Fresh from their victorious group boycott for backpay, court-appointed lawyers for indigent defendants in Massachusetts are using the Bristol County Bar Advocates’ website as an important informational and organizing tool in their continuing battle for better compensation and contract terms with the State. Cyber technology permits the “bar advocates” to coordinate further crusades, despite their dispersal in solo and small practices across the state. However, by utilizing the internet, they have also allowed outsiders the opportunity to observe the process.
What I have seen over the past month, is a group of angry, frustrated and determined lawyers, who are choosing to walk an antitrust and ethical tightrope to the State Capital, when more appropriate means are available.
- The bar advocates have signalled their willingness to take joint action again, if additional fee-related demands are not met (see our Aug. 23rd posting). As argued at length by this Editor in prior postings, such concerted action constitutes both an antitrust violation (as a coercive group refusal to deal) and ethical misconduct (as, among other things, action prejudicial to the judicial process).
The BCPCS website demonstrates an attempt to “lawyer away” or wish away serious legal problems. Because the assigned counsel are individual providers of a service, in competition with each other, they cannot strike or engage in other joint refusals to deal in order to impose their demands a buyer — here, the State. They admit this, but continue to act as if they can organize and motivate their fellow attorneys into taking just such action, while designating their decisions and actions to be individual and unilateral. Organized unilateral conduct sounds oxymoronic, because it is.
Simply saying you’re not coordinating and that there are no leaders doesn’t make it so. Antitrust laws, prosecutors and courts are not so simplistic (nor gullible) when determining whether an “agreement” or “combination” in restraint of trade exists.[*]
- The tension between appearing to act unilaterally while organizing unified action can be seen on the site’s FAQs page, and on their newly-created Listserve, which describes its users as attorneys “organizing to be paid in a timely fashion by the state and to increase the hourly salaries.”
Likewise, the law grants the State immunity from antitrust liability, even though it is a large-scale purchaser, and despite the fact that it might not be following its own laws. [**] But, the bar advocates act as if it is they with antitrust immunity. They provide links to a large amount of materials supporting better pay, as if good equities amounts to justification for the use of unlawful means.
- Their fairness arguments and comparisons with assigned counsel in other states fail as an antitrust defense, but could be the foundation for building a strong, lawful, ethical and successful lobbying effort.
Similarly, the bar advocates simply assert that their boycotts are unlikely to injure clients and that judges are “sympathetic” to their cause. They do not explain why bringing courts to a chaotic standstill to achieve their fee demands should be overlooked by Bar Counsel. Indeed, they never raise the possibility that their actions might be unethical (except indirectly, by linking to ethicalEsq? postings).
The bar advocates seem to want the perks of being in the private practice of law without accepting the responsibilities. They want the perks of being a civil servant, without actually being State employees.
Finally, in addition to claiming to be acting unilaterally, the bar advocates congratulate themselves throughout the website on their willingness to “take a stand” despite the risks and costs. Nevertheless, in An Open Letter to the ‘Fill in’ Bar Advocate (posted 08-03-03, during the boycott), the unnamed, non-leaders explain that (emphasis added):
“Many attorneys have evaluated the compensation and timing of that compensation, and concluded that they . . . will ultimately be assigned clients who are now being “deferred”, and thus they see little downside in not accepting cases.
“In some courts, a handful of bar advocates are ‘filling in’ for days that were cancelled by their fellow bar advocates. . . . When a bar advocate refuses to accept new cases, in order to force the Commonwealth to deal with the serious issues and mistreatment of bar advocates as a group, filling in is not a favor, but rather blunts the effectiveness of that attorney’s ‘statement’, and the sacrifice of the cancelling duty attorney.
“Accepting a ‘fill in’ duty day to replace a member who refuses to accept assignments is not doing your fellow bar advocate any favor, in fact it often offends that bar advocate. There has been no “strike” vote, and in fact bar advocates are not allowed to organize. In courts where a substantial majority of the attorneys have reached a like mind, and are not accepting cases, the existence of a handful of ‘fill in’ advocates would seem to prolong bringing the matter to a prompt conclusion, and may be seen by your fellow bar advocates as profiting personally while damaging the effectiveness of a fellow bar advocate.”
