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When Does the Right To a Lawyer Apply In Massachusetts?
The only constitutional right to a lawyer in Massachusetts at present is if you have been accused of a criminal offense and you do not have enough money to pay for a lawyer yourself. The court will appoint a lawyer to defend you throughout the proceedings against you. More details of the criteria needed to be offered a public defender in Massachusetts will be explored separately below.
Legal cases are divided into two main categories: criminal and civil cases. Although you do not have the right to a lawyer to represent you in most civil cases, there are a number of ways that a lawyer may still be available for free, or on a contingency fee basis. Usually, these offers of legal help are available to those people who do not enough money to pay the normal legal fees of a lawyer themselves. The main pathways to gain access to a lawyer if you fit these circumstances are also explored further below.
Two bills have been sponsored for reading in the state’s House of Representatives and Senate during the 2021/2022 sitting which intend to make it possible for poorer victims of eviction to be offered free counsel.
Right to a lawyer in criminal cases in Massachusetts
Part of the 6th Amendment of the U.S. Constitution stipulates that everyone who has been accused of a criminal offense can be given free counsel (i.e. a lawyer) if they cannot afford a lawyer to represent themselves. This right was originally only offered to defendants in federal felony cases, but was extended to state felony prosecutions in 1963 by the U.S. Supreme Court in the case of Gideon vs. Wainwright. The right is not extended to all criminal cases even now, in fact, as defendants accused of certain misdemeanors are not necessarily offered free counsel as of right.
The lawyers who can be appointed by a court to represent you in a criminal case are either drawn from the federal Public Defender’s office (in a federal criminal case) or the Public Defender’s Division of the Massachusetts Committee for Public Counsel Services in a state criminal case.
The 6th Amendment also gives defendants the right to an effective lawyer, i.e. one who is capable of providing legal assistance in a criminal case throughout the proceedings.
This 6th Amendment right does not mean that you have to use a public defender if you haven’t the wherewithal to pay for a lawyer yourself as you can still choose to defend yourself instead, however, this is not advisable, even if you are a trained and competent lawyer.
The criteria used to decide whether you are “poor” enough to have free legal counsel is if your combined income is less than 125% of the federal poverty level. This level depends on the number of people in your household and is amended annually.
Free legal services in civil cases in Massachusetts
Various attempts have been made in the recent past to pass laws which provide assistance to someone who has been evicted and likely to remain homeless in Massachusetts. A petition for a bill has been presented to both the state House of Representatives (in the form of H.1436) and the Senate (S.913) the intention of which is to pass into law the right to provide free counsel for such victims of eviction who cannot pay for a lawyer themselves. These two petitions are currently working their way through the respective legislative assemblies without any conclusion as yet.
There are several free or nearly free legal services available to you if you haven’t much money or cannot afford a lawyer in a civil case. Some of these are described in more detail below.
Some individual lawyers, and more commonly legal firms with several partners, offer pro bono services on a case by case basis. The free service may just be free advice offered or full representation. Like the public defender system for criminal cases, pro bono legal help may only be offered to those whose income is below a certain level, typically the same 125% of the federal poverty level as with free criminal legal assistance.
Contingency fee arrangements
Some lawyers will provide free legal services on what is called a contingency fee basis. Basically, lawyers will defer their normal fee until the case has been successfully terminated. If the case is lost, the fee is normally waived. If the case is won, the fee is then due. These services are usually tied to civil claims which may result in the plaintiff winning compensation from the party they are suing. Contingency fee arrangements, often called “No win No fee” arrangements are common in personal injury and some employment law cases. The benefit of these sorts of arrangements is that they represent less risk for the client, as there are no upfront fees to be paid. The downside is that most lawyers who offer these services usually tend to only take them on if there is a good chance of winning them.
Legal aid clinics
You may be able to obtain free legal aid if you qualify for it from a legal aid clinic. Legal aid clinics get their funding at least in part from the government. Usually, the civil cases that qualify for free legal aid tend to be limited. Typical cases which may qualify for this sort of legal assistance include eviction and homelessness cases, denials of unemployment and social security benefit claims and consumer credit issues. As with other free legal help, the criteria for acceptance depend on a certain level of poverty.
A particular type of legal aid might also be offered by law students at a law school legal clinic. Civil cases such as landlord/tenant disputes, family and health law cases are typically the focus of these free services. Law students practice their skills under the supervision of a senior academic such as a professor during their period of assistance.