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August 23, 2003

Update: Governor and Boycotting Lawyers Trade Warnings

Filed under: pre-06-2006 — David Giacalone @ 6:16 pm


update: the saga continues: does Bar Advocate = Greedy Lawyer? (July 23, 2005)


The Boston Globe reported yesterday that Massachusetts Governor Mitt Romney had approved a bill allowing back payments owed to lawyers for the poor, but “cautioned the attorneys against launching another protest like the one that disrupted some Suffolk County courts earlier this week.”   The Globe article (With a warning, governor approves $15.4m for lawyers, by Kathleen Burge, Aug. 22, 2003) stated:

If further disruption occurs, Romney would support ”taking disciplinary steps against these attorneys,” said Shawn Feddeman, Romney’s spokeswoman. ”It’s a constitutional right for indigent defendants to have this counsel.”

In response, one co-chair of the boycott-leading Suffolk Lawyers for Justice, asserted ”That right, in my opinion, encompasses the right to competent and zealous representation and lawyers who are paid fairly for their services.”   Meanwhile, the other co-chair warned of future joint action:

”This is a victory,” said John Salsberg, cochairman of Suffolk Lawyers for Justice. ”It may appear to be a small victory, but I think it may have much bigger ramifications in the future. . . . Lawyers who represent poor people are willing to get together and take a stand.”

As had the Taunton Gazette on Aug. 21 (after interviewing local members of the boycott who discussed the likelihood of a strike in the Spring), the weekly Boston Phoenix indicates that similar group action is anticipated:  “Expect another showdown this time next year, with tempers likely getting even hotter — unless the state gets serious about a long-term solution.”  (Aug. 22-28, 2003 edition, A short strike yields a short-term fix, by David S. Bernstein)


In an update to our Aug. 20th posting, ethicalEsq? did some warning of its own:

It’s always easier to use coercive tactics the second time — especially if they were successful.  Even without being verbalized, the threat of a repeat hangs over the head of the target.  Without firm disciplinary action against them for their group refusal to take new cases, the bar advocates of Massachusetts will become chronic bullies.

As indepenent service providers, and not employees, each defense counsel has the absolute right to decide on his or her own whether to continue taking cases as assigned counsel for the indigent.  But, they have no legal or ethical right to jointly refuse to take cases (or threaten to stop) in order to pressure the State for higher or quicker pay.  Fair ends do not justify unfair means.  


SUPPLEMENT (08-23-03):  I just had a Comment from an anonymous Massachusetts lawyer, concerning my Aug. 17 posting entitled “Why the Boston “Bar Advocate” Boycott is Unlawful.”   It underscores my concern that assigned counsel will be using the threat of another group boycott to achieve their fee goals.  Below is the Comment and my Response:


Anonymous MassAtty:  What rubbish . . . Who needs to strike? Let’s see what Romney, Locke AND CPCS does when July 1, 2004 comes around and 2500 “Bar Advocates” don’t appear because they have opted-out or otherwise refused to sign contracts with their respective County Advocate Programs. How long will it take the Governor and CPCS to burn out the “pro-bonos” and other hot-shots who step into the breach? Hmm… now there’s an interesting “ethical” concern. Just how many cases does one take, involuntarily or otherwise, before one stumbles into malpractice? Will the appointing Judge indemnify the inexperienced or “drafted” lawyer who gets hammered by a civil jury? That’s what happened to Worcester Lawyer Edward Healy back in 1985 after he unwittingly tried to help out the presiding justice William Luby in a case involving an arraignment and mental health evaluation on a fellow named Ronald Wagenmann. Seems Luby needed counsel to stand-in, nobody was around, Healy said O.K.,and oops! I Guess it wasn’t sufficient enough representation for Wagenmann and a federal jury in Springfield that awarded Wagenmann 1.7 miilion in damages, $500K of which was against Healy.

Editor:   Dear Anonymous MassAtty,   “Rubbish” is a nice, pithy legal argument, but not particularly persuasive.  Wishing away the antitrust laws won’t make them go away.  Same thing for your ethical responsibilities to the judicial system and to clients.   

As in many other states, Massachusetts assigned counsel have been complaining about low fees for years and yet still taking the assignments.   As individuals, you have the absolute right to get off the panel or refuse new cases.  But, the vast majority continue to take them, whether out of magnanimity or financial need, I cannot say.   That’s how the marketplace works — you each decide if the terms offered are adequate for you to sell your services to the buyer.  No matter what is said about the current rate being below market rates, so far, it appears that the State’s proffered price IS adequate to attract the necessary providers.  Bar advocates can lobby for a fairer fee level and quicker payments, but they may not use a group boycott to pressure the State, in order to alter market forces.  Most members of the bar can be expected to understand the difference and to act accordingly.

Predicting calamities that are caused by your own joint, coercive action is neither ethically responsible nor helpful to your cause.   It is, however, a good way to get attention from federal and state antitrust authorities — and, hopefully, from your Bar Counsel.   I continue to hope that the State raises your fees, but I hope it can happen without further harm to the rule of law and the public’s respect for lawyers.

