Even after passage of a pay raise last month, some private Massachusetts lawyers who are assigned by the state to defend indigent clients are still refusing to take on new cases as they entertain the idea of unionization.
Some of the 2,600 “bar advocates” have had trouble keeping up with the growing caseload and feel that the recently passed pay increases aren’t enough.
“There are hundreds of bar advocates who have said, until this issue is resolved — and it only can be resolved by the legislature — we are not taking any duty days, we’re not taking any new cases,” said Sean Delaney, a bar advocate for three decades and partner at Rappaport & Delaney.
As of August 27, there were 4,252 unrepresented defendants in the municipal and district courts statewide, with 87 of those in custody, according to the Committee for Public Counsel Services, which assigns the attorneys.
Since May 27, there have been more than 6,100 unrepresented defendants in District and Municipal courts.
Defendants held in custody without an attorney must be released after seven days. Cases are dropped if there is still no representation after 45 days, though charges can be refiled later.
This summer, state lawmakers raised the hourly pay for bar advocates by $20 over two years. A $10 increase went into effect last month August and another $10 raise will occur in August 2026. That will raise the pay for district court cases to $85 per hour; for murder cases the new rate will be $140 per hour. By comparison, the hourly rate for bar advocates in Maine is $158; in New Hampshire it’s between $125-$150; and in Rhode Island, the range is $112-$142.
“I don’t know how anyone can look at the work that’s done by dedicated bar advocates and say that is adequate pay for the most important work that’s been done to represent poor criminal defendants in the state of Massachusetts,” Delaney said. He said bar advocates have started conversations with SEIU Local 888 on the possibility of unionizing.
Tom McKeever, president of the SEIU Local 888, said Massachusetts is a shining example for other states on many issues. But the paying of bar advocates is an area that needs attention.
“We should be paying our people appropriately and I could tell you that bar advocates [in Massachusetts] are the lowest paid bar advocates in New England,” McKeever said. “Unions are looking to provide solutions to help in those endeavors.”
State-employed public defenders are also looking to form a union.
Bar advocates and public defenders serve the same basic purpose. However, bar advocates are private attorneys who are independent contractors, while public defenders are employed by the state. The bar advocates handle about 80% of the indigent caseload. Prisoners in the state prison in Norfolk released a surveylast month detailing complaints about the assistance they were provided by bar advocates.
Public defenders with the Committee for Public Counsel Services have been working with SEIU Local 888 and the National Association of Government Employees to include a ballot question allowing them to unionize. The ballot question was was approved Wednesday by Attorney General Andrea Campbell’s office; supporters will now need to collect 75,000 signatures to bring the issue before the legislature.
Both the SEIU and the NAGE pledged $1 million to help in that effort. The ballot initiative would be voted on in fall 2026 if the legislature does not enact it.
Delaney said there have been conversations of forming a non-profit association of bar advocates, as well as a political action committee to support candidates for the Massachusetts Senate and House who support increased pay for bar advocates.
The classification of bar advocates as independent contractors will make unionization an uphill battle. But in the interim, McKeever said, the creation of an association would allow bar advocates to enjoy some of the benefits of a union, helping them with health benefits and advocating for pay increases. But they could still be terminated for any reason.
“From the conversations that I’m having with bar advocates, they’re OK with [that],” McKeever said. “But they would like all the other benefits that are made available to union members.”
Since Memorial Day, many bar advocates have refused to take on new cases.
Delaney said that if the low pay and high caseloads continue, the number of bar advocates will continue to drop.
“Without a fair increase, this system will no longer exist,” Delaney said. “We’re seeing the nearing of the end of this public defense system in Massachusetts. It’s all because there’s one common denominator to all of this. It’s the low pay.”
Still, Delaney said he is encouraged by the acknowledgement by state lawmakers that there is a problem. In recent weeks, Delaney and other bar advocates have met with Lt. Gov. Kim Driscoll as well as some staff members of Gov. Maura Healey and Senate president Karen Spilka.
“We’re starting to be listened to and being invited in,” Delaney said. “We want to have a seat at the table to advocate for ourselves.”
