The stakes have been raised considerably in the battle of Massachusetts “bar advocates” to be paid for work performed in Fiscal Year ’03. In an August 14, 2003, Press Release, the non-profit Suffolk Lawyers for Justice, Inc., announced that its members would no longer accept new court-appointed cases as of Monday, August 18, 2003. [See today’s Taunton Gazette article, 8/15/03, by Scott Dolan, which headlines that the action “could paralyze the justice system in the state’s capital”]
The SLJ Press Release states:
“Collectively, the 335 lawyers who comprise Suffolk Lawyers for Justice are owed for many months of work performed this past fiscal year, and they overwhelmingly have voiced their intention to decline new cases until they are paid for that work.”
ethicalEsq? has addressed the “strike” by Massachusetts Bar Advocates –private attorneys who take court-appointed cases for indigents — several times, most recently in a posting on July 31, 2003, which (clearly unsuccessfully) asked the Bay State lawyers to stop their joint boycott. The posting, which contains numerous links to relevant materials, argues that the concerted refusal to accept new clients is very likely to violate the antitrust law, as well as injuring clients.
On August 10th, bar advocate Thomas Workman posted Comments at this site in which he presents the financial-equities case of his colleagues, and pointed out that they have not made any joint strike manifestos. Your Editor’s response can be found following that string.
Earlier this week, the Taunton Gazette reported (August 12th) that matters in Bristol County were getting ugly, after lawyers were told that the Massachusetts Legislature would not be taking up the supplemental budget until September or October. The Taunton Gazette states (emphasis added):
- So far, the strike has forced judges in Taunton District Court to release at least two accused criminals to the streets because no lawyers would represent them when prosecutors asked for them to be held on bail.
“I feel it’s time we stand together and do not take cases until at least we get a supplemental budget passed,” [attorney Michelle L.] Rioux told the crowd of lawyers.
Another attorney, Dana A. Sargent of New Bedford, said, “There are a little group of spoilers, four or five people, who are still taking cases — eating our lunches so to speak.”
One lawyer, James McKenna of North Attleboro, spoke vehemently against the strike and said lawyers in Attleboro District Court are still accepting cases. McKenna said he has heard attorneys in his home court call the strike a “fatal approach” and argued that the state traditionally underfunds CPCS until late in the year.
Apparently, some bar advocates are now willing to use coercive peer pressure to keep their “strike” from breaking down. Such policing of members to increase pressure on their “buyer” is a hallmark of the classic unlawful antitrust boycott.
The Legislature needs to make representation of the indigent a top priority — which means adequate and timely payment for lawyers who handle the cases. However, this joint refusal to deal s not only irresponsible and unlawful, it may very well prove counterproductive for the Bar Advocates of Boston. With the tax paypayer and voter as their ultimate paymaster, Bar Advocates should be improving their image and their public relations skills, not using strongarm tactics and indirectly causing defendants to be sent back on the streets. Lawyer McKenna might indeed be correct in suggesting that a strike could be a “fatal approach” to a problem that will surely be resolved when the Massachusetts Legislature returns in the Fall.
- Bristol County Bar Advocates have a Press Coverage Page on their website, which is updated regularly as events happen.
Update (8/16/03) See our posting on 8/16/03 concerning predictions of havoc in Boston courts on Monday, Aug. 18, 2003.
David:
I’m following your coverage of the attorney strike in Massachusetts with great interest. I stopped doing court appointed criminal work in DC just a few months before the DC government ran out of funds to pay CJA attorneys and I remember reading about the financial hardship this inflicted on lawyers who depended on CJA work for their livelihood. But what I also recall is that the DC Bar did little to support the CJA attorneys in their efforts to get emergency funding or partial payment. By contrast, whenever the DC Council proposes a commuter tax or professional licensing fees, you will see the big DC firms up in arms.
