Court-appointed lawyers for indigents in Massachusetts are “crying foul” over fees not paid by the State, but they have started a “job action” that could easily run afoul of antitrust law. According to an article yesterday in The Standard-Times (New Bedford, MA)
“When lawyers submitted their bills for the end of the state’s fiscal year on July 1, they were told there was no money to pay them because the state account ran a $12 million deficit. They will not be paid until the Legislature passes a supplemental budget, which could come as soon as next week or as late as the fall.”
In protest, bar advocates have started a “job action”, that reporter Kibbe writes is expected to sweep the state in coming days. He explains that
“dozens of private lawyers in Bristol and Plymouth counties this week began refusing to accept new cases involving indigent clients” — a move that “threatens to overwhelm the state courts with thousands of poor defendants without lawyers to represent them. It has triggered a flurry of phone calls and meetings between court officials and state legislators.”The Standard-Times article notes that these private lawyers, called “bar advocates,” handle 90 percent of the 250,000 annual cases involving the state’s indigent clients in Juvenile, District and Superior courts.
Michele L. Rioux, a bar advocate who is the president of the New Bedford Bar Association, told the reporter that “We’re not whining. We chose to do this line of work. It’s the indigent people of the commonwealth who are going to suffer because fewer and fewer attorneys are going to be able to do this work because of this rate of pay.” Although the first half of my legal career was spent as an antitrust lawyer at the FTC, by the mid-90s, my entire
law practice consisted in representation of children in Family Courts in similar appointed cases. So I can well understand and remember how important receiving those State checks can be. [See my posting of 6/02/03, praising the fee increase for court-appointed lawyers in NYS.]Although the MA bar advocates might not be whining, they do appear to be engaged in joint action among otherwise independent providers of legal services — to wit, a concerted refusal to deal by competitors. If a court or agency deems the bar advocate “job action” to be a conspiracy in restraint of trade, it will almost certainly be treated as a per se violation of the antitrust law.
For example, in 1990, the U.S. Supreme Court applied the per se antitrust rule against boycotts and price fixing conspiracies to a group of court-appointed lawyers for the indigent, in FTC v. Sup. Ct. Trial Lawyers Ass’n, 493 U.S. 411. There was no question in SCTLA that antitrust applies to the legal profession and to the “strike” by court-appointed counsel, despite arguments by the defendants that they were protecting clients’ rights to quality legal services and exercising First Amendment rights.This isn’t legal advice from me, of course, but I suggest as a matter of client service and public relations that MA bar advocates forget about their “job action” and go back to business as usual on Monday. This problem may indeed be over with in a week [see our 7/18/03 posting] If it is, you’ll all feel better about yourselves and your legal liabilities regarding the antitrust laws, while averting a massive court calamity and avoiding a pr catastrophe.
For further reading on
how antitcompetitive practices by professionals such as medical doctors, engineers and lawyers came to be recognized as illegal under the antitrust laws, see this chapter in a monograph from the American Antitrust Institute.
ethicalEsq?ethicalEsq?ethicalEsq?
Thanks to Jerry Lawson at net.law.blog for adding ethicalEsq? to his list of Blogs I Log.