The Boston Globe reported today that Massachusetts “bar advocates” are continuing to protest over their generally low pay and their failure to be paid for Fiscal ’03 services they have performed. (Bar advocates stage protest: They refuse cases on budget issues, by Kathleen Burge, 7/31/03.) Bar advocates are court-appointed attorneys for the indigent, who work in private law practice, and are paid by the hour.
In two postings over the past weekend (July 26, 2003), this blawg reminded my Bay State colleagues that concerted refusals to deal by otherwise independent sellers of services violate the antitrust law — even when done by professionals for quality of service or other public interest purposes, and even when done by “good guys” like low-paid court-appointed attorneys. I’m even going to cite the U.S. Supreme Court case again for them, FTC v. Sup. Ct. Trial Lawyers Ass’n, 493 U.S. 411 (1990). Unions of employees have specific antitrust immunity for strikes and boycotts. Private attorneys simply do not.
Some of the protesting lawyers might have gotten the antitrust liability message. In the Globe article, for example, Taunton lawyer Robert P. Kidd went syntactically out of his way to stress that each lawyer was acting unilaterally:
“Spontaneously, attorneys like myself were just pushed over the edge,” said Robert P. Kidd, a Taunton lawyer refusing new cases. “Individual attorneys said: ‘Enough is enough. I can’t afford to take these cases anymore.’ ”
Nonetheless, the article certainly suggests some coordination is going on (emphases added):
- “One day last week, Kidd temporarily brought business in Wareham District Court to a halt when he announced that he would not take on the day’s cases. The judge queried as many as 10 other lawyers in the room, who also refused to take on clients. Finally, one lawyer agreed.” And,
- “The lawyers had originally planned their work stoppage for the fall, but after they heard about budget problems last week, some acted sooner. They say they may continue their walkout at least until the Legislature replaces some of the money cut from the budget of the last fiscal year, perhaps longer.” And,
- “‘I think the point is to send a message,’ said Paul J. Machado, a Fall River lawyer representing the bar advocates in a class-action lawsuit filed last year that demands more money. ‘The message is how invaluable these services are. The court does not function without these services being provided.'”
Joint boycotts by competitors are banned because their coercive effects unfairly skew market forces, forcing the buyer to pay more for services or products or change conduct in some other way. Here, the government — and ultimately the taxpayer — is the buyer. By jointly refusing cases or threatening to do so, the bar advocates are counting on their coercive “message” to produce an increase in fees. (And, maybe counting on the backlogged cases to be waiting for them when the boycott is over.) This is no way for officers of the court, and self-proclaimed defenders of the down-trodden, to be acting.
Trained and experienced lawyers ought to be able to come up with a lawful way to lobby and to get their message to the public and state officials.* Claiming “individual” actions while acting “concertedly” doesn’t cut the muster. My plea to my colleagues: Take those cases, serve your clients, lobby like hell.
*Footnote: You can find a lot of information about the bar advocates’ battle for better compensation at the website of the Bristol County Bar Advocatesincluding a comparison chart showing compensation rates in other states. Additional resources include:
- A page on the activity in other states to gain increased fees, “through the filing of lawsuits or through work stoppages”
- Information on their Compensation Lawsuit
- Participation in a “Lobby Day“ in Boston, on March 18, 2003 (the 40th anniversary of Gideon v. Wainwright, which guaranteed the right to counsel for indigent criminal defendants),
A link to the ABA’s “Ten Principles of a Public Defense Delivery System.”
For a Directory of County Bar Advocate Bureaus in Massachusetts, click here.