So I’m wondering what support the Mass bar and the large firms are giving to these court appointed lawyers who are working for what is basically “lunch money” for a large firm lawyer. These firms are hired to lobby for clients in the legislature, so I’m sure they have enough connections to get appropriations for criminal defense – if they so desired. But maybe they prefer suing localities in Mississippi for failing to carry out the promise of Gideon instead of addressing the injustices in their own backyards.
I’ve done some quick research on google but not come up with much – I’d like to blog about that issue so if you have any thoughts, please pass them along. Carolyn Elefant http://www.myshingle.com
Comment by Carolyn Elefant — August 16, 2003 @ 8:19 pm
David:
I’m following your coverage of the attorney strike in Massachusetts with great interest. I stopped doing court appointed criminal work in DC just a few months before the DC government ran out of funds to pay CJA attorneys and I remember reading about the financial hardship this inflicted on lawyers who depended on CJA work for their livelihood. But what I also recall is that the DC Bar did little to support the CJA attorneys in their efforts to get emergency funding or partial payment. By contrast, whenever the DC Council proposes a commuter tax or professional licensing fees, you will see the big DC firms up in arms.
So I’m wondering what support the Mass bar and the large firms are giving to these court appointed lawyers who are working for what is basically “lunch money” for a large firm lawyer. These firms are hired to lobby for clients in the legislature, so I’m sure they have enough connections to get appropriations for criminal defense – if they so desired. But maybe they prefer suing localities in Mississippi for failing to carry out the promise of Gideon instead of addressing the injustices in their own backyards.
I’ve done some quick research on google but not come up with much – I’d like to blog about that issue so if you have any thoughts, please pass them along. Carolyn Elefant http://www.myshingle.com
Comment by Carolyn Elefant — August 16, 2003 @ 8:19 pm
Carolyn,
The D.C. bar might be too tilted toward lawyers with federal-government-oriented practices, to give much concern to their poor cousins, the maligned “5th Streeters.” In NYS, I have found that county bar associations are very interested in increased assigned counsel fees, because so many general practitioners are (or once were)on the panel and, in a state with an overabundance of lawyers, many have enough downtime that even low-fee hours are worth accepting.
I just did some research and came up with the following potential sources for this interesting and important topic:
The NYS Defenders Association has a significant list of links relating to Assigned Counsel Fees [ at
http://www.nysda.org/Hot_Topics/Assigned_Counsel_Rates/assigned_counsel_rates.html ]. Included is a lengthy list of NY bar associations supporting increased fees [ at http://www.nysda.org/Hot_Topics/Assigned_Counsel_Rates/assigned_counsel_rates.html#Resolutions ], as well as coverage of events outside of NYS [at http://www.nysda.org/Hot_Topics/Assigned_Counsel_Rates/assigned_counsel_rates.html#CurrentDevsOutsideNY ].
My ethicalEsq? posting on June 2, 2003, discusses the NYSBA support for the recent increase in New York State in assigned counsel fees [at http://blogs.law.harvard.edu/ethicalesq/2003/06/02 ] .
For Massachusetts information, try the Bristol Country Bar Advocates website [ http://www.bristolcpcs.org/ ], which also has information on action in other states —
[ http://www.bristolcpcs.org/Actions.html ]
The Mass. Bar website was not very user-friendly, but I did find a press release saying that The Boston Bar was among a half dozen bar groups in July urging action on a supplemental budget for legal services to the indigent [ http://www.bostonbar.org/prs/veto.htm ]. You might also find info on assigned counsel fees there or at the websites of the organizations mentioned in the press release.
Hope this helps. david
Comment by David Giacalone — August 16, 2003 @ 10:10 pm
Carolyn,
The D.C. bar might be too tilted toward lawyers with federal-government-oriented practices, to give much concern to their poor cousins, the maligned “5th Streeters.” In NYS, I have found that county bar associations are very interested in increased assigned counsel fees, because so many general practitioners are (or once were)on the panel and, in a state with an overabundance of lawyers, many have enough downtime that even low-fee hours are worth accepting.
