High court of the Massachusetts to consider increasing the remuneration rates of lawyers of the bar

The hearings would give all the members of the Court for the first time the possibility of weighing on a crisis which has seized the criminal justice system since perhaps, when many private lawyers of the state, called defenders of the bar, have ceased to take new cases because they have requested higher state remuneration rates.

The crisis continued even after legislative action. At the invitation of the state public agency, the judges will now reflect on the extraordinary measure of taking a question of expenditure in hand.

Question is whether judges should grant increases in remuneration for private lawyers. And if so, do they have the power to do it?

Until now, a single court judge has weighed on the crisis. J. SJC Dalila Argaez Wendlandt has set up an emergency protocol for the courts to follow the cases in which a defendant was not appointed lawyer, a constitutional right. But she stopped at the question of whether the courts could order increases.

This obligation was reserved for the Legislative Assembly, which has been unlikely to comply with the requests of the lawyers. In August, Governor Maura Healey signed a package of the Legislative Assembly which gave a modest basic salary increase for lawyers up to $ 20 over two years, a third of what the defenders asked for. But that failed to end up.

Defenders of the bar generally manage business for around 80% of the poor criminal accused in the state, with public defenders of the staff against the State Committee for the public council services covering the rest. Other states manage the question from afar, by choosing so that the staff of public defenders take cases for indigent customers.

The unusual dependence of Massachusets with regard to the defenders of the bar gave these lawyers a major lever effect, and they exercised it by almost universally eliminating the service of defenders of the district courts for the counties of Suffolk and Middlesex, who include occupied courts in Boston, Cambridge and Lowell.

Quickly, public defenders against the Public Council Services Committee were overwhelmed by business, as a growing number of people were accused of crimes without access to lawyers. As these figures increased, Wendlandt implemented the emergency protocol intended to preserve the law of defendants to the lawyer. The hearings held within the framework of the Lavallee protocol – named after a court decision of the lawyer for the last bar stopped taking business two decades – were authorized to release people without lawyers who had been detained for more than a week and to completely reject business after 45 days.

Since then, the crisis has persisted and, in some respects, has worsened.

Some accused have been arrested, released and arrested several times through the protocol, and others have seen their cases dragged for months, which makes them more difficult for their lawyer, once they have one, to invest their case correctly to fight it.

The lawyers who watched the unfolding crisis underlined a recent case in Dorchester which illustrates the chaos that the judgment caused the judicial system. In this case, accused Nelson Foster de Dorchester was arrested at the end of July after allegedly assaulted one of his relatives and threatened with other knives, and the police said they were forced to use a taser to arrest him. But, because he did not have access to a lawyer, he was released from prison in early August.

Four days later, the 39 -year -old was arrested again, for allegedly tried to catch the weapon of a Boston police officer, then spit another officer. He was again charged with criminal assault and was sentenced.

Once again, without a lawyer available to represent him, a judge decided on September 4 to release him. A few hours later, he would be back on a porch outside the houses of his relatives to Dorchester, being again arrested for having raped the restraint orders deposited by the relatives he would have attacked in July.

It was His third arrest in a month and a half, and now he is back in prison.

This is an example of the balancing law, the courts find it difficult to do four months in the judgment of lawyer’s work: how to reconcile the rights of the regular procedure for defendants to a fair judicial system and access to a lawyer with the concerns of victims of crime and violence that are based on the same protection system.

And the problem shows no lighting sign.

“There is still a crisis,” said Jennifer O’Brien, one of the leaders of the judgment. “The figures will continue to grow and business will continue to be rejected. Someone must act.

Before the legislative package was approved in August, the defenders of the bar had won $ 65 per hour at the base. They asked for a salary increase of $ 60 over two years, arguing that it is necessary to align them with the surrounding states. The legislators rather gave them the increase of $ 20 over two years and also agreed to double the number of public defenders on state staff.

Since private lawyers are independent entrepreneurs, there is no binding negotiation process which will result in a resolution, as it would be in a union negotiation. The question was rather whether the increase would persuade enough lawyers to resume the cases and minimize the stop.

Now, more than a month after the approval of increases, more than 3,300 accused do not represent the district courts of the counties of Suffolk and Middlesex, more than 50 in detention. In total, at least 258 people were released in the Lavallee protocol, including 156 in Boston. And the judges rejected at least 890 cases, including 300 in Boston, depending on what the state court system calls for a conservative count last week.

More than 50 additional cases were rejected on Tuesday, including multiple accusations of domestic assault and assault and injuries, several allegations of drug trafficking and two separate kidnapping cases.

Since the start of the crisis, several local judges have had independent increases for lawyers in some cases at $ 100, but it is not quite clear if they have the power to do so. The CPCs praised Thursday’s decision for the full examination of the court.

The Court of First Instance and the Office of the Suffolk District Prosecutor had rejected. The courts have argued in a memoir earlier this week that judges should not be able to unilaterally order increases on individual cases.

The Office of the Prosecutor of the Suffolk district, in his own memory, said: “The power to promulgate appropriate laws and public funds lies outly and exclusively with the Legislative Assembly, and … This constitutional authority must remain in this branch.”

Wendlandt referred these questions to the full SJC on Thursday because it “raises an important question of the law”.

Wendlandt wrote that, even after the entry into force of the revival of August, “it is not clear from the file before me if this legislation will recall the current shortage of defense lawyer, and in the affirmative, on what schedule.”

“The number of indigent criminal defendants not represented remains substantial,” she said.

Sean Cotter can be contacted at sean.cotter@globe.com. Follow him @CotterREporter.