The emergency is over, on paper. In an order issued Monday, Supreme Judicial Court Justice Dalila Argaez Wendlandt lifted the Lavallee protocol, the fourteen-month-old court procedure that released jailed defendants after seven days without a lawyer and dismissed their cases after forty-five. She wrote that “the work stoppage prompting the institution of the Lavallee protocol has ended,” that “the number of unrepresented indigent defendants has remained low for a consistent period of time,” and that there is no longer “an ongoing systemic violation” of the constitutional right to counsel. A hearing that had been set for September 16 was canceled.
The order came on a joint request from the Committee for Public Counsel Services, the Trial Court and Suffolk District Attorney Kevin Hayden’s office, the parties who had been on opposite sides of the protocol for more than a year. Their filing told the court there had been no Lavallee hearings in Suffolk or Middlesex since the end of 2025 and that, as of August 12, only two indigent defendants in those counties remained without counsel, neither of them in custody. Wendlandt commended the parties for their “cooperative efforts to end the crisis and get counsel to indigent criminal defendants in need of representation.”
This piece explains what ended, what did not, and why the second question matters more than the first. The full history of the work stoppage, the pay dispute and the case-by-case toll is in our earlier report, Massachusetts dismissed 1,687 criminal cases because nobody would take them.
What the Lavallee protocol was
The protocol takes its name from Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228 (2004), a case that arose from an earlier bar advocate shortage in Springfield. The SJC held that when the Commonwealth cannot provide counsel to an indigent defendant, the defendant’s rights under the Sixth Amendment and article 12 are being violated in an ongoing way, and the courts must do something about it rather than let people sit in jail waiting. The remedy the court fashioned: a defendant held without counsel for seven days must be released on personal recognizance, and a defendant without counsel for forty-five days must have the charges dismissed without prejudice, meaning the Commonwealth can re-file when it can provide a lawyer.
The protocol is not self-executing. It has to be invoked by a single justice of the SJC on a finding that a systemic violation exists. Wendlandt made that finding in July 2025, six weeks into a work stoppage by the private attorneys, called bar advocates, who take most court-appointed criminal cases in Massachusetts. They had stopped accepting new appointments over the state’s $65 hourly rate, which they said had not kept pace with inflation or with neighboring states, and asked for $100.
What it cost
The numbers were the largest in the protocol’s history. By August 2025 more than 3,000 adult defendants in Suffolk and Middlesex were without counsel. At least 1,030 cases had been dismissed without prejudice by October 2025, according to MassLive’s count at the time; the Boston Globe’s accounting from court data through February 2026 reached 1,687 dismissals and 198 releases. Felony defendants were released under the seven-day rule within weeks of the stoppage starting. In February, prosecutors seeking to hold a Boston man charged in a fatal stabbing pointed out that his earlier case had been dismissed because the court could not find him a lawyer.
The Legislature responded in August 2025 with a raise from $65 to $85 an hour, phased in through 2027, and money to expand the state’s staff public defender workforce. Bar advocates called the raise “a slap in the face” at the time. Some returned to work anyway. Over the following months the number of unrepresented defendants fell, the courts stopped holding Lavallee hearings, and CPCS went on a hiring push.
What Monday’s order does
Three things. It ends the seven-day release rule and the forty-five-day dismissal rule in Suffolk and Middlesex, the two counties where the protocol was in force. It dismisses the underlying single-justice case, so there is no longer a pending proceeding in which CPCS can ask for further relief without filing anew. And it records a judicial finding that the systemic violation has ended, which is the legal predicate for both.
The finding is narrow, and the order’s own language keeps it narrow. Wendlandt did not find that the indigent defense system is adequately funded, that the pay rate is sufficient, or that the stoppage cannot recur. She found that the specific condition the protocol exists to address, a large and persistent population of defendants with no lawyer, has been absent for long enough. That is a fact about the last several months, not a judgment about the next several years.
What it does not do
It does not resolve the pay dispute. The bar advocates’ rate is $85 an hour by statute, phased in through 2027, with no mechanism for adjustment. The SJC ruled earlier this year, in the separate full-court case brought by CPCS, that judges cannot order the Legislature to raise the rate; that decision sent the question back to Beacon Hill, where it sits. A separate lawsuit by defense lawyers over the state law they say bars them from organizing for better pay is also pending.
It does not restore the dismissed cases. Dismissals under Lavallee were without prejudice, so prosecutors may re-file any of them within the statute of limitations if they choose. How many of the 1,687 have been re-filed has not been reported, and there is no central public count.
It does not answer the June report from the Sixth Amendment Center, which found that Massachusetts is failing to consistently meet its constitutional obligation to provide counsel, and that it has allowed the right to counsel to depend on a strained and shrinking pool of private lawyers. That report was written while the protocol was still in force. Nothing in Monday’s order responds to it.
Why it can happen again
The Lavallee protocol is a fire alarm, not a fire code. It goes off when enough people are sitting in jail without lawyers and it stops when they are not. The conditions that set it off in 2025 were structural: a compensation rate set by statute, no bargaining mechanism, and a system that assigns most of its cases to private lawyers who can decline them. The raise addressed the first condition partway. The second and third are unchanged.
The protocol had been invoked twice before 2025, both times in Hampden County: in the 2004 case that created it and again in 2020, in Carrasquillo v. Hampden County District Courts. Each time the underlying pay problem was left for the Legislature. Whether the next invocation is years away or months depends on whether $85 holds against the cost of running a solo criminal practice in 2027, and on whether the CPCS expansion produces enough staff attorneys to absorb a future stoppage. Neither is knowable today.
If you had a case affected
If your case was dismissed under Lavallee, the dismissal stands unless and until the Commonwealth re-files. You should keep any paperwork from the dismissal and, if you are contacted about a new complaint on the same facts, ask for counsel at arraignment as you would in any case. If you were released under the seven-day rule and your case is still open, your conditions of release are unchanged by Monday’s order; the order affects only how the courts handle new cases without counsel going forward.
If you are now charged and cannot afford a lawyer, the court will appoint one. The delays of 2025 are not currently occurring, and the protocol that would have released or dismissed your case if they were is no longer in force.
Common questions
What is the Lavallee protocol?
A court procedure from Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228 (2004). When the state cannot provide a lawyer to an indigent defendant, the defendant must be released after seven days in custody without counsel and the charges dismissed without prejudice after forty-five days.
Why was it lifted?
Justice Wendlandt found that the bar advocate work stoppage has ended and the number of unrepresented defendants has stayed low for a consistent period, so there is no longer an ongoing systemic violation of the right to counsel. CPCS, the Trial Court and the Suffolk District Attorney jointly asked her to end it.
Can cases dismissed under Lavallee be brought back?
Yes. The dismissals were without prejudice, so prosecutors may re-file within the statute of limitations. There is no public count of how many have been.
Did bar advocates get their raise?
Partly. The Legislature raised the rate from $65 to $85 an hour, phased in through 2027. They had asked for $100. The SJC ruled that courts cannot order a higher rate.
Could the protocol be invoked again?
Yes. Any future shortage of appointed counsel large enough to amount to a systemic violation would allow CPCS to ask a single justice to reinstate it.
Monday’s order and the parties’ joint filing as reported by MassLive (Irene Rotondo), September 14, 2026; the order itself was not available on the court’s public site at publication. Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228 (2004), verified against CourtListener. Dismissal and release counts through February 2026 are the Boston Globe’s, as cited in our September 9 report. General information about Massachusetts law, not legal advice.