I just did some research and came up with the following potential sources for this interesting and important topic:
The NYS Defenders Association has a significant list of links relating to Assigned Counsel Fees [ at
http://www.nysda.org/Hot_Topics/Assigned_Counsel_Rates/assigned_counsel_rates.html ]. Included is a lengthy list of NY bar associations supporting increased fees [ at http://www.nysda.org/Hot_Topics/Assigned_Counsel_Rates/assigned_counsel_rates.html#Resolutions ], as well as coverage of events outside of NYS [at http://www.nysda.org/Hot_Topics/Assigned_Counsel_Rates/assigned_counsel_rates.html#CurrentDevsOutsideNY ].
My ethicalEsq? posting on June 2, 2003, discusses the NYSBA support for the recent increase in New York State in assigned counsel fees [at http://blogs.law.harvard.edu/ethicalesq/2003/06/02 ] .
For Massachusetts information, try the Bristol Country Bar Advocates website [ http://www.bristolcpcs.org/ ], which also has information on action in other states —
[ http://www.bristolcpcs.org/Actions.html ]
The Mass. Bar website was not very user-friendly, but I did find a press release saying that The Boston Bar was among a half dozen bar groups in July urging action on a supplemental budget for legal services to the indigent [ http://www.bostonbar.org/prs/veto.htm ]. You might also find info on assigned counsel fees there or at the websites of the organizations mentioned in the press release.
Hope this helps. david
Comment by David Giacalone — August 16, 2003 @ 10:10 pm
David and Carolyn,
There has been an unexplained hostility to the cause of fair compensation for those who represent indigent criminal defendants, a hostility from the Mass Bar Association, the Boston Bar Association, NACDL, and the ABA. Many of these organizations have web sites that contain material on other jurisdictions and their struggle for wages, but for whatever reason refuse to cover the story in Massachusetts. It is not because they do not know about it. I have personally spoken with officers of all of these organizations, and gotten a cold shoulder in too many instances. The only correlation I can find (in a number of situations) is that when these organizations bring the actions, they cover the story, and when someone else brings the action, they tend to ignore it (this is an over simplification).
The letter (which you provided in your blog) from the major bar associations in Massachusetts asked that funding be restored for several full time providers of legal services, a just and worthy cause, but did NOT request that funding be provided to those in the private bar who were owed money. Many legislators thought that they were correcting ALL of the shortages, as a result of lobbying by the bar associations that this was what needed to be done. The bar associations are run by the big firms, and are part of the problem, in my view. It is shameful, in my view, that they have not provided so little support for the cause of indigent criminal defense.
The FTC v Superior Court Lawyers case, decided by the US Supreme court, has been before the attorneys in Massachusetts for years. Lawyers here did not just discover it as a result of postings here. Most attorneys here disagree with the interpreted holding that is suggested by David in his postings on this BLOG.
David suggests that the case stands for the proposition that attorneys may not organize and refuse to offer their services for any reason. The case was decided on the basis of the per-se violation of taking action for the purposes of setting fees. You will notice in the press release for the Suffolk Lawyers that the action is being taken until lawyers GET PAID.
It is common practice for all lawyers to refuse new work when their clients have not paid them for work already done. This is not a practice unique to attorneys, my fuel oil delivery service will not deliver oil to my house if I have not paid for my last delivery. Had the US Supreme Court had before it an issue of lawyers who would not work for an agency of the government that had breached their contract with the lawyers, by not paying them, I would suggest that the holding might have been very different. We will never know for sure, because the US Supreme COurt has not considered that fact pattern.
In Massachusetts, we have a lawsuit pending which narrowly addresses the illegality of the level of pay. We are not contending that the government has not set a fair rate of pay. A fair rate of pay has been set by CPCS, the administrative agency tasked with setting the rate, but the Legislature has refused to fund the rate set by CPCS. In fact the rate has been set to amounts significantly higher (this past year it was double) than what is paid for the past seven years. One count of our complaint seeks to have the phrase “subject to appropriation” in the enabling statute (MGL 211D) declared unconstitutional.
