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SJC-12121

DEPUTY CHIEF COUNSEL FOR THE PUBLIC DEFENDER DIVISION OF THE 

COMMITTEE FOR PUBLIC COUNSEL SERVICES & another1 vs. ACTING 

FIRST JUSTICE OF THE LOWELL DIVISION OF THE DISTRICT COURT

DEPARTMENT.

Suffolk. November 9, 2016. - May 24, 2017.

Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.

Committee for Public Counsel Services. District Court, Drug 

court session.

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on February 23, 2016.

The case was reported by Duffly, J.

Paul R. Rudof, Committee for Public Counsel Services (Ryan 

M. Schiff, Committee for Public Counsel Services, also present) 

for the plaintiffs.

Bethany L. Stevens for the defendant.

HINES, J. This matter is before us on a reservation and 

report, by a single justice of this court, of a petition for 

 

1 Deputy Chief Counsel for the Private Counsel Division of 

the Committee for Public Counsel Services.
2

relief under G. L. c. 211, § 3. The petition, brought by the 

Deputy Chief Counsel for the Public Defender Division of the 

Committee for Public Counsel Services and the Deputy Chief 

Counsel for the Private Counsel Division of the Committee for 

Public Counsel Services (collectively CPCS), sought an order 

affirming CPCS's independent authority under G. L. c. 211D to 

select and supervise attorneys for indigent defendants in the

pilot program it had launched in the drug court session of the 

Lowell Division of the District Court Department (drug court). 

The issue arose after the Acting First Justice of the Lowell 

District Court (Justice), citing the need for a "team" approach 

to cases in the drug Court, removed CPCS attorneys from drug 

court cases to which they had been assigned and excluded CPCS 

attorneys from assignment to any new case in the drug court.

The single justice, in her reservation and report, observed 

that "the matter raises some important legal questions that 

ought to be decided by the full court, concerning specialty 

courts in general and adult drug courts in particular, and the 

respective roles and responsibilities of judges, [CPCS], and 

individual defense attorneys." The issue highlights the tension 

that may arise between an attorney's duty to zealously advocate 

for the rights of the drug court defendant and a drug court 

model that favors a collaborative and nonadversarial approach to 

supervision of the drug court defendant. We recognize that the 
3

success of drug court outcomes depends in large part on an 

unconditional commitment to the goal of treatment from all 

members of the drug court team, including the drug court 

defendant. Nonetheless, we conclude that CPCS has the sole 

authority under G. L. c. 211D for the assignment of counsel to 

indigent criminal defendants and that a judge may not override 

that authority to accommodate a preference for attorneys willing 

to assume a collaborative and nonadversarial role in drug court

proceedings.

Background. 1. The drug court model. Drug courts have 

been developed to provide the option of treatment as an 

alternative to incarceration in cases where the underlying 

criminal behavior is thought to be motivated by a defendant's 

substance abuse. Executive Office of the Trial Court, Adult 

Drug Court Manual, A Guide to Starting and Operating Adult Drug 

Courts in Massachusetts at 2-3 (2015) (drug court manual). Drug 

courts are defined as "problem-solving courts that operate under 

a specialized model in which the judiciary, prosecution, defense 

bar, probation, law enforcement, substance use, mental health,

and social service communities work together to provide 

treatment to people with substance use challenges" with the 

ultimate goal of public safety and reduction of recidivism. Id. 

at 3.
4

To accomplish these purposes, drug courts necessarily are 

different from regular criminal sessions during which a judge

may impose probation to accommodate a need for treatment rather 

than a sentence of incarceration. A defendant's success with 

substance abuse treatment in such circumstances more often than 

not depends on his or her self-motivation and the availability 

of resources to support the treatment alternatives. Drug 

courts, by contrast, are premised on the truism that successful 

treatment, though achievable, is difficult for a defendant with 

little more than sincere motivation and good intentions at his 

disposal. Thus, drug courts are distinguished from regular 

criminal sessions by the "integration of treatment and services 

with judicial case oversight and intensive court supervision." 

Id. at 39. In accordance with this formula for success, the 

drug court model incorporates features, described infra, not 

common in regular criminal sessions.

The structure of the drug court is informed by "evidencebased best practices" emphasizing the necessity of a team 

approach to the development and oversight of the defendant's 

prescribed course of substance abuse treatment. Id. at 3. A

judge is the leader of the drug court team and, in that 

capacity, assembles the team which typically includes the 

"program coordinator, assistant district attorney, defense 

attorney, probation officer(s), clerk, case manager, specialty 
5

court clinician, treatment providers, local law enforcement, and 

representatives from local organizations that provide services 

to drug court participants." Id. at 8. In keeping with the 

treatment purpose, team members must have expertise in substance 

use disorders and therapeutic options, and be sensitive to 

issues of gender, age, race, language, and cultural issues that 

may bear on the drug court defender's likelihood of success.