This letter is clearly meant to discourage lawyers who do not agree with the group boycott from doing what they believe is their duty toward the court and defendants. Along with angry, derogatory remarks made at court and to the news media, such “policing” of the boycott agreement is a form of coercion that is unacceptable from legal professionals.
I’ll be checking back at the Bristol County Bar Advocates’ Website frequently, to see what tactics are being employed to gain their assigned counsel demands. They are facing both an Administration indifferent to their plight (and probably willing to take punitive action against them), and a public wary about additional government expenditures and taxes (and perhaps less than fully sympathetic to criminal defendants and their lawyers). They need to find a way to pursue their legitimate goals without violating their ethical obligations or the antitrust laws.***
The Bar Advocates should continue their efforts to draft improved legislation and seek sponsors. But lobbying in public while building the infrastructure for the next boycott is not acceptable conduct. Achieving their longterm goals, with lasting results, will surely come from persuasion, not coercion or collusion.
They need to create strong judicial, legislative and executive branch support for their fee demands, while reaching out to other advocate groups, and earning the public’s respect and trust.
- A recent Advisory Opinion (Feb. 6, 2003) from the Staff of the FTC’s Bureau of Competition to a group of Dayton, Ohio, physicians analyzes many of the issues that are raised when a group of professionals that are in competition in the provision of services get together to educate and lobby for increased compensation. Their situation has many similarities to the efforts of the Massachusetts assigned counsel, including claims that the buyers have market power, that their compensation is unfairly low compared to similarly situated providers in other locations, and that the low fees ultimately hurt their patients. I recommend it to anyone trying to understand the antitrust issues presented. A number of the most relevant excerpts can be found by scrolling down to the third footnote on this page.
- The Massachusetts Bar Association should actively use its lobbying clout to help achieve higher assigned counsel fees. As we have noted, similar efforts by the New York State Bar Association, were successful earlier this year.
- Update (June 14, 2004): FTC files price fixing charges against Clark County, Wash., indigent defense lawyers for their joint refusal to deal. Consent agreement signed.
- Update (Aug. 1, 2004 With a $7.50/hr raise will Mass. lawyers continue their illegal group boycott? (articles in Boston Globe, New Bedford Standard-Times, Aug. 1) See TalkLeft discussion.
- Update (July 23, 2005): More boycotting. See Does Bar Advocate Equal Greedy Lawyer?
ethicalEsq?ethicalEsq?ethicalEsq?
Thanks to Bob Ambrogi for pointing his fans to this posting (009-03-03), and welcome to his LawSites readers.
David, I disagree.
Not all attorneys who receive state appointments are “Bar Advocates”. Most of us have NO contract, and have never promised anyone to take a minimum number of cases. In fact, there is a limitation as to hours and cases, if anything.
In addition, appointments are often for children and parents under attack by the full might of the state, in a situation where the state agency involved has almost NO oversite, all actions taken are secret, and the state agents display gender bias, class bias, and horrendous ethnic bias, routinely.
Further, these family law cases may (and almost always do) last an average of three or more years; sometimes when I represent a child after a disrupted adoption, my involvement is for 8-10 years or longer.
Picture this – the state terminates parental rights. The child wants to live with the parent (who is merely struggling with homelessness and poverty, more often then not and receives no help at all from the state…just “referrals” and derogatory treatment) and disrupts any attempt to adopt them out…becoming a legal orphan. I have several of these children at this point, in my practice. For some of them, the state is all they have (I spare you the details) and I am the only watch dog they have.
How much do you know about this area of law? I am talking G.L. c210, G.L. c.119?
Please advise!
Who says I cannot legally form a bar association of like-minded attorneys to work to better the law, better working conditions, educate the public, and educate the legislature????
Again: Deborah Sirotkin Butler, Esq., AmberPaw@aol.com
Comment by Deborah Sirotkin Butler, Esq. — September 3, 2003 @ 11:48 am
David, I disagree.
Not all attorneys who receive state appointments are “Bar Advocates”. Most of us have NO contract, and have never promised anyone to take a minimum number of cases. In fact, there is a limitation as to hours and cases, if anything.
