(Applicable to District Court and Superior Court)

The assignment of counsel for defendants determined to be indigent or indigent but able to contribute shall be governed by the provisions of G. L. c. 211D and Supreme Judicial Court Rule 3:10.

Reporter's Notes

The Municipal Court for the City of Boston established in 1974 the Marginally Indigent Defendant’s Attorneys Program (MIDA). This rule establishes a program of similar content for all District and Superior Courts. 

A substantial number of defendants who appear in court to answer to criminal charges are found to be indigent and are provided with the services of counsel at public expense. Others with adequate resources retain private counsel. There is also a middle group composed of defendants who, because their incomes or assets are sufficient to prevent their being classed indigent, but are insufficient to enable them to comfortably retain counsel, are often denied representation. 

Many of this latter group are willing to pay for legal services to the extent of their ability, but are frustrated in attempting to retain counsel by their limited means. It has become the practice of many judges, when advised of such defendants’ unsuccessful attempts to obtain representation, to assign counsel, thus adding to the cost of administering the public defender programs and to the caseload of Massachusetts Defenders Committee. 

It is the intent of this rule that an attorney be provided at a fee which is affordable by a defendant who does not qualify as an indigent, but who nonetheless cannot pay the total expense of a criminal defense without undue hardship. The rule applies only to reduced rates for attorney’s fees; it does not apply to other defense services. 

Under existing practice there is no system of partial eligibility. It is expected that this rule--which makes competent attorneys available at reduced fees--will serve the dual function of providing defense counsel to a large number of defendants while reducing an unnecessary drain on the public treasury. See ABA Standards Relating to Providing Defense Services § 6.2 (Approved Draft, 1968).

Subdivision (a). This rule is to be read in conjunction with Mass.R.Crim.P. 8, Assignment of Counsel. 

For many years, indigents who have needed attorneys have received the services of volunteers. Many bar associations have assumed the responsibility of providing legal services without charge to those unable to pay for their criminal defense. However, as constitutional considerations have multiplied, an increased number of defendants and an increased number of appearances for each defendant have created a tremendous burden on public revenues. James v. Strange , 407 U.S. 128, 141 (1972). It is not the purpose of this rule to deprive any defendant of the services of appointed counsel. Rather, it is recognized that many defendants who receive the services of court-appointed counsel are as able to pay part of their legal expenses as some defendants are to pay the entire expenses of retained counsel. 

Subdivision (b). The referral process for the appointed attorney shall be monitored by either the local bar association or the clerk of the District Court. The list of attorneys should be comprised of those who volunteer and who are qualified to provide competent legal assistance. An established list will better ensure fairness in the distribution of appointments and will “avoid the appearance of patronage.” ABA Standards, supra § 2.3. 

Subdivision (c). In determining the eligibility of a defendant for the appointment of counsel under this rule, the court should consider the same relevant factors as mentioned in the Reporter’s Notes to Mass.R.Crim.P. 8: employment status, income, obligations, dependents, etc. See G.L. c. 261, § 27C . The final determination as to the defendant’s eligibility as marginally indigent is within the court’s discretion. 

Where special circumstances require, see Mass.R.Crim.P. 8(b), an appointment can be made of an attorney who is not on the list. 

It should be clearly understood by both the defendant and the appointed attorney that the established fee is to be the only remuneration for the services rendered. Upon appointment of counsel, a form, which details the required information, is to be signed by the defendant. 

Within seven days after entry of judgment or other disposition of the case, the attorney shall complete a report indicating the offense of which the defendant was charged and the fees charged and received. 

Subdivision (d). The defendant is to make the initial contact and it is his responsibility to afford the attorney adequate time for investigation and preparation before trial. If appointed counsel chooses not to, or is unable to, represent the defendant, he is to notify the court and the defendant. 

Subdivision (e). As provided in Mass.R.Crim.P. 8(d), the case may proceed to trial on the set date notwithstanding the fact that the attorney has not been contacted by the accused or has been given insufficient time for preparation. 

All parties, unless the attorney has withdrawn his appearance pursuant to subdivision (d), must appear in court on the trial date. If the attorney has properly withdrawn and no continuance has been granted, the defendant must appear in court on the trial date. The case should proceed to trial unless for compelling reasons the court determines that justice requires a continuance. See Mass.R.Crim.P. 9

Subdivision (f). Upon appointment of counsel, the defendant should be told that the expense of appointed counsel will be assessed against him as costs, and he should be informed of the possible effects of non-compliance with any court order regarding payment of these costs. To insure that the defendant understands the operation of this rule, the defendant will be required to sign a statement to that effect. 

The court should then make an initial estimate of the costs of defense (keeping in mind the maximum established by the District Court and Superior Court Rules and other rules of court that determine the rate of attorneys’ compensation) and of the defendant’s ability to satisfy all or part of those costs out of present assets and expected earnings. In determining the availability of present assets to meet these costs, the court should consider the defendant’s liabilities and continuing obligations. In determining the amount of income available to meet those costs, the court should additionally consider how long (if at all) the defendant will be working prior to the commencement of trial (if there is to be a trial). See G.L. c. 261, § 27C , which does not attempt to establish standards for determining indigency, but requires that such standards be posted by the court. The court may also utilize G.L. c. 93, § 51 to obtain records from a consumer reporting agency in order to evaluate defendant’s affidavit of indigency under G.L. c. 261, § 27B

Where the court finds that there are assets or income available to be used for the benefit of counsel, the court may then enter an order that the defendant pay a reasonable amount to the court out of his present assets and that he pay a reasonable amount out of future income on an installment basis for a definite duration. This order, like all subsequent orders regarding the payment of costs, may be modified by the court upon a showing by either the defense or the prosecution of changed circumstances. 

A defendant can be ordered to pay in installments to be satisfied out of future income, and to this extent the timing of the burden may be different. However, this can in no way be seen as coercive pressure to find employment, or to maintain present employment or one’s present income level, because changed circumstances are grounds for modification of the court order. Thus, the only difference relates to the timing of the burden which does not impede the exercise of one’s right to counsel. 

The Supreme Court in Fuller v. Oregon , 417 U.S. 40 (1974), affirmed the validity of such reasoning: 

The fact that an indigent who accepts state-appointed legal representation knows that he might someday be required to repay the costs of these services in no way affects his eligibility to obtain counsel. The Oregon statute is carefully designed to insure that only those who actually become capable of repaying the State will ever be obliged to do so.... 

A defendant in a criminal case who is just above the line separating the indigent from the non-indigent must borrow money, sell off his meager assets, or call upon his family or friends in order to hire a lawyer. We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any obligation to shoulder the expenses of their legal defense, even when they are able to pay without hardship. 

Id. at 53-54. 

The provisions of subdivision (f)(3) for assignment to defense counsel of any cash bail deposited is new to Massachusetts procedure.

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