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Massachusetts Supreme Judicial Court Rule 3:10: Assignment of Counsel

(Applicable to all courts)

[Disclaimer]

Section 1. Definitions. The following definitions apply in this rule:

(a) Anticipated Cost of Counsel -- The cost of retaining private counsel for the defense of a felony charge within the jurisdiction of the Superior Court, as estimated and published from time to time by the Committee for Public Counsel Services.

(b) Available Funds --

(i) General Definition. A party's liquid assets and disposable net monthly income calculated after provision is made for the party's bail obligations.

(ii) Certain Assets and Income of Party's Household. A party's available funds shall include the liquid assets and disposable net monthly income of the party's spouse (or person in substantially the same relationship) and each of the party's parents, provided, in each instance, any such person lives in the same residence as the party and contributes substantially toward the household's basic living expenses, unless that other person has an adverse interest in the proceeding (e.g., is the victim, complainant, or petitioning party, is a prospective prosecution witness, or is a party, if it is a civil matter).

(iii) Available Funds of a Party over Sixteen Supported by Another. The available funds of any party over the age of sixteen who is substantially supported by a parent or parents or by a guardian, or who continues to be claimed as a dependent for tax purposes, shall include the available funds of that person's parent or parents or guardian, except when that other person has an adverse interest in the proceeding.

(iv) Available Funds of a Party under Seventeen. The available funds of a party under the age of seventeen (including a child allegedly in need of services and an allegedly delinquent child, as defined in G. L. c. 119, §§ 21 & 52, respectively) shall include available funds of the child's parents or guardian, regardless of their place of residence, except when that other person has an adverse interest in the proceeding.

(c) Basic Living Costs -- The average monthly amount spent for reasonable payments, including loan payments, toward living costs, such as shelter, food, utilities, health care, transportation, clothing, education, and support payments.

(d) Disposable Net Monthly Income -- The income remaining each month after deducting income taxes, social security taxes, contributory retirement, union dues, and basic living costs.

(e) Income -- Salary, wages, interest, dividends, rental income, and other earnings and cash payments, such as amounts received from pensions, annuities, social security, and public assistance programs.

(f) Indigent -- A party who is:

(i) receiving one of the following types of public assistance: Aid to Families with Dependent Children (AFDC), Emergency Aid to Elderly, Disabled and Children (EAEDC), poverty related veterans' benefits, food stamps, refugee resettlement benefits, Medicaid, or Supplemental Security Income (SSI);

(ii) receiving an annual income, after taxes, one hundred twenty five percent or less of the then current poverty threshold referred to in G. L. c. 261, § 27A(b);

(iii) residing in a tuberculosis treatment center or a public or private mental health, mental retardation or long term care facility, including the Bridgewater State Hospital and the Treatment Center, or the subject of a proceeding in which admission or commitment to such a center or facility is sought, or who is the subject of a proceeding in which a substituted judgment determination concerning treatment is sought, provided, however, that where the judge has reason to believe that the party is not indigent, a determination of indigency shall be made in accordance with Section 4 and other applicable provisions of this rule. The provisions of paragraph (b) of Section 1 of this rule notwithstanding, for purposes of such determination "available funds" shall not include the liquid assets or disposable net monthly income of any member of the party's family.

(iv) serving a sentence in a correctional institution and has no available funds; or

(v) held in custody in jail and has no available funds.

(g) Indigent but Able to Contribute -- A party who

(i) has an annual income, after taxes, of more than one hundred twenty five percent and less than two hundred fifty percent of the then current poverty threshold referred to in G. L. c. 261, § 27A(b), or

(ii) is charged with a felony within the jurisdiction of the Superior Court and whose available funds are insufficient to pay the anticipated cost of counsel for the defense of the felony but are sufficient to pay a portion of that cost.

(h) Liquid Assets -- Cash, savings accounts, bank accounts, stocks, bonds, certificates of deposit, equity in real estate, and equity in a motor vehicle or in other tangible property; provided that any equity in real or personal property is reasonably convertible to cash. Any motor vehicle necessary to maintain employment shall not be considered a liquid asset.

(i) Party -- A defendant in a criminal proceeding, a juvenile in a delinquency proceeding, and any person, including a juvenile, in a civil matter in which the person has a right to counsel.

Section 2. Advice as to Right to Counsel. If any party to a proceeding in which the law of the Commonwealth or the rules of this court establish a right to be represented by counsel initially appears in any court without counsel, the judge shall advise the party, or if the party is a juvenile or is under guardianship, the party and a parent or legal guardian, where appropriate, that: (a) the law requires that counsel be available in the proceeding, at public expense if necessary and (b) if the court finds that the party wants counsel and cannot afford counsel, the Committee for Public Counsel Services will provide counsel at no cost or at a reduced cost. Thereafter, the judge shall make findings as provided in the following sections of this rule.