In addition, appointments are often for children and parents under attack by the full might of the state, in a situation where the state agency involved has almost NO oversite, all actions taken are secret, and the state agents display gender bias, class bias, and horrendous ethnic bias, routinely.
Further, these family law cases may (and almost always do) last an average of three or more years; sometimes when I represent a child after a disrupted adoption, my involvement is for 8-10 years or longer.
Picture this – the state terminates parental rights. The child wants to live with the parent (who is merely struggling with homelessness and poverty, more often then not and receives no help at all from the state…just “referrals” and derogatory treatment) and disrupts any attempt to adopt them out…becoming a legal orphan. I have several of these children at this point, in my practice. For some of them, the state is all they have (I spare you the details) and I am the only watch dog they have.
How much do you know about this area of law? I am talking G.L. c210, G.L. c.119?
Please advise!
Who says I cannot legally form a bar association of like-minded attorneys to work to better the law, better working conditions, educate the public, and educate the legislature????
Again: Deborah Sirotkin Butler, Esq., AmberPaw@aol.com
Comment by Deborah Sirotkin Butler, Esq. — September 3, 2003 @ 11:48 am
Hello, again, Deborah. Thanks for the info about assigned counsel panelists. I’m not sure what you want to know about my knowledge of abuse and neglect cases. While I was practicing, I served as assigned counsel (Law Guardian) for perhaps 200 children in abuse and neglect cases (including termination of parental rights cases); I often had to research NY law on the subject during the year when I ran the Law Guardian Backup Center; and I wrote drafts of a couple of opinions in such cases during my short stint as a Family Court law clerk. In addition, prior to exclusively working as a Law Guardian, I represented a handful of indigent adults who were respondents in abuse or neglect cases. As I stopped practicing 6 years ago, I may be a bit rusty on the substantive law.
Your second question is a good one. The basic answer is that you MAY “form a bar association of like-minded attorneys to work to better the law, better working conditions, educate the public, and educate the legislature,” so long as you limit your activities to lawful behavior. That’s where it gets tricky. Because the association is a group of competitors, it needs to be careful in the way it operates, since its actions are almost be definition “concerted” for antitrust purposes. Concerted education of the public is fine, concerted coercion of the “buyer” of your services is not.
Because its members recently engaged in a joint refusal to deal, your bar association perhaps needs to be especially careful. It may not become a means to coordinate or otherwise facilitate boycotts or threats of boycotts by its members in order to pressure the government to meet the demands of its members. Some of the issues are covered in the footnotes to this posting.
Trade association antitrust law is quite complex and you might want to get some legal advice by antitrust experts. One place to look for some general guidance is The Association Antitrust Update, which is put together by a Detroit law firm and has case summaries, articles and more. In addition, I would suggest reading a recent Advisory Opinion (Feb. 6, 2003) from the FTC Staff to PriMed Physicians, a group of Dayton, Ohio, physicians. Their situation appears to raise many of the same issues that would be raised by the operation of your bar association:
The FTC Staff Advisory Opinion gives a very useful analysis of issues analogous to those assigned counsel would face in joint educational and lobbying efforts. Three excerpts are worth emphasizing here:
As we have discussed before, I want assigned counsel fees to increase in Massachusetts. But, I also want the lawyers to achieve their goals in a lawful and ethical way. Given the recent boycott and the threats of future joint action, it is a tightrope.
Comment by David Giacalone — September 3, 2003 @ 3:19 pm
Hello, again, Deborah. Thanks for the info about assigned counsel panelists. I’m not sure what you want to know about my knowledge of abuse and neglect cases. While I was practicing, I served as assigned counsel (Law Guardian) for perhaps 200 children in abuse and neglect cases (including termination of parental rights cases); I often had to research NY law on the subject during the year when I ran the Law Guardian Backup Center; and I wrote drafts of a couple of opinions in such cases during my short stint as a Family Court law clerk. In addition, prior to exclusively working as a Law Guardian, I represented a handful of indigent adults who were respondents in abuse or neglect cases. As I stopped practicing 6 years ago, I may be a bit rusty on the substantive law.