Id. Collectively, the team members have the knowledge and 

experience to develop an appropriate treatment plan for each 

drug court defendant. Just as important, they are adept at 

identifying the personal and societal causes of failure and the 

ways to undercut their impact on the treatment goals.

The probation officer, clerk, and treatment providers are 

essential to the mission of the team. They are present at each 

drug court session, providing a consistency in the oversight of 

drug court defendants at each drug court session. Participation 

by the assistant district attorney and defense counsel is 

encouraged but not always possible. Defense counsel has no 

formal role in the drug court sessions because in the postadjudicative setting, the drug court defendant has no right to 

counsel. However, if a drug court defendant is issued a 

probation violation notice, defense counsel is appointed and is 

expected to "zealously advocate for the rights of his or her 

client." Id. at 8.
6

The work of the drug court is accomplished during the 

weekly session over which the judge presides with the assistance 

of the other team members. In preparation for each drug court 

session, the team is assembled for a "staffing," the purpose of 

which is to review the progress of each drug court defendant who 

will appear before the court that day. Id. at 27. During the 

staffing, the team determines whether sanctions are necessary. 

However, if sanctions are to be considered, the discussion is 

deferred until defense counsel has been notified and given the 

opportunity to appear. After the staffing, the formal drug 

court session is held with the defendant in attendance. Only 

drug court cases are on the session docket. During the session, 

the judge interacts personally with each drug court defendant

and offers words of encouragement or praise. The session is 

open to all drug court defendants scheduled to appear that day 

with the expectation that the opportunity to "see the 

consequences of others' actions [will] build[] a sense of mutual 

support among the participants." Id. at 28.

In accordance with the drug court manual, drug courts are 

encouraged to have "clear, objective, and specific eligibility 

criteria" for admission. Id. at 15. Typically, a defendant 

must meet three eligibility criteria for admission to the drug 

court: (1) the defendant must have a substance use disorder; 

(2) the defendant must have been found guilty, pleaded guilty,
7

or admitted to sufficient facts for a continuance without a 

finding; and (3) the defendant must have been placed on 

supervised probation. Id. An eligible defendant is entitled to 

the advice of counsel on the risks and benefits of drug courts.

Drug court defendants must agree to a one-year commitment

during which they may be required to submit to "random and 

comprehensive drug and alcohol testing multiple times weekly, 

weekly meetings with the probation officer and attendance at a 

weekly or bi-weekly status hearing before the judge." Id. at 

21. These conditions purposely are more demanding based on the 

underlying philosophy that drug court defendants must exhibit an 

unconditional commitment to engage in and comply with a rigorous 

substance abuse treatment program. Id. at 19. And, as with any 

probationer, the drug court defendant risks a violation of 

probation if he or she fails to comply with the conditions of 

probation.

2. The pilot program in the Lowell drug court. The drug 

court commenced operations in June, 2014, and from its 

inception, the Justice has been the judge with primary 

responsibility to oversee the court. In July, 2015, CPCS 

initiated a drug court pilot program (pilot), which, in a 

departure from CPCS's long-standing policy, permitted the 

assignment of counsel to indigent drug court defendants for 

every stage of the drug court proceedings. CPCS's policy was 
8

driven by the legal principle that in the drug court

postdisposition proceedings, drug court defendants had no right 

to counsel; the right to counsel attached only if the defendant 

was subject to a probation violation hearing. CPCS was 

constrained as well by budgetary considerations. No funding had 

been appropriated to defray the costs associated with the 

assignment of counsel to this class of defendants beyond the 

reach of the right to counsel provided by G. L. c. 211D.

The impetus for the pilot was a series of discussions that 

began in December, 2013, among CPCS, judges, and other 

representatives of the Administrative Office of the Trial Court. 