While we adamantly deny that anything in Massachusetts is being done which violates the law, there is a recognition that oppressive and hostile work conditions and wages cannot be imposed on any group for any extensive period of time, without some reaction. In the area of criminal defense services, where 90% of the market is controlled by government, the conspiracy to set rates, and the oppressive policies that forbid lawyers to organize in any fashion to fight for their position, is unjust.
A remotely similar situation rests with the medical profession, where competing HMOs cannot conspire to set rates, and where no significant portion of the market is controlled by any single person or organization. In no other arena is the strangle-hold on the market so complete and so draconian as in the funding of defense for the indigent. It should be no surprise that lawyers accross the country have begun to say “enough is enough”.
Thomas Workman
Comment by Thomas Workman — August 17, 2003 @ 12:43 pm
David and Carolyn,
There has been an unexplained hostility to the cause of fair compensation for those who represent indigent criminal defendants, a hostility from the Mass Bar Association, the Boston Bar Association, NACDL, and the ABA. Many of these organizations have web sites that contain material on other jurisdictions and their struggle for wages, but for whatever reason refuse to cover the story in Massachusetts. It is not because they do not know about it. I have personally spoken with officers of all of these organizations, and gotten a cold shoulder in too many instances. The only correlation I can find (in a number of situations) is that when these organizations bring the actions, they cover the story, and when someone else brings the action, they tend to ignore it (this is an over simplification).
The letter (which you provided in your blog) from the major bar associations in Massachusetts asked that funding be restored for several full time providers of legal services, a just and worthy cause, but did NOT request that funding be provided to those in the private bar who were owed money. Many legislators thought that they were correcting ALL of the shortages, as a result of lobbying by the bar associations that this was what needed to be done. The bar associations are run by the big firms, and are part of the problem, in my view. It is shameful, in my view, that they have not provided so little support for the cause of indigent criminal defense.
The FTC v Superior Court Lawyers case, decided by the US Supreme court, has been before the attorneys in Massachusetts for years. Lawyers here did not just discover it as a result of postings here. Most attorneys here disagree with the interpreted holding that is suggested by David in his postings on this BLOG.
David suggests that the case stands for the proposition that attorneys may not organize and refuse to offer their services for any reason. The case was decided on the basis of the per-se violation of taking action for the purposes of setting fees. You will notice in the press release for the Suffolk Lawyers that the action is being taken until lawyers GET PAID.
It is common practice for all lawyers to refuse new work when their clients have not paid them for work already done. This is not a practice unique to attorneys, my fuel oil delivery service will not deliver oil to my house if I have not paid for my last delivery. Had the US Supreme Court had before it an issue of lawyers who would not work for an agency of the government that had breached their contract with the lawyers, by not paying them, I would suggest that the holding might have been very different. We will never know for sure, because the US Supreme COurt has not considered that fact pattern.
In Massachusetts, we have a lawsuit pending which narrowly addresses the illegality of the level of pay. We are not contending that the government has not set a fair rate of pay. A fair rate of pay has been set by CPCS, the administrative agency tasked with setting the rate, but the Legislature has refused to fund the rate set by CPCS. In fact the rate has been set to amounts significantly higher (this past year it was double) than what is paid for the past seven years. One count of our complaint seeks to have the phrase “subject to appropriation” in the enabling statute (MGL 211D) declared unconstitutional.
While we adamantly deny that anything in Massachusetts is being done which violates the law, there is a recognition that oppressive and hostile work conditions and wages cannot be imposed on any group for any extensive period of time, without some reaction. In the area of criminal defense services, where 90% of the market is controlled by government, the conspiracy to set rates, and the oppressive policies that forbid lawyers to organize in any fashion to fight for their position, is unjust.
A remotely similar situation rests with the medical profession, where competing HMOs cannot conspire to set rates, and where no significant portion of the market is controlled by any single person or organization. In no other arena is the strangle-hold on the market so complete and so draconian as in the funding of defense for the indigent. It should be no surprise that lawyers accross the country have begun to say “enough is enough”.
Thomas Workman
Comment by Thomas Workman — August 17, 2003 @ 12:43 pm