Your second question is a good one. The basic answer is that you MAY “form a bar association of like-minded attorneys to work to better the law, better working conditions, educate the public, and educate the legislature,” so long as you limit your activities to lawful behavior. That’s where it gets tricky. Because the association is a group of competitors, it needs to be careful in the way it operates, since its actions are almost be definition “concerted” for antitrust purposes. Concerted education of the public is fine, concerted coercion of the “buyer” of your services is not.
Because its members recently engaged in a joint refusal to deal, your bar association perhaps needs to be especially careful. It may not become a means to coordinate or otherwise facilitate boycotts or threats of boycotts by its members in order to pressure the government to meet the demands of its members. Some of the issues are covered in the footnotes to this posting.
Trade association antitrust law is quite complex and you might want to get some legal advice by antitrust experts. One place to look for some general guidance is The Association Antitrust Update, which is put together by a Detroit law firm and has case summaries, articles and more. In addition, I would suggest reading a recent Advisory Opinion (Feb. 6, 2003) from the FTC Staff to PriMed Physicians, a group of Dayton, Ohio, physicians. Their situation appears to raise many of the same issues that would be raised by the operation of your bar association:
The FTC Staff Advisory Opinion gives a very useful analysis of issues analogous to those assigned counsel would face in joint educational and lobbying efforts. Three excerpts are worth emphasizing here:
As we have discussed before, I want assigned counsel fees to increase in Massachusetts. But, I also want the lawyers to achieve their goals in a lawful and ethical way. Given the recent boycott and the threats of future joint action, it is a tightrope.
Comment by David Giacalone — September 3, 2003 @ 3:19 pm
Better late than never? I’m a Massachusetts bar adovcate who just came across your website, and this posting, which — I must admit — infuriated me! :)
I admit that I know practically nothing about antitrust law. However, answer me this: I’m an attorney who often accepts Massachusetts court appointments to represent indigent criminal defendants on appeal. Increasingly, the ridiculously low rates paid by Massachusetts are interfering with my ability to support my practice. (It’s not that I want the “perks” of private practice without the “responsiblities,” as you suggest: it’s that I want to (1) shoulder my responsibilities to my indigent clients, while (2) staying AFLOAT financially. (I don’t have any fabulously wealthy private clients to subsidize my bar-advocate work; none of my clients is well-off.) I have no contract with the Commonwealth of Massachusetts: I simply take cases on a regular basis. Am I obligated, as a matter of antitrust law, to continue taking cases despite the paltry rates? Or, alternatively, am I obligated _not_ to refuse cases simultaneously with other underpaid bar advocates? Or only not to refuse cases in concert with other bar advocates?
I guess my point is that the Commonwealth is pulling the rug out from under my practice; I can no longer afford to do this work (meaning, take new cases: as an ethical matter I am, of course, continuing to represent my current clients zealously). To say that my individual behavior in refusing new cases violates antitrust law seems unfair ….
I’d also note that to date, the only action that’s been effective in obtaining payment from MA was the one-day Suffolk County “boyctt” (= “refusal of new cases”) last year, when the Commonwealth supposedly ran out of money to pay us for work _already_ _performed_ (I say “supposedly,” b/c a supplemental appropriations bill was passed within 24 hrs). As a practical matter, refusing new cases would seem to be the only way to achieve a change in reimbursement policies. (I realize that this does not directly contradict your position: perhaps your view is that even if there is _no_ _way_, other than refusing cases, to effect change, attorneys are ethically bound (&/or constrained by antitrust law) to accept that fact & refrain from refusing cases).
Thanks for reading,
Anne
Comment by Anne Gowen — February 18, 2004 @ 6:44 pm
Better late than never? I’m a Massachusetts bar adovcate who just came across your website, and this posting, which — I must admit — infuriated me! :)
I admit that I know practically nothing about antitrust law. However, answer me this: I’m an attorney who often accepts Massachusetts court appointments to represent indigent criminal defendants on appeal. Increasingly, the ridiculously low rates paid by Massachusetts are interfering with my ability to support my practice. (It’s not that I want the “perks” of private practice without the “responsiblities,” as you suggest: it’s that I want to (1) shoulder my responsibilities to my indigent clients, while (2) staying AFLOAT financially. (I don’t have any fabulously wealthy private clients to subsidize my bar-advocate work; none of my clients is well-off.) I have no contract with the Commonwealth of Massachusetts: I simply take cases on a regular basis. Am I obligated, as a matter of antitrust law, to continue taking cases despite the paltry rates? Or, alternatively, am I obligated _not_ to refuse cases simultaneously with other underpaid bar advocates? Or only not to refuse cases in concert with other bar advocates?
