Justices on Massachusetts' highest court grappled at a hearing Wednesday with its ability to address an ongoing shortage of attorneys willing to represent indigent defendants, after lawyers in two of the state's busiest counties stopped taking cases in May in protest over the low pay compared with other states.

The state's public defender agency is asking the Supreme Judicial Court to step in to increase hourly pay rates for the private attorneys, known as bar advocates, after a phased-in $20 per hour raise approved by state legislators in July, failed to lure back enough lawyers.

That has left thousands of defendants in the state's two busiest counties without counsel since May, when large numbers of the attorneys who remained stopped accepting new cases, said Committee for Public Counsel Services attorney Rebecca Jacobstein. She said the result, at least temporarily, is a "systemic, ongoing denial of constitutional rights."

As of this week, at least 900 defendants in Middlesex and Suffolk counties were still waiting for lawyers, she told the court.

A justice of the court has already implemented a protocol intended to protect the rights of defendants without counsel, which requires release from custody after seven days without a lawyer and dismissal without prejudice after 45 days.

But stepping in to set a higher pay rate, or ordering lawmakers to do so, even on a temporary basis, could put the court at odds with the separation of powers in the state constitution, which grants the Legislature authority over spending, some of the justices said.

Chief Justice Kimberly S. Budd pointed to the efforts that have already been made by the court to protect defendants' rights, and by lawmakers who OK'd the raises and approved the hiring of 320 new staff attorneys for CPCS.

"Why shouldn't we let the process play out?" Justice Budd asked Jacobstein,

Jacobstein said that would take too long for defendants, who in the meantime may spend time in custody or face other restrictions on their liberty while lawyers are hired and trained. She later compared the current situation to a cartoon character sticking a thumb in a hole to plug a leak, only to have water spurt out from somewhere else.

The court's "Lavallee protocol," named for a case two decades ago involving a similar attorney shortage in western Massachusetts, is intended to protect defendants' rights by requiring dismissals, said Marina Pullerits, an attorney for the state trial courts in Middlesex and Suffolk counties said.

Several justices suggested that protocol, or a "tweaked" version of it, may be as far as the court is allowed to go.

"Isn't the answer to double down on the Lavallee protocol?" Justice Dalila Wendlandt, who issued the order implementing it in July, asked. "Isn't that the answer that keeps us in our zone?"

She and other justices suggested that the court could amend the protocol by shortening the waiting times for release or requiring cases be dismissed with prejudice so they cannot be re-filed — though some said that raised concerns about public safety.

Other justices questioned whether any action the court might take would be sufficient to overcome the objections of attorneys, who are seeking raises that would make their compensation comparable with nearby states.

Up until August, when lawmakers approved the raise, private lawyers for most court-appointed cases received $65 per hour in district and municipal courts, $85 per hour in Superior Court and $120 an hour for murder cases. By contrast, New York pays $158 per hour.

The private attorneys are seeking comparable pay — which in some cases would involve nearly doubling the hourly rate.

Some of the justices suggested that even if they determine they have the authority to order a rate increase, they have no evidence of whether that would be enough to resolve the situation.

Justice Scott Kafker noted that the Legislature's phased-in $20 per hour raise was actually more than CPCS had requested in its budget, yet still didn't bring back enough private lawyers, who were pressing for raises of $60 per hour.

"You have to do something, because right now, we're in a perpetual state of emergency," Jacobstein responded.

Pullerits, an assistant attorney general representing the lower courts, told the justices that they should stay out of setting new pay rates, but that should the high court opt to do so, it should make those changes temporary, given the separation of powers issue.

Justice Wendlandt, pointing to cases predating the creation of CPCS in the 1980s, noted that the court has previously allowed judges to assign counsel and determine rates without stepping into the Legislature's territory.

"I'm wondering how we lost that authority?" Justice Wendlandt said. The creation of a public defender agency, the justice said, was supposed to improve access to counsel, she said, but "now we're in a situation where we have defendants who don't have counsel."

The court has received friend of the court briefs in the case, including from the Massachusetts chapter of the American Civil Liberties Union.

In a statement after the hearing, chapter legal director Jessie Rossman said lawmakers have repeatedly failed to address the pay issue over the past two decades, making it time for the court to step in and find the current compensation scheme unconstitutional.

The petitioners are represented by Rebecca A. Jacobstein, Benjamin H. Keehn and Holly Smith of the Committee For Public Counsel Services.

The respondents are represented by Marina Pullerits and Jennifer Zalnasky of the Office of the Attorney General of the Commonwealth of Massachusetts.

The Suffolk County district attorney's office as intervenor is represented by its own Elisabeth Martino.

The case is the Committee for Public Counsel Services v. Middlesex and Suffolk County District Courts and Boston Municipal Court, case number SJC-13824, in the Supreme Judicial Court for the Commonwealth of Massachusetts.

--Editing by Amy French.