The advocacy for this expanded access to defense counsel was 

informed by the experiences of judges in other drug court 

sessions who touted the efficacy and desirability of assigned 

counsel at all stages of the drug court sessions. These judges 

and others involved in the management of the drug court sessions 

believed that a drug court defendant's likelihood of success in 

substance abuse treatment would be enhanced if defense counsel 

gained expertise in addiction issues and was familiar with the 

team's view of the defendant's participation. This pilot

innovation permitted assigned counsel to participate in drug 

court "staffings" which ordinarily would not involve the 

presence of appointed counsel.
9

The pilot began after the Justice was notified by a letter 

dated July 15, 2015, of CPCS's proposal to locate the pilot 

program in the drug court. This letter advised that "the task 

of assuring counsel for participants already determined indigent 

in the trial session will be handled by our staff office and by 

Middlesex Defense Attorneys . . . just as is done in all court 

sessions." The record contains no evidence that the Justice 

rejected these conditions for the implementation of the pilot in 

the drug court.

Although the record does not establish the precise date on 

which the pilot commenced, disagreement between the Justice and 

CPCS attorneys surfaced on September 15, 2015, in an incident 

involving one of the CPCS attorneys chosen to participate in the 

pilot. It is not necessary to recite the details of that 

incident; the upshot was that the Justice removed the attorney 

from the assigned case and informed the attorney in charge of 

the CPCS office in the Lowell Division of the District Court

Department that this attorney would not be permitted to 

represent probationers in the drug court. The Justice removed 

the attorney without specifying the reason or providing an 

opportunity for the attorney to be heard. On November 16, 2015, 

CPCS attorneys filed a motion for recognition of counsel and for 

the recusal of the Justice on behalf of the probationer who had 

been represented by the attorney removed by the Justice. On 
10

December 10, 2015, the Justice issued a memorandum of decision, 

denying the motion as moot.2

On several occasions in December, 2015, the Justice 

declined to recognize previously assigned CPCS attorneys and 

appointed bar advocates as substitute counsel. Eventually the 

Justice announced a categorical ban on CPCS attorneys in the 

drug court, effectively terminating the drug court pilot. 

Although the Justice did not explain his reasoning for the 

categorical ban on CPCS attorneys, he later expressed the belief 

that CPCS attorneys in the Lowell office were "extremely 

hostile" to the drug court mission and that they refused to 

"participate fully" as team members.

Discussion. The petitioners argue that under G. L. c. 211D 

and S.J.C. Rule 3:10, as amended, 416 Mass. 1306 (1993), CPCS 

has independent authority to assign counsel to indigent criminal 

defendants and that a judge may not remove assigned counsel 

without notice and the opportunity to be heard, or categorically 

exclude CPCS attorneys from assignments in the drug court. The 

Justice concedes these limitations on a court's role in the 

assignment of counsel to indigent criminal defendants. He 

argues, however, that in the exercise of his authority to choose 

 

2 The issue became moot after the Justice readmitted the 

defendant to probation, thereby making the appointment of 

counsel unnecessary.
11

drug court "team" members and to insure fidelity to the drug 

court model, he may bypass the statutorily mandated system for 

assignment of counsel to give preference to volunteer "team" 

attorneys in probation violation cases. We do not doubt the 

desirability and efficacy of a collaborative and nonadversarial 

approach in the drug court, and we recognize its value in making 

the drug court an effective intervention for defendants who 

would otherwise recidivate because of their substance abuse 

issues. We conclude, however, that this purpose, laudable as it 

may be, cannot trump the statutory mandate that CPCS, not the 

court, is to assign counsel for indigent defendants.

When G. L. c. 211D was enacted in 1983, the Legislature had 

the benefit of decades of public advocacy for a "comprehensive, 

coordinated, and independent" system to insure an indigent 

criminal defendant's right to counsel. See Rosenfeld, The Right 

to Counsel and Provision of Counsel to Indigents in 

Massachusetts: The Hennessey Era, 74 Mass. L. Rev. 148, 148 

(1989) (Hennessey Era). See also St. 1983, c. 673. That 

advocacy followed this court's decisions in Pugliese v. 

Commonwealth, 335 Mass. 471, 475-476 (1957) (recognizing right 

to counsel where defendant lacked sufficient intelligence to 

represent himself), and Brown v. Commonwealth, 335 Mass. 476, 

482-483 (1957) (violation of art. 12 of Massachusetts 

Declaration of Rights where defendant was not represented by 
12

counsel), both of which were decided well before the United 

States Supreme Court's landmark ruling in Gideon v. Wainwright, 

372 U.S. 335, 339, 343-344 (1968). In the aftermath of these 

decisions, the Supreme Judicial Court promulgated S.J.C. Rule 

10, 337 Mass. 813 (1958), which required the appointment of 

counsel for indigent defendants in noncapital felony cases in 

the Superior Court.3

In 1960, the Legislature created the Massachusetts 

Defenders Committee, the first State-wide publicly funded 

defender agency. St. 1960, c. 565. Plagued by a shortage of 

resources, however, the defender's committee was unable to 

deliver on its mission to provide counsel to all indigent 

defendants eligible to receive the service. Goodwin, Comment,

Massachusetts' Struggle to Adhere to the Gideon Mandate: Will 

the Lavallee Decision, Coupled With Legislative Reform, Finally 

Establish a State Indigent Criminal Defense System that is 

Constitutionally Sound? 32 New Eng. J. on Crim. & Civ. 