SUPPLEMENT #2 (08-23-03):  Bill Day asks the important question whether it matters that the State has so much power as a buyer of services.    The short answer is “no,” but follow this thread, or click on the Comment link, for an explanation, including quotes from the Supreme Court’s decision in the SCTLA (the D.C. assigned counsel case from 1990), which is covered in depth in this post.   It is clear that competitors may not use a group boycott against a buyer of their services to increase fees.  And, note that as large of a buyer as Massachusetts may be, it is far from a monopsonist in the State, when it comes to the entire market for legal services.

Update (Aug. 26, 2003)Thomas Workman, Taunton, MA, attorney, and webmaster of the Bristol County Bar Advocates’ website, Thomas Workman has a letter to the editor in the Boston Globe (8-26-03) on the Poor Pay for Court-Appointed Lawyers, in which he points out that the defense lawyer is the lowest-paid person in the room for the time while waiting to be heard in court.  Tom asks why police and court clerks can unioinize and bargain for wages, but assigned counsel cannot.  He correctly answers:

“Because of the relationship that has been structured between the state and court-appointed attorneys, the lawyers are considered independent professional contractors.  Under antitrust laws, contractors cannot organize or join a union.”

Tom opines that the State has structured the system that way to keep the attorney fees low.    The State is surely offering no more than it believes is necessary to obtain the desired amount of services.  But, I doubt that there are many lawyers on the assigned counsel panel who would give up there private law practices in order to become fulltime employees of the State, working as public defenders.  They can’t have it both ways.   If they want to be in private practice, they have the responsibility to obey the antitrust laws.

In a separate email to your Editor, Tom Workman also writes:

 You and I are philosophically in extreme disagreement on the issue of the application of antitrust law.  Some of the precedents upon which you rely are ripe for overturning, and clearly (in my mind) do not serve the purpose and intent of the antitrust (anti-monopoly) laws.  In the area of criminal defense services, the state of Massachusetts is the classical monomolist, with 90% of the market, no greater bully has ever existed than the state.

There is nothing extreme about the antitrust precedent that I cite.  It is good antitrust law and is sure to remain so.  The bar advocates just don’t want it applied to themselves.   The target’s market share is not relevant when competitors use a naked boycott.   However, as the Supreme Court noted in SCTLA, it does not seem likely that there is a market for “criminal defense services” that is separate from other lawyer services.  The bar advocates prove that when they say they will start doing other legal work if their demands are not met.

The fact that the Government may be a big buyer or seller of services does not allow competitors to use a group boycott against it to achieve better prices, or any other better terms (such as credit).   For example, businesses could not jointly agree to boycott the U.S. Postal Service in order to lower some or all of its rates.   Nor could food caterers in and around a small town with a large prison agree to boycott the prison until it offers to pay more for their catering services.   Each independent businessman must decide for himself or herself whether to accept the Government’s proffered price.   If bar advocates believe they have strong public support, they should mount a lawful publicity and lobbying campaign.

  • Tom Workman and I have very different conclusions about the propriety of the boycott by Bar Advocates.   However, I much appreciate his willingness to make and share his reasoned opinions with me.  You can find more of our dialogue by using links on the ethicalEsq? “Discussion” Page.

An Article for That Special Lawyer (You?)

Filed under: pre-06-2006 — David Giacalone @ 4:43 pm

A lot of law office staffers would love to send this month’s LexisOne ShrinkRap column to a “special” lawyer they know.  Entitled Avoiding Incivility in Litigation, it’s written by Joni Johnston, Psy.D. (August 2003).   (via the ABA Litigation Section homepage)

Dr. Johnson notes that “Given a choice, most of us clearly would choose to do good.”   However she asks:

So why don’t we? We often feel like the system stacks the odds against us. We can point the finger in a lot of different directions, the culture of law firms, the adversarial nature of our judicial system, the rewards of playing hardball, or the inflated expectations of clients. The incentives to act combatively, selfishly, or inefficiently can be compelling. Yet the results can be disastrous. Deals blow up. Cases don’t settle. Expenses escalate. Reputations suffer. Court dockets jam up. Commitments fall apart. Justice is delayed. And relationships are damaged.

The article describes some of the sources of lawyer stress and incivility, and offers some good tips on dealing with stress.  Along the way, we read about lawyers who engage in “just” behavior — just becoming monsters when a trial is going on or a critical transaction is at stake.  Dr. Johnson asserts (correctly) that “We can be civil when we’re aggressive, upset, angry and intimidating; we just don’t have to be rude. She concludes with the reminder:

The practice of law has been described as hockey while wearing suits. If it is, we can take heart from the best hockey players. They, like the best lawyers, treat other players fairly and with civility. And they win without resorting to cheap shots.

