Share this event with friends and colleagues

FOR IMMEDIATE RELEASE: 3/31/2020

Contact: Richard M Page Jr.
BBA/BBF Executive Director
617-778-1916

BBA Statement on SJC Ruling in Carrasquillo, on Lack of Criminal Defense Attorneys

The Supreme Judicial Court released its decision yesterday in Carrasquillo v. Hampden County District Courts, involving a shortage of available defense attorneys that left many indigent criminal defendants in the Springfield District Court without counsel. In keeping with its commitment to due process and the fair and efficient administration of justice, the BBA had filed an amicus brief in the case, recommending that the SJC consider "mandat[ing] the expenditure of funds at a rate sufficient to incentivize enough lawyers to become bar advocates" willing to take such cases.

The Court agreed with the premise of the BBA -- and other amici who filed separately -- that the proper solution to the prospect of a recurring constitutional crisis stemming from lack of available counsel for criminal defendants through the state's public-defender agency, the Committee for Public Counsel Services (CPCS), is to increase the statutory hourly rate of pay for private attorneys who take on those cases.  

To reach that conclusion, they relied on figures from the BBA's brief showing how the inflation-adjusted value of those pay-scales has actually fallen in the 16 years since the SJC's 2004 decision in Lavallee v. Justices in the Hampden Superior Court. The ruling also cites concerns raised in the BBA brief about the impact that overloading CPCS capacity would have on both the quality of representation provided and lawyer well-being. 

Nevertheless, the Court declined to invoke its own superintendence authority in order to adjust those rates upward, as the BBA had urged, instead leaving the matter to the Legislature. The ruling presents a strong case that the Legislature must act to increase not only compensation for private bar counsel but also for CPCS staff attorneys and assistant district attorneys (while acknowledging that some progress has been made on the latter two fronts in recent years).

Said BBA President Christine M. Netski of Sugarman Rogers, "We share the Court's firm belief, as expressed in the ruling's first sentence, that '[t]he right to counsel is one of the most fundamental principles in our criminal justice system,' and we will continue to advocate for appropriate funding to preserve and maintain that right statewide."

The SJC's ruling also vacated an order by a District Court First Justice that CPCS be required to provide counsel in such criminal cases as "the Court deems necessary", as well as any resulting appointments of counsel. The Court held that CPCS attorneys can’t be required to take more cases than the agency determines it has the capacity for, and that when a shortage occurs, either CPCS or the regional administrative justice (RAJ) can trigger the so-called Lavallee protocols by filing a petition with the SJC's Single Justice. 

Following up on their decision in Lavallee, where the BBA also filed an amicus brief, the ruling outlines the process to be followed when a court is affected by a shortage of qualified counsel that interferes with the prompt appointment of defense attorneys to represent those defendants.  This clarifies the process that Lavallee established for such instances, so that trial judges will no longer be left to fashion their own remedies, as occurred here.

The Court took the opportunity to strongly urge Massachusetts attorneys to take such cases, citing both the social benefit, in the form of enhancing the integrity and accuracy of our criminal-justice system, and the benefit to the practice of law, in the form of additional opportunities to acquire courtroom experience. 

The BBA's brief in this case was drafted by two attorneys from Foley Hoag LLP, Amicus Committee Co-Chair Neil Austin and Stephen Stich, and by former Amicus Committee Co-Chair Professor David Siegel of New England Law | Boston.

Amicus Curiae means, literally, friend of the court. Since 1975, the BBA has filed amicus briefs on matters related to the practice of law or the administration of justice. The 2019-2020 BBA Amicus Committee is co-chaired by Neil Austin of Foley Hoag LLP and Erin Higgins of Conn Kavanaugh.

The Boston Bar Association traces its origins to meetings convened by John Adams, who provided pro bono representation to the British soldiers prosecuted for the Boston Massacre and went on to become the nation’s second president. Its mission is to advance the highest standards of excellence for the legal profession, facilitate access to justice, serve the community at large and promote diversity and inclusion.