 

3 Rule 10 of the Supreme Judicial Court Rules, 337 Mass. 813 

(1958), was amended three times thereafter. In 1962, the rule 

was amended to allow the appointment of counsel in any case 

warranted by the circumstances. 345 Mass. 792 (1962). In 1964, 

the rule was amended a second time to require the appointment of 

counsel in all cases where a sentence of imprisonment was a 

possible consequence of conviction. 347 Mass. 809 (1964) In 

1969, the court amended what was by then S.J.C. Rule 3:10 to 

require the assignment of the Massachusetts Defenders Committee 

unless exceptional circumstances dictated otherwise. 355 Mass. 

803 (1969). See 351 Mass. 791 (1967) (renumbering rules of 

Supreme Judicial Court).
13

Confinement 77, 84 (2006). Twenty years after the creation of 

the defender's committee, it was still responsible for "less 

than one-half" of the cases of indigent criminal defendants.

Id. at 86-87. The patchwork of county defender programs that 

operated as a complement to the defender's committee was itself 

inadequate to have any salutary effect on the system for the 

appointment of counsel for indigent criminal defendants. Id. at 

87. Also, until the decision in Abodeely v. County of 

Worcester, 352 Mass. 719 (1967), private attorneys appointed 

under the authority of S.J.C. Rule 3:10 had no constitutional or 

statutory right to payment for their services. Abodeely, supra

at 723-724.

Concern about these and other serious shortcomings in the 

indigent defender system prompted then Chief Justice Edward 

Hennessey to establish a committee,

4 chaired by Associate Justice 

Herbert Wilkins (Wilkins Committee), to "set out guidelines and 

standards for defender programs, including such requirements as 

caseload controls, training, vertical representation and 

provision of support services." Rosenfeld, Defense of Indigents 

 

4 The committee, officially named the "Committee on 

Appointment of Competent Counsel for Indigent Criminal 

Defendants in District and Municipal Courts" (Wilkins 

Committee), was established in 1976. The Wilkins Committee 

released its interim report on December 16, 1976, and its final 

report on March 21, 1979.
14

in Massachusetts: A New Approach, 28 Boston Bar J. Vol. 22, 22 

(Nov./Dec. 1984). See Hennessey Era, supra at 149.

Chief Justice Hennessey envisioned an indigent defender system 

that was "centrally administered and financed . . . , within the 

judicial branch but independent of the [c]ourt." Id. at 151.

The Wilkins Committee issued reports in 1976 and 1979,

identifying the primary impediments to the system envisioned by 

Chief Justice Hennessey as the lack of (1) a central 

administrative and funding mechanism; (2) standards for quality 

control; and (3) requirements for training and education. Id. 

at 149-150. Armed with the work of the Wilkins Committee and 

other advocacy groups supporting his vision, Chief Justice 

Hennessey personally supported legislative initiatives intended 

to accomplish this purpose. Id. at 151.

Leading up to the enactment of G. L. c. 211D in 1983, the

Legislature also had the benefit of appellate cases documenting 

abuses of the then-existing system for the appointment of 

counsel to indigent defendants.5 Under that system, judges, 

 

5 See, e.g., Matter of McKenney, 384 Mass. 76, 77, 89, 101

(Appendix) (1981) (public censure and retirement of former judge 

for misconduct including favoritism in appointment of counsel 

for indigent defendants); Matter of Scott, 377 Mass. 364, 369-

370, 376-377 (Appendix) (1979) (censure for failing to ensure 

that counsel was appointed for indigent party); Matter of Troy, 

364 Mass. 15, 36, 73 (1973) (discipline for conditioning the 

right to court-appointed counsel on defendant's surrender of 

right to post bail).
15

despite the obvious constitutional conflict in exercising that 

role, had exclusive authority for the appointment of counsel.6

Against this historical backdrop, the Legislature enacted 

G. L. c. 211D in 1983, establishing CPCS as the sole statutory 

entity with the authority to "plan, oversee, and coordinate the 

delivery of criminal . . . legal services" to indigent 

defendants. G. L. c. 211D, § 1. General Laws c. 211D created a 

centralized agency with the responsibility for every aspect of 

the system for providing counsel for indigent defendants. Id. 

