f/k/a archives . . . real opinions & real haiku

July 27, 2003

Update: Bar Advocates’ Boycott Threat Gets Reaction in Boston

Filed under: pre-06-2006 — David Giacalone @ 12:55 am

With a court crisis looming, legislators in Massachusetts are promising to make sure that “bar advocates” (court-appointed lawyers for the indigent) are paid in full for work they did during the past fiscal year.  According to an article in The Standard-Times (New Bedford, MA), captioned Action to end lawyers’ protest may come soon (by David Kibbe, July 26, 2003), “Legislative leaders indicated yesterday that they would act soon to pay money owed to lawyers for the indigent to stave off a work protest that is threatening to cripple the state court system.”

According to the The Standard-Times news report, “When the state’s bar advocates submitted their bills for the end of the state’s fiscal year on July 1, they were told the state had no money to pay them because the account for the Committee for Public Counsel Services had been underfunded by $12 million.”  In response, State Sen. Mark C.W. Montigny, D-New Bedford, declared that Gov. Romney and the Legislature had an obligation to pay the lawyers.

“The grievance of these hardworking, underpaid individuals is an accurate one,” Sen. Montigny said. “They are being treated unfairly. At this point, I can’t say I blame them for being fed up, but let’s make sure not one client is injured because of this protest that rightly should be aimed at the governor and the Legislature.”

Additional details can be found in an article published over the weekend by The Taunton Gazette (by Scott Dolan, 7/26/03), and an AP report on Friday in the Boston Globe (by Ken Maguire, 7/25/03).  Both articles note that Massachusetts appointed counsel for the poor are paid from $30 to $39 per hour (third lowest in the nation), which often does not cover office overhead. The Staunton Gazette quotes State Rep. James H. Fagan, D-Taunton as saying that the solution to the budget shortfall will rest with Gov. Romney, because none of the legislators will propose a supplemental budget.  “Lawyers who do CPCS work, in my opinion, have been tremendously underpaid for years,” Fagan said. “I’ve always considered it a total embarrassment that the lawyers that take these cases are treated like second-class citizens.”

The article also quotes Taunton attorney Thomas E. Workman, Jr., who said he is owed $25,000 for work completed in fiscal year 2003.  According to the Taunton Gazette (emphasis added):

Lawyers on the list for court appointment cannot technically go on strike, because they are not state employees and not part of a union, [Workman] said. Workman and several other lawyers already had a class-action suit pending against the state petitioning for a pay increase in superior court, when CPCS ran out of money. “I’m not leading this. I’m not a ringleader,” Workman said of the work stoppage. Attorney Brian D. Roman was in Taunton District Court yesterday, and said every lawyer there refused court-appointed cases.

The AP/Globe piece quotes Michelle Rioux, president of the New Bedford Bar Association, as saying ”We’re receiving e-mails daily from around the state.” She added, “After expenses, I’m probably averaging about $10 per hour.” In Bristol County, 60 lawyers called in on Friday to say they won’t take new cases.

My posting earlier today (Saturday) explained the potential antitrust liability faced by the bar advocates if they acted jointly to refuse new cases.

  • Personal Note:  I was an antitrust attorney at the Federal Trade Commission in the late 1980’s, when a similar group of court-appointed D.C. attorneys boycotted the local courts in an attempt to have their fee levels increased. Some Commission officials were reluctant to take action against such sympathetic legal colleagues, who were among the lowest-paid in the profession. The Commission nonetheless filed a petition against the D.C. lawyers, and they were held in violation of the antitrust laws. The case was upheld by the U.S. Supreme Court in FTC v. Sup. Ct. Trial Lawyers Ass’n, 493 U.S. 411 (1990). The threat to competition and the resulting harm to clients (consumers), buyers (the government), the judicial system, and the rule of law prompted me to support the SCTLA petition at the time it was filed by the Commission, and I still strongly believe that the results in are SCTLA correct.    Since they have already performed the work, the Massachusetts Bar Advocates are in an even more sympathetic position than the D.C. lawyers.  Nonetheless, and despite having worked exclusively as a court-appointed lawyer for several years, I continue to believe that a concerted refusal to deal — with its inherent coercive effects and intent — is not warranted and should not be tolerated.   More than ever, uncertainty over being paid is an integral part of receiving money for services to any government entity.  Citizens and lawyers need to work to make payment for legal services to the poor a higher priority.   The antitrust law would permit an Individual lawyer (or law firm) to refuse to take cases, but they may not act in concert. 

(Catching) Update (7/27/03): Through the wonders of luck and web research, I just stumbled across an AP report from KATU 2 News in Portland, Oregon, dated May 21, 2003, stating that “The Federal Trade Commission is investigating whether 43 contract defense lawyers in Clark County [Oregon] broke any laws by refusing to take new murder cases until the county paid them more money. Jeff Sowder, organizer of the strike, says he will comply with a request from the FTC’s Northwest regional office to turn over documents related to the protest. Among them is a “manifesto” signed by 43 attorneys and distributed to Superior Court judges in late 2001.” (emphases added).

update: On June 14, 2004, the FTC issued a complaint against the Clark County “consortium” of attorneys and accepted a Consent Agreement containing a Cease and Desist order.   (FTC Press Release, with links)

I wasn’t able to find information on the FTC website about the investigation, which suggests that it’s existence has not been offically acknowledged.  .

  • You can find a mountain of information about Assigned Counsel Fees around the nation, on the excellent website of the New York State Defenders Association.


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