Section 3. Waiver of Counsel. If the party knowingly elects to proceed without counsel, a written waiver by the party and a certificate of the judge on the form hereafter provided in this section shall be signed by the party and the judge, respectively, and filed with the papers in the case. If the party knowingly elects to proceed without counsel but refuses to sign the form hereafter provided, the judge shall so certify on that form, which shall be filed with the papers in the case.

In proceedings pursuant to General Laws, chapter 111, §§ 94C and 94G, chapter 123, chapter 123A, and chapter 201, prior to allowing a waiver, the judge shall specifically determine whether the party is competent to waive counsel. Notwithstanding such waiver, if the judge determines that the party is not competent to waive counsel or is otherwise unable effectively to exercise the party's rights at a hearing, the judge shall appoint standby counsel pursuant to Section 6.

The following waiver form shall be used as provided in this Section:

COMMONWEALTH OF MASSACHUSETTS

Docket Nos.
____________________________
____________________________

DETERMINATION WITH RESPECT TO
WAIVER OF RIGHT TO COUNSEL
PURSUANT TO S.J.C. RULE 3:10


_______________Court Department ________________ Court

CASE NAME

________________________

vs.

________________________


I. Statement of Party

I, ___(Name of Party)___, have been informed of my right to have a lawyer represent me at every stage of the proceedings in this case, and that if I cannot afford to hire my own lawyer, this Court will assign the Committee for Public Counsel Services to provide representation for me. KNOWING THAT I HAVE A RIGHT TO HAVE A LAWYER REPRESENT ME, I NEVERTHELESS ELECT TO PROCEED IN THIS MATTER WITHOUT A LAWYER AND WAIVE MY RIGHT TO SUCH A LAWYER.

___________________________
Printed or Typed Name of Person Signing

_________________________
Signature of Party or Parent or Guardian
for Incompetent/Juvenile

Signed this __________ day of ________________, 19____.


II. CERTIFICATE OF JUDGE

i hereby certify that the party named above has been informed, by me, of the right to counsel in accordance with Supreme Judicial Court Rule 3:10 and G.L. c.211D, § 5; that the party has knowingly elected to proceed without a lawyer and

______ has executied a waiver of counsel in my presence,

______ has refused to sign a waiver

___(Signature of Judge)___ ___(Printed or Typed Name of Judge) __(Date)____

Section 4. Determination of Indigency Status.

(a) If the judge finds that the party has not knowingly elected to proceed without counsel and the party does not arrange to obtain counsel, the judge shall receive a written report and opinion as to indigency from a probation officer or other appropriate court employee as provided in Section 8 of this rule. After reviewing the report and opinion and interrogating the party, as appropriate, the judge shall make one of the following three determinations:

(i) the party is indigent,

(ii) the party is indigent but able to contribute, or

(iii) the party is not indigent.

The judge shall enter findings on the following form, which shall be filed with the papers in the case:

COMMONWEALTH OF MASSACHUSETTS

Docket Nos.
____________________________
____________________________

JUDGE'S DETERMINATION
WITH RESPECT TO INDIGENCY
PURSUANT TO S.J.C. RULE 3:10


_______________Court Department ________________ Court

CASE NAME

________________________

vs.

________________________


After considering the report and recommendation of the probation officer or other appropriate court employee, and after interrogating the party, if appropriate, based upon the standards in Supreme Judicial Court Rule 3:10, I FIND THAT THE PARTY IS:

I. ________ INDIGENT because the party:

  • _______ receives Aid to Families with Dependent Children (AFDC).
  • _______ receives Emergency Aid to Elderly, Disabled and Children (EAEDC).
  • _______ receives poverty related veterans' benefits.
  • _______ receives food stamps.
  • _______ receives refugee resettlement benefits.
  • _______ receives Medicaid.
  • _______ receives Supplemental Security Income (SSI).
  • _______ is a patient in a mental health facility or treatment center (or is the subject of a proceeding for admission to such a facility) and lacks available funds.
  • _______ is serving a sentence in a correctional institution and has no available funds.
  • _______ is held in custody in a jail and has no available funds.
  • _______ has an annual income, after taxes, 125% or less of the current poverty threshold referred to in G.L. c. 261, § 27A(b).
  • _______ is determined to be indigent pursuant to S.J.C. Rule 3:10, Section 4(b) [Judge's Section 4(b) findings on the record are appended].

II. _______ INDIGENT BUT ABLE TO CONTRIBUTE and is therefore ordered to pay $_______ toward the cost of counsel because the party:

  • _______ has an annual income, after taxes, of more than 125% and less than 250% of the current poverty threshold referred to in G.L. c. 261, § 27A(b).
  • _______ is charged with a felony within the jurisdiction of the Superior Court and has available funds sufficient to pay a portion of the anticipated cost of counsel.
  • _______ is determined to be indigent but able to contribute pursuant to S.J.C. Rule 3:10, Section 4(b) [Judge's Section 4(b) findings on the record are appended].