Yep, a lot of staffers would love to send this article to a lawyer they know.   But, it’s hard for them to do it without jeopardizing their careers.   So, why don’t we attorneys email it to ourselves, give it a lot of thought, and let our staff know we’ve read it and plan to put it into action.  Today (well, on Monday).  That would be special. 


No Need for Unbundlephobia

Filed under: pre-06-2006 — David Giacalone @ 10:52 am

MyShingle’s Carolyn Elephant is asking “Will Unbundling Lead to a Bundle of Malpractice?”  (Aug. 22, 2003).  Carolyn points to an article from the August 2003 ABA Journal, entitled Loosening Ties – Unbundling Legal Services.
With “unbundling,” the lawyer and client agree that the lawyer will only perform specific, discrete tasks.   While applauding the ability of unbundling to expand access to legal services, Carolyn is concerned over the ethical and malpractice ramifications of unbundling.   For example, she asks Carolyn asks how far an attorney can go in a limited representation agreement, wondering whether, “For instance, under the existing standards of professional responsibility, could an attorney agree to appear for a client in court but have the client handle the case investigation and discovery?”
Carolyn also cautions that “so long as the prospect of malpractice and bar complaints remain a threat, solo and small firm attorneys must proceed cautiously in entering into unbundled arrangements.  She is certainly correct that (emphasis added):
[A]ttorneys should never agree to “unbundled” service on a “handshake.” Unbundled services is one arrangement that demands a clear retainer agreement laying out the scope of the attorney’s representation – otherwise an attorney who chooses to act as a “nice guy” and “look over a contract” or dispense some advice is destined to finish last.
Luckily, for attorneys who sincerely want to offer  or consider unbundled services (as opposed to those who are looking for excuses to refuse such clients and stifle the growing movement), there are some good Sample Unbundling Retainer Agreements readily available online at the Unbundled Law Services website, which advises that  “An essential part of an ‘unbundled’ legal services practice is a clear, detailed list (signed by the attorney + the client) which specifies which services the attorney will provide (and those s/he will not provide).”   Included are links, for example, to:
  • a Retainer Agreement that is part of Maine Bar Rule 3.4(i)
  • Model Composite Form – drafted by the University of Maryland School of Law Professor, Michael Millemann
  • a sample retainer agreement that has been used in California family court matters
As far as ethical issues are concerned, it is clear that a trend exists to clarify the attorney’s (already existing) right to enter into discrete-task relationships with willing and well-informed clients.  For example:
1) the new ABA Model Rule 1.2(c) states that “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” and the related Comment on Agreements Limiting Scope of Representation explains (emphases added):

[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. . . . A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

[7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.

2) The Comment to Model Rule 1.1 (Competence) notes, regarding Thoroughness and Preparation, that  “[5] . . . An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).
3) The Comment to Model Rule 1.8 on Limiting Liability and Settling Malpractice Claims clarifies that “[14] . . . . This paragraph does not, however, . . . prohibit an agreement in accordance with Rule 1.2 that defines the scope of the representation, although a definition of scope that makes the obligations of representation illusory will amount to an attempt to limit liability.
Your editor believes that the main barrier to unbundling over the centuries has been the profession’s desire to protect its financial position (and to craft ethical restrictions to support those interests), rather than valid issues of professional responsibility and client protection.   Lawyers have dismissively said “We can’t do that,” as opposed to “Here’s what you need to consider before you and I consent to limiting my role.”  Because performing discrete tasks for clients is still rather new, there are likely to be issues to be worked out relating to ethical responsibilities and malpractice exposure.   But, none of these problems are insurmountable.   Solo and small firm practitioners can and should be working to draft appropriate rules and sample forms that will assure a healthy environment for the growth of unbundling.
Before leaving this topic, howerver, I must disagree with one implication in the Aug. 22nd MyShingle posting.  Carolyn states (emphasis added):
First, attorneys must try to discern whether clients seek unbundled services because they lack resources for full service or are freeloaderto complain to the bar (if not file a malpractice suit) if the lawyer does not live up to expectations.

Many Americans who can “afford” full service legal representation nonetheless want to uses who seek free advice and are simply too cheap to hire a lawyer. The freeloading clients will probably expect much more assistance in an unbundled arrangement than a lawyer is willing to provide – and are likely the unbundling option.
Many Americans who can “afford” full service legal representation nonetheless want to use the unbundling option.  They not only do so in good faith, but they have the absolute right to seek and receive such limited engagements with their lawyers, no matter how wealthy they may or may not be.  Lawyers are agents and fiduciaries, whose job is to serve the client’s wishes, unless to do so puts the client at unacceptable risk.  Lawyers are not licensed leeches, permitted to suck as much blood from their clients as is available.   Clients are not freeloaders if they say either “I want to participate as much as possible,” or “I want to leave a little money for me.”
  • Thanks (Aug 22, 2003) to Jerry Lawson at eLawyer Blog for quoting from and pointing his visitors to our posting Pro Bono is Not the Answer to the Access Problem.

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