative budget writers nor Healey have dictated a specific figure they think the attorneys should be paid. Healey said on July 14 she would “do everything [she] can” to get bar advocates back to work.

Michlewitz said on July 16 that he had been “having conversations” with his Senate counterpart — Ways and Means Chair Michael Rodrigues — about the issue.

The state has more than $8 billion in cash reserves, and budget writers are assessing the economic and federal funding outlooks. Michlewitz said “we’re trying to prepare for what could be a difficult fiscal year.”

Michlewitz called a $100 million ask “obviously a huge discussion point.”

“We’re working through it,” he said. “We understand the challenges, and we certainly have those concerns. I wish we had had further conversations prior to our budget cycles, both in the House and the Senate, but that’s the circumstances that we are in right now.”