III. _______ NOT INDIGENT and is able to pay the cost of counsel. [Judge's findings on the record are appended if this finding is pursuant to S.J.C. Rule 3:10, Section 4(b)].

_________________
Date

________________________
Signature of Judge

 

(b) In making the determination called for by this Section, the judge shall apply the definitions of indigent and indigent but able to contribute set forth in Section 1 of this rule. Notwithstanding the determination that the application of those definitions indicates, a judge nevertheless may place a party in either of the other categories described in Section 4(a), based on a consideration of the party's available funds in relation to the party's basic living costs or based on special circumstances, or both, provided that the judge sets forth in findings on the record the reason for doing so.

Section 5. Assignment of Counsel/Notice of Assignment. If under Section 4 of this rule the judge finds that a party is in category (i) or (ii) of Section 4(a), the judge shall assign the Committee for Public Counsel Services to provide representation for the party, unless exceptional circumstances, supported by written findings, necessitate use of a different procedure that is consistent with G. L. c. 211D and the rules of this court. The court clerk or register shall promptly complete and transmit a Notice of Assignment of Counsel Form, provided by the Committee for Public Counsel Services with the approval of this court, to the party and shall file a copy with the papers in the case.

In proceedings pursuant to General Laws, chapter 111, §§ 94C and 94G, chapter 123, chapter 123A, and chapter 201, the judge shall appoint counsel immediately upon the filing of a petition. If, prior to the commencement of a hearing in such proceedings, the judge determines that the party is not indigent, assigned counsel may be dismissed, and, if so, the party shall be advised to retain private counsel without delay; provided, however, that if the interests of justice so require in such proceedings, the judge shall authorize the continued services of appointed counsel at public expense. The interests of justice may require such appointment if, for example, the party is incompetent to obtain counsel, incapable of obtaining access to funds, or incapable of locating or contracting with a lawyer. If, subsequent to the commencement of a hearing in such proceedings, the judge determines that the party is not indigent, assigned counsel shall continue to represent the party and the party may be ordered to reimburse the Commonwealth therefor.

If under Section 4 of this rule a judge has found that a party is not indigent, but after a reasonable time the party has not waived counsel, procured counsel, or seasonably petitioned the court for the appointment of counsel on the basis that, after a reasonable effort, the party has been unable to retain counsel because of financial reasons, then the case may be ordered to proceed.

Section 6. Standby Counsel. Notwithstanding a party's waiver of counsel, the judge may assign counsel in accordance with this rule to be available to assist the party in the course of the proceedings.

Section 7. Review of Indigency Determination.

(a) A party's indigency status may be reviewed at any stage of a court proceeding if information regarding a change in financial circumstances becomes available to a probation officer or other appropriate court employee, through the court's verification system, or from some other source, including the party.

(b) A party has the right to reconsideration in a formal hearing of the findings and conclusion as to the party's entitlement to assigned counsel.

Section 8. Report by Probation Officer or Other Appropriate Court Employee. The probation officer or other appropriate court employee shall provide to the judge a written report and opinion as to indigency on a form prescribed by this court based on information obtained from the party and subject to a verification system established by the Chief Justice for Administration and Management of the Trial Court. The form shall include information necessary to provide a basis for making a determination with respect to indigency as provided in this rule.

Section 9. Inadmissibility of Information Obtained From a Party. No information provided by a party pursuant to this rule may be used in any criminal or civil proceeding against the party except in a prosecution for perjury or contempt committed in providing such information.

Section 10. Counsel for Parties Indigent and Indigent but Able to Contribute.

(a) Appearance of Counsel. Counsel assigned by the Committee for Public Counsel Services to represent a party pursuant to this rule shall file an appearance in the case within forty eight hours after notification of the assignment.

(b) Withdrawal of Appearance. If counsel assigned by the Committee for Public Counsel Services, who has filed an appearance, is unable or unwilling to represent a party, he shall move to withdraw his appearance. If the judge consents to the motion for withdrawal, the court clerk or register shall immediately notify the Committee for Public Counsel Services to make a new assignment of counsel.

(c) Payment of Counsel Costs.

(i) While determined to be indigent, a party may not be ordered, required, or solicited to make any payment toward the cost of counsel, except for an order entered pursuant to G. L. c. 211D, § 2A.

(ii) If a party is determined to be indigent but able to contribute, the judge shall order the party to pay a reasonable amount to the probation officer or other appropriate court employee toward the cost of counsel in addition to assessing a legal counsel fee as provided in G. L. c. 211D, § 2A. The amount ordered to be paid shall be based on the financial circumstances of the party.

(iii) All funds received as payment toward the cost of counsel, including amounts received pursuant to G. L. c. 211D, § 2A, shall be deposited with the State Treasurer in accordance with law.