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August 19, 2003

Judges and Press Feel the Pain of Boycotting Boston Lawyers

Filed under: pre-06-2006 — David Giacalone @ 12:40 pm

Update I: The Boston Globe reported this morning on the disruption caused by yesterday’s boycott in Boston courts.  For some reason, the Globe continues to call this refusal to take cases a “strike” rather than a group boycott by competitors.  It has failed to raise the antitrust issues presented by the boycott — despite, for example, the efforts of ethicalEsq? to bring the issue to the attention of the Globe editors and staff.  (“Lawmakers OK back pay after lawyers refuse clients,” by Kathleen Burge and Rick Klein, Globe Staff, 8/19/2003.)


The article states, per Governor Mitt Romney’s Press Secretary, that the Governor is expected to sign the measure after his office reviews it. (The lawyers vow to refuse cases until the legislation is signed.)   The Globe notes that, “House Judiciary Committee chairman Eugene L. O’Flaherty said the lawyers were never in danger of not being paid. The books aren’t formally closed on fiscal year 2003 until September. Every year, the Legislature addresses unpaid bills from the previous fiscal year.” (emphasis added) 


Editor’s Note:  It has been clear all along that the issue here was when rather than if the bar advocates would be paid. Rather than individually deciding, in effect, whether to continue to take cases while extending further credit to the State, the group refusal to accept new cases until payment is a coercive attempt to force immediate payment by the State — a group refusal to extend further credit to the State, backed up by a refusal to deal with the Buyer until it complies.  This is a classic, naked restraint of trade under the antitrust law. 


To help avert disaster, according to the Globe, “Brad Greenberg, a Brockton lawyer, filled in for the absent defense lawyers in at least five cases in Dorchester District Court.”  Greenberg said:

”I care very much how much they get paid. But I also have a responsibility as an officer of the court to help with the administration of justice.”

However, the article explains that “lawyers who were on strike lambasted Greenberg for undercutting their efforts” (emphasis added):

”He’s not trained to do this kind of work,” said lawyer Anthony R. Ellison, as he stood outside on the steps of the courthouse. ”He’s acting as a scab. I want him to explain to my kids why their daddy is not getting paid.”

Sadly, rather than insisting that the boycotting lawyers end their unlawful activity and stop pressuring lawyers willing to take cases, affected judges voiced sympathy and frustration.   One even felt the pain of the boycotting bar advocates:

”I think the lawyers are finding this very painful,” Judge Edward Redd said as he sat in his chambers at the Roxbury courthouse with Judges Milton Wright and Paul Leary. ”I think it’s analogous to doctors not being able to help somebody in need.”

This editor is wiping the tears from his eyes as he types this final paragraph.   Rather than face a few additional weeks of delay in receiving full pay (a risk every assigned lawyer across the nation faces), the boycotters have disrupted the courts, ignored their ethical duties, and flouted antitrust law.  They should explain that to their children.

P.S.   The Boston Herald, also covered the boycott today, with an article headlined “Public defense lawyers strike”  (Aug. 19, 2003, by David Weber).   The Herald states that “The tactic seemed to work,” but noted

“The budget bill, however, does not include a rate hike for the lawyers, which they have been seeking for years. Private attorneys can get from $125 per hour to $600 per hour for a criminal case.”

In addition, the Herald‘s opinion page displayed a well-phrased editorial captioned “A Double Standard on Fees and Bills,” which begins with the sentence, “Ah, here’s to the power of a well-timer hissy-fit,” and which goes on to decry the unfairly low fees received by assigned counsel, and notes:

By contrast when the state Department of Housing and Community Development goes out and hires outside private counsel, such as Palmer & Dodge, it pays from $267 to $437 an hour, according to a recent article in Massachusetts Lawyers Weekly.


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