I guess my point is that the Commonwealth is pulling the rug out from under my practice; I can no longer afford to do this work (meaning, take new cases: as an ethical matter I am, of course, continuing to represent my current clients zealously). To say that my individual behavior in refusing new cases violates antitrust law seems unfair ….
I’d also note that to date, the only action that’s been effective in obtaining payment from MA was the one-day Suffolk County “boyctt” (= “refusal of new cases”) last year, when the Commonwealth supposedly ran out of money to pay us for work _already_ _performed_ (I say “supposedly,” b/c a supplemental appropriations bill was passed within 24 hrs). As a practical matter, refusing new cases would seem to be the only way to achieve a change in reimbursement policies. (I realize that this does not directly contradict your position: perhaps your view is that even if there is _no_ _way_, other than refusing cases, to effect change, attorneys are ethically bound (&/or constrained by antitrust law) to accept that fact & refrain from refusing cases).
Thanks for reading,
Anne
Comment by Anne Gowen — February 18, 2004 @ 6:44 pm
Thanks for writing, Anne. Late is definitely better than never. You may, acting individually, choose not to take more assigned counsel cases. What you may not do under the antitrust laws is act in concert with other sellers of legal services to put pressure on the buyer of your services to change its practices, prices, etc. You are not allowed to try to or actually coordinate the refusal to deal with other lawyers in order to increase the power of your “message” (coercion).
If you take a look at some of my prior postings about the Mass. assigned counsel, you’ll get more of a flavor for the issue, and (I hope) see that I am sympathetic to your cause, but not with the use of unlawful tactics. [As you may know, I am now in early retirement due to health problems, but I worked exclusively as assigned counsel (as Law Guardian for children) for the last 5 or so years of my law practice — at a time when we were paid $25 per hour for out of court work and $40 for in court. Doing so plunged me out of the middle class, but it was my choice and I accepted the consequences.]
Comment by David Giacalone — February 18, 2004 @ 7:58 pm
Thanks for writing, Anne. Late is definitely better than never. You may, acting individually, choose not to take more assigned counsel cases. What you may not do under the antitrust laws is act in concert with other sellers of legal services to put pressure on the buyer of your services to change its practices, prices, etc. You are not allowed to try to or actually coordinate the refusal to deal with other lawyers in order to increase the power of your “message” (coercion).
If you take a look at some of my prior postings about the Mass. assigned counsel, you’ll get more of a flavor for the issue, and (I hope) see that I am sympathetic to your cause, but not with the use of unlawful tactics. [As you may know, I am now in early retirement due to health problems, but I worked exclusively as assigned counsel (as Law Guardian for children) for the last 5 or so years of my law practice — at a time when we were paid $25 per hour for out of court work and $40 for in court. Doing so plunged me out of the middle class, but it was my choice and I accepted the consequences.]
Comment by David Giacalone — February 18, 2004 @ 7:58 pm
David: I’ve now caught up on your (many & thoughtful) prior postings on the subject & am regretting my ill-informed, prickly response. It’s quite possible that my view reduces to the position that one set of values (those which we CJA attorneys claim to espouse — cynically, according to some of your posts) trumps another (those which antitrust law protects), such that illegal, antitrust-violating conduct is morally justified. Will have to think much more about this, however, before reaching an intelligent conclusion.
Thanks for the great discussion,
Anne
Comment by Anne Gowen — February 18, 2004 @ 11:47 pm
David: I’ve now caught up on your (many & thoughtful) prior postings on the subject & am regretting my ill-informed, prickly response. It’s quite possible that my view reduces to the position that one set of values (those which we CJA attorneys claim to espouse — cynically, according to some of your posts) trumps another (those