Case dismissals likely as bar advocate pay negotiations at standstill

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Correction: This story has been updated to reflect Dana Goldblatt’s role as a coordinator of bar advocates’ lobbying effort, not the work stoppage as a whole.

Lawyers across Massachusetts who stopped taking on new indigent clients this spring over a pay dispute say that a statement put out by Gov. Maura Healey on Wednesday set back negotiations.

Healey’s statement called on the state’s bar advocates — lawyers who act as independent contractors representing defendants who can’t afford an attorney — to get “back to work” while continuing to negotiate with state legislators, who set their pay rate. But bar advocates say the statement was misleading, and on a call later that day, decided they would no longer actively pursue negotiations with state legislators via the lobbyist they had hired out of pocket, according to an attorney on the call.

“We’re all working on the cases we have, we’re just not taking new cases,” Dana Goldblatt, a Northampton attorney who is among those who chipped in for the lobbyist, told The Shoestring.

This has been true since late May, when many bar advocates across the state decided to stop working “duty days,” during which they station themselves at district courts to take on new cases as they come in. 

After Healey’s statement, the group that had hired a lobbyist told her to stand down, Goldblatt said.

“Maura Healey is acting as if we should start taking cases again because there are talks,” Goldblatt said. “There are no talks. And no, we are not going back just because she pretends there are negotiations.”

The effects of the work stoppage are not being felt evenly across the state. 

Bar advocates take the majority of indigent client cases in Massachusetts, so in areas with significant participation in the work stoppage, public defenders have not been able to keep up. 

In Suffolk and Middlesex counties, a judge recently dismissed cases en masse for defendants who have not had an attorney for over 45 days and released others held in jail for more than seven days without an attorney. Goldblatt said she expects judges in Hampden and Essex counties will be the next to invoke the “Lavallee protocol,” as it’s known — an action named for a 2004 case related to lack of access to timely representation in Hampden County. She described Hampshire County’s bar advocates as “uniquely scabbing.”

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Wage complaints are not new for the state’s bar advocates. Few jobs available to practicing attorneys pay lower than the $65 hourly rate paid to district court bar advocates, and that rate has only been in effect since 2022.

That year, a group of defendants’ lawsuit against the Hampden County district courts reached the Supreme Judicial Court, where Judd Carhart, a special master for the court, reported at length on the issues impacting defendants’ right to counsel in the county. Carhart described the situation in Holyoke and Springfield as “a threat to Hampden County defendants’ constitutional rights that warrants immediate intervention,” recommending that the pay rate for bar advocates in those cities be raised to $120 per hour — a rate closer to that of neighboring states. 

“I believe that the problem can only be solved by allocating substantial resources to the Committee for Public Counsel Services and the trial courts,” Carhart wrote. “Western Massachusetts has not received the necessary funding to keep up with the ever-increasing demands of the criminal justice system.”

This year, the Committee for Public Counsel Services, the group that employs public defenders and contracts with bar advocates, presented a budget to the Legislature that countered Healey’s proposed cuts with a proposal that would have raised bar advocate pay by between $12 and $30 an hour, depending on the type of case. Those raises would’ve cost the state $28.4 million.

In its presentation to legislators, CPCS said there is ongoing attrition of bar advocates statewide. That’s because younger, debt-saddled attorneys have not been replacing their elders faster than they have been retiring, opting instead for better paid work, the organization said. Despite lawmakers’ efforts to include raises of varying sizes into the budget, none made it to the governor’s desk in the final budget bill.

Even if CPCS had gotten its proposed budget, it’s unclear whether that would have solved the current problem. Both Goldblatt and Lisa Newman-Polk, an attorney who takes better compensated parole cases for life-sentencees as a bar advocate, cited a demand for a $35/hour raise, which Goldblatt said arose “organically” out of an unwillingness to do bar advocate work for less than $100 an hour. That proposal would cost nearly $100 million annually.

“Bar advocates are not unionized,” Newman-Polk stressed. “Everyone is independent contractors making their own decisions about what work they’re willing to do.” 

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Isaac Mass is a private-practice attorney who took bar advocate cases at Greenfield District Court for 14 years. He told The Shoestring that this month, only one “duty day” was covered by a bar advocate at the court, and it was not a local attorney.

“I think there are probably a whole host of people who are out who are rapidly approaching 45 days without counsel,” Mass said. 

Mass said that his concern was for the defendants. When a case is dismissed without prejudice, as occurs when a judge invokes Lavallee, that case can be reopened well after the critical initial window for gathering evidence has closed. Those defendants then face much worse odds of dismissing potentially false charges, he said.

Mass said he had had a positive meeting with state Sen. Jo Comerford, D-Northampton, about the issue, and had briefly spoken with state Rep. Natalie Blais, D-Deerfield, in the spring, who he said had not been familiar with the problem. Other bar advocates, he said, went to legislative breakfasts and coffee hours with legislators to speak on the need for better funding.

“At least in Franklin County, we’re somewhat sympathetic to the position the legislators are in,” Mass said. “From their point of view, it’s late in the budgeting cycle for this issue to be raised for them. But this issue has been raised for years.”

On Thursday, state Sen. John Velis, D-Westfield, issued a statement that the bar advocates’ push for better pay cannot “come at the cost of our Commonwealth’s safety,” referencing the release of defendants in Suffolk County. 

The statement went on to say that Velis, a member of the Legislature’s Joint Committee on the Judiciary, supported an effort in the Senate to include a raise for bar advocates in the budget, which ultimately failed, and that the senator “continues to have conversations with legislative leaders on charting a path forward for bar advocates.”

Neither Velis nor Comerford returned requests for comment on Friday.

In the meantime, Mass says he’s taking better paid work, like grant-funded cases for the elderly and victims of domestic violence, which pay $70 per hour, or even appellate cases in Maine, which pay $150 per hour.

“Might I have to drive up to Maine to make an oral argument? Yeah, but 90% of that appellate work is from your office,” he said.

Mass said he’s afraid it will take a tragedy to get the Legislature to act, which could take months if lawmakers take their August recess. Tragedy or no, Newman-Polk said failure to act would be a dereliction of legislative responsibility.

“Attorneys handling bar advocate cases are trying to uphold the Constitution on each of their little backs individually,” she said. “But the legislature is responsible for allocating funding to uphold the Constitution.”

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