BBA Files Amicus Brief In Support of Just Compensation for Appointed Criminal-Defense Counsel

Citing an on-going crisis in the Commonwealth’s criminal courts, the Boston Bar Association today filed an amicus brief urging the state’s highest court to take decisive action to address a shortage of attorneys available to represent indigent criminal defendants, as is constitutionally required. Filed in the case of Freddie Carrasquillo v. Hampden County District Courts (SJC-12777), the BBA’s brief traces the long history of underfunding of such defense work-now provided through the Committee for Public Counsel Services (CPCS), often by appointing private bar advocates. That history includes the so-called Lavallee protocol, instituted by the Supreme Judicial Court (SJC) as part of a 2004 case by that name and once again in effect today. Lavallee requires the Commonwealth to release from pretrial detention all indigent defendants who do not receive a lawyer within seven days, and the courts to dismiss without prejudice the cases of those indigent defendants who do not receive a lawyer within 45 days.

The brief, 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, argues that, 15 years later, a shortage of lawyers for indigent criminal defendants, in Hampden County and elsewhere, continues to be a significant problem, and that the emergency Lavallee protocol cannot offer a permanent cure to “the chronic problem of an underfunded criminal justice system.” Although hourly rates for bar advocates have risen since Lavallee, the BBA brief demonstrates that the increases haven’t kept up with inflation or been nearly enough for many lawyers to afford to work as bar advocates.

The BBA uses the opportunity to strongly urge the Legislature to “act promptly and raise bar advocates’ hourly rates to a competitive level” but goes on to recommend that the SJC consider “mandat[ing] the expenditure of funds at a rate sufficient to incentivize enough lawyers to become bar advocates.” This step represents a continuation of the BBA’s advocacy on the right to counsel for indigent defendants.

“For decades, we have supported appropriate compensation for CPCS attorneys and bar advocates in order to ensure due process and the fair and efficient administration of justice,” said BBA President Christine M. Netski of Sugarman Rogers, “and an effective response to this persistent crisis in our justice system is long overdue.”

The brief cites the detrimental effect of insufficient pay on lawyers’ capacities and well-being. It also makes the argument that systematic underfunding for indigent defense threatens public safety-especially in those instances in which prosecutors seek to have a defendant held specifically on the grounds of dangerousness.

“The BBA argued in our 2004 amicus brief in Lavallee that the justice system cannot work fairly unless defense counsel are paid fairly,” Neil Austin said. “Unfortunately, little has changed, and therefore we must again call upon the Court to act in the interest of justice.”

The Carrasquillo case, as well as two related consolidated cases from Worcester County, will be argued before the SJC on November 7, with a ruling expected by March.

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.