Massachusetts Assigned Counsel System Faces Systemic Challenge

In June, 2004, the law firm of Holland & Knight began systemic litigation to challenge the assigned counsel system in Massachusetts.  At issue in the suit are the hourly rates of compensation paid to court-appointed attorneys.  The rates, as determined by the Massachusetts legislature, have remained essentially unchanged since 1986 and are the lowest statutory rates in the nation. 

Statewide, the low rates are prompting attorneys to leave their assigned counsel practices, significantly reduce the number of appointments they will accept, and refuse to appear for duty day assignments in court, leaving some indigent persons in custody and without representation.  Holland & Knight, working entirely pro bono, enlisted the assistance of The Spangenberg Group to study the assigned counsel system in Massachusetts.  Following completion of the initial study, Holland & Knight filed an original petition in the Massachusetts Supreme Judicial Court (SJC) alleging that the system is unconstitutional because, with counsel paid at the current hourly rates, it places indigent children and adults at a severe and unacceptably high risk that they will be deprived of their right to counsel under Massachusetts law.  Arianna S., et al. v. Commonwealth of Massachusetts, et al., Petition for Relief, Supreme Judicial Court for Suffolk County (June 28, 2004). 

Massachusetts’ indigent defense system is overseen by a legislatively-created and state-funded body, the Committee for Public Counsel Services (CPCS).  CPCS provides legal representation to indigent defendants, parents and children through a hybrid system of approximately 2,400 private attorneys and a full-time, staff public counsel division with approximately 110 staff attorneys who primarily handle felony cases in the superior courts.  The private bar provides representation in the vast majority of matters for which CPCS is responsible, including adult criminal, juvenile delinquency, child welfare, and mental health cases.  Attorneys are paid $30 an hour in district court criminal and juvenile delinquency cases; $39 in superior court criminal, care and protection, and mental health cases; and $54 an hour in murder cases.  It is estimated that private counsel provide representation to more than 90 percent of the over 200,000 new criminal and civil cases assigned to CPCS each year. 

During April and May of 2004, TSG interviewed dozens of individuals involved in Massachusetts’ system for providing assigned counsel for indigent adults and children.  TSG also surveyed assigned counsel programs in a number of counties and, working with Lawrence H. Stiffman, owner of Applied Statistics Laboratory, Inc., fielded an electronic survey to court-appointed attorneys across the state that inquired about their work performed for CPCS, caseload, support staff, expenses, and other information regarding their practice.  In addition, TSG conducted a comprehensive study of the child welfare system in western Massachusetts in 2003 on behalf of CPCS to examine the causes of a growing shortage of attorneys available to handle child welfare cases in the juvenile courts in western Massachusetts. 

Accompanying Holland & Knight’s petition to the SJC and cited extensively throughout, Robert Spangenberg’s affidavit documented TSG’s study and findings, which included the following:  (1) the low rates of compensation are causing attorney shortages; (2) the low rates of compensation discourage attorneys from taking the time to perform necessary legal work that could affect their indigent clients’ cases and fully preserve their constitutional rights; and (3) the low compensation has forced a number of assigned counsel across the state to go without the basic tools of a lawyer’s trade such as a private office space, adequate research tools and support staff.

In early May 2004, after two days passed where no attorneys appeared in Hampden County District Court (Springfield, MA) for duty days, where new assignments are made, and at least 19 indigent defendants were being held in custody without counsel, CPCS filed its own petition in the SJC, joined by the ACLU, on behalf of unrepresented indigent criminal defendants in Hampden County.  Nathaniel Lavallee, et al. vs. The Justices of the Springfield District Court, Massachusetts Supreme Judicial Court (May 5, 2004).  The case was recently argued before the full bench of the SJC, and the number of indigent defendants involved since the original filing has grown to over 50.  On July 2, after considering the parties’ briefs and oral arguments, as well as the briefs of various amici curiae, the SJC declared that the Lavallee petitioners are being deprived of their right to counsel under the Massachusetts Declaration of Rights.  On July 8, 2004, counsel for respondents and petitioners appeared before a single justice of the SJC to address the issue of appropriate relief.

The petitioners in the Holland & Knight lawsuit are minor children in foster care and an indigent father, all parties in care and protection proceedings, and an indigent criminal defendant.  Among other things, the petition seeks as relief the appointment of a special master to conduct hearings and hear further evidence regarding the extent of the statewide crisis.  Fifteen local and statewide bar and legal organizations have sought to join the suit as amici curiae.