MAPAC sues to block law ‘criminalizing’ counsel fee protests

In brief

• Massachusetts bar advocates filed suit challenging a law targeting coordinated work stoppages over low indigent defense pay.
• Plaintiffs argue the statute violates federal antitrust law, free speech protections, and due process rights.
• The law allows evidence of antitrust violations when 25 percent or more appointed counsel refuse new assignments.
• MAPAC says low compensation has driven hundreds of attorneys out of indigent defense work in Massachusetts.

The newly formed Massachusetts Association of Private Appointed Counsel is seeking declaratory and injunctive relief at the Supreme Judicial Court, complaining that a state law enacted last summer threatens criminal and civil antitrust penalties against lawyers who, in protest of low pay, stop accepting cases representing indigent clients.

The suit seeks to block the enforcement of G.L.c. 211D, §11(a)(2), which provides that an “agreement between private bar advocates to refuse to compete for or accept new appointments or assignments unless the rates of pay under this section are increased shall be evidence of a violation of section 4 of chapter 93.”

The statute further provides “that evidence of an agreement between private bar advocates to refuse to compete for or accept new appointments or assignments unless the rates of pay under this section are increased shall include, but shall not be limited to, any county where not less than 25 per cent of private bar advocates are refusing to compete for or accept new appointments or assignments.”

MAPAC’s complaint alleges that the use of G.L.c. 93, §4, the state’s antitrust statute, as a hammer against bar advocates is unlawful.

“The amendment’s sole purpose is to impose civil and criminal antitrust penalties on private assigned counsel who cease taking new assignments due to unconscionably low rates and engage in protected speech to advocate for fair and adequate compensation for their labor,” the complaint states.

MAPAC is represented by Monica R. Shah and Jacob A. Bezner, of Zalkind, Duncan & Bernstein in Boston. Shah and Bezner also represent six veteran criminal defense attorneys — including MAPAC’s president, Sean T. Delaney — who are individual plaintiffs in the case.

“We believe that statute violates state antitrust laws because it’s not [in harmony] with federal antitrust laws,” Shah says. “It should not prescribe criminal prosecution and related penalties for individuals who are engaging in their right not to work.”

Shah says members of MAPAC are concerned that if private assigned counsel engage in work stoppages going forward, the state could begin enforcing §11(a)(2) and individuals could face criminal prosecution.

Delaney served as a bar advocate for 29 years but stopped taking new District Court appointments in May 2025 in protest of the low pay, according to the complaint.

“Because of §11(a)(2), Attorney Delaney believes that he is subject to an elevated risk of civil and criminal liability under state antitrust law for his public statements in support of raising the pay rates of private assigned counsel,” the complaint states. “Despite §11(a)(2), Attorney Delaney would be willing to participate in a future work stoppage to advocate for better pay for private assigned counsel but he would be unwilling to speak publicly about his participation in such a work stoppage because of the consequences raised by the statute.”

Labor and employment lawyer James A.W. Shaw thinks MAPAC has a plausible claim.

“There is a concept under federal antitrust law — which extends to not just employees but also to independent contractors — that says labor is a commodity and, therefore, when people get together collectively to try an improve their wages, that is not governed by the antitrust law,” the Segal Roitman lawyer says. “State antitrust law is modeled on federal antitrust law. [Section §11(a)(2)] says that when the private appointed counsel withhold their labor to improve their working conditions, that’s an antitrust violation [under state law]. But that’s completely inconsistent with federal law.”

The suit invokes the SJC’s jurisdiction under G.L.c. 214, §1, which recognizes the court’s original jurisdiction for claims seeking equitable relief, and G.L.c. 231A, §1, which authorizes original jurisdiction in declaratory matters.

The plaintiffs’ complaint asserts claims alleging §11(a)(2) violates federal antitrust law and free speech rights under both the U.S. Constitution and the Massachusetts Declaration of Rights, and is void for vagueness in violation of due process.

“Because §11(a)(2) regulates protected speech under the guise of advancing the Commonwealth’s interest in antitrust regulation, it is unconstitutionally overbroad,” the complaint states.

In addition to seeking a declaration that §11(a)(2) is unconstitutional, the plaintiffs are seeking a declaration that “the extension of the Massachusetts Antitrust Act, as set forth in G.L.c. 211D, §11(a)(2), to punish private assigned counsel who engage in future work stoppages must be struck as facially invalid under the labor exemption to the Massachusetts Antitrust Act and related federal laws … .”

The Attorney General’s Office did not respond to a request for comment on the suit.

MAPAC was established late last year to represent the interests of private attorneys who accept cases on behalf of indigent clients. Last May, a number of lawyers who contract with the Committee for Public Counsel Services stopped taking new cases to protest pay rates that they claimed had fallen severely out of step with those of their peers in neighboring states.

In August 2025, Gov. Maura T. Healey signed a supplemental budget package that included a provision raising the pay of bar advocates working in District Court from $65 to $75 an hour as of Aug. 1, and to $85 an hour on Aug. 1, 2026.

According to MAPAC, bar advocates represent approximately 80 percent of the state’s indigent defendants, yet compensation rates remain low especially when compared with the hourly rates paid by surrounding states. The low pay combined with a “constant struggle” to recruit a sufficient number of qualified attorneys has resulted in the loss of 400 attorneys from the program over the last decade, the organization says.

In May 2025, hundreds of attorneys stopped taking new cases, prompting the Legislature to enact G.L.c. 211D, §11(a)(2).

On March 16, the SJC rejected a claim brought by CPCS asserting extraordinary circumstances created by so many bar advocates refusing to accept assignments justified authorizing state judges to increase compensation rates above levels set by the Legislature.

Shah says her clients’ case is distinguishable from Committee for Public Counsel Services v. Middlesex & Suffolk District Courts.

“This case has to do with whether [§11(a)(2)] is unlawful and unconstitutional, which is clearly within the purview of the courts and, specifically, the SJC,” Shah says. “We’re in a different posture than [the CPCS] case.”