That responsibility begins with the duty to establish, subject 

only to the approval of the Supreme Judicial Court, the 

indigency standards to be applied in determining a defendant's 

right to appointed counsel. G. L. c. 211D, § 2. For the 

benefit of those defendants qualifying for the appointment of 

counsel, CPCS is charged with the duty to oversee the "training, 

qualification and removal of counsel" who accept appointments as 

counsel for indigent defendants. G. L. c. 211D, § 4. Vested 

with this authority, CPCS has the ability to insure that 

indigent defendants have access to effective assistance of 

 

6 "The appointment of counsel by judges creates -- at the 

least -- the appearance that lawyers are being assigned cases to 

move dockets and that lawyers may be more loyal to the judge 

than to the client." See Statement of Stephen B. Bright, 

Innocence Protection Act of 2001, Hearing before the Senate 

Committee on the Judiciary, 107th Cong., 1st Sess., on S.486, at 

40 (June 27, 2001).
16

counsel. The statute also has an egalitarian approach to the 

appointment of counsel, allowing that CPCS create a rotating 

appointment system to "encourage open access among attorneys 

participating within the private counsel division." Id. As 

explained, infra, the over-all statutory scheme addressed a 

range of issues that, prior to 1983, undermined the goal of a

comprehensive and unified system for the assignment of counsel 

to indigent defendants.

The plain language of G. L. c. 211D, § 5, viewed in the 

context of the entire statutory scheme, supports for our 

conclusion that CPCS has sole authority to assign counsel to 

indigent criminal defendants. The procedure in G. L. c. 211D, 

§ 5, contemplates a two-step process for the assignment of 

counsel. The first step is the determination of indigency, a 

duty within the exclusive authority of the judge. Id. The 

statute is clear that, in the second step, "A justice or 

associate justice shall assign a case to [CPCS]" (emphasis 

supplied). Id. This statutory division of authority between 

the judge and CPCS is reinforced in S.J.C. Rule 3:10, § 5, which 

provides that "the judge shall assign [CPCS] to provide 

representation for the party, unless exceptional circumstances, 

supported by written findings, necessitate the use of a 

different procedure that is consistent with G. L. c. 211D and 

the rules of this court" (emphasis supplied). Therefore, we
17

discern no ambiguity in the respective roles of the judge and 

CPCS. The judge's role is to determine indigency and to assign 

the case to CPCS; the role of CPCS is to assign the case to an 

attorney with responsibility to represent the defendant.7

The Justice does not dispute this interpretation of G. L. 

c. 211D, § 5. Rather, he argues that we should recognize an 

exception for the drug court based on the need for the team 

approach deemed essential to the success of the drug court 

model. To the extent that the social science research validates 

the efficacy of a nonadversarial "team" approach in the adult 

drug court model, we take no issue with that proposition. 

Nonetheless, the statute provides no authority for a judge to 

craft an exception for a drug court, and the Justice cites none. 

As framed by the Justice, the judge, as the leader of the drug 

court team, may use his authority to select the team members to

give preference to volunteer attorney "team" members in the 

appointment of counsel for probation violation matters. 

Although important, the authority to select team members is an 

administrative duty that must give way to the clear statutory 

duty of CPCS to assign counsel. Further, this exception to the 

 

7 According to CPCS, except for CPCS staff attorneys, CPCS 

does not assign individual attorneys to CPCS cases. Instead, 

CPCS contracts with the various county bar advocate programs

which in turn make the assignments in accordance with the 

statutory mandate to fairly apportion the cases among available 

attorneys.
18

statutorily mandated procedure would effectively remove CPCS 

attorneys from the pool of attorneys in the drug court. "The 

carving out of any exceptions to [a] clear [statutory] mandate 

is for the Legislature, not the judiciary." D'Avella v. 

McGonigle, 429 Mass. 820, 822 (1999).

Conclusion. Although we acknowledge and appreciate the 

important and special role of the drug court in achieving 

important public policy interests, we are constrained to follow 

the clear dictates of G. L. c. 211D and S.J.C. Rule 3:10, which 

vest CPCS with sole and independent authority to assign counsel 

for indigent defendants. Where a drug court defendant who is 

indigent is alleged to have violated the terms of probation, the 

judge must appoint CPCS as counsel. Counsel assigned by CPCS

may be removed only for cause after a hearing.

So ordered.