Judge John F. Coffey during his swearing in ceremony in February 2023. (Photo courtesy DraMatography)
A Lowell District Court Judge yesterday called out the Executive and Legislative branches of government and ordered higher rate of pay for the bar advocate in at least three cases before the bench.
Judge John F. Coffey issued the orders yesterday, citing the two other branches’ failure to act and setting an hourly pay rate for the bar advocates of $100/hour. In one of those cases, the defendant was charged with illegally carrying a firearm, assault and battery with a dangerous weapon, and other serious offenses.
In laying out the basis for his order, Coffey wrote the Committee for Public Counsel Services (CPCS) “could have taken additional steps to secure counsel in this case pursuant to previous suggestions. This conclusion required denying release under the Lavallee protocol, but that does not remedy the ongoing violation of the defendant’s constitutional rights. “
“The government has a constitutional obligation to ensure that there is an adequate supply of publicly funded defense attorneys available to represent indigent defendants,” the judge continued. “Inadequate compensation of counsel amounts to deprivation of a constitutional right.”
After issuing the orders, Coffey then recused himself from any further dealings in those particular cases.
The Lavallee protocol has been invoked in hundreds of cases since May, as bar advocates have been battling the State House over hourly pay.
The protocol mandates the release of criminal defendants from custody after seven days without legal representation and the dismissal of cases after 45-days without representation. With each passing day, more and more cases approach that 45-day requirement, currently leaving thousands of cases on standby. Once that deadline passes, cases are dismissed without prejudice.
Dismissed without prejudice means the cases may be re-filed at a later date, but from a practical standpoint, a backlog that significant likely means many of those won’t be filed again.
Bar advocates have refused to take on cases in recent month, citing the current $65 per hour pay rate not being enough to meet their expenses in many instances, along with being significantly lower than every other state in New England.
The legislature yesterday released a plan to increase the rate by $10 per hour effective August 1, with another $10 increase on August 1, 2026.
However, local attorneys InsideLowell has spoken to say that likely won’t be enough to resolve the situation, as those increases only bring the pay rate to $85 per hour, still significantly lower than surrounding states.
Bar advocates in Vermont make $100/hour. That number is $112/hour in Rhode Island, $125/hour in New Hampshire and $150/hour in Maine.
In addition, one of our sources pointed out language within the legislative proposal that is perceived as “threatening” and calls it counterproductive to reaching a settlement.
Section 4, Chapter 93 classifies refusal to take cases as an anti-trust violation, and could result in both civil and criminal charges.
The legislative proposal also indicates a top-to-bottom examination of the system by the Inspector General to “review billing practices, procedures and oversight of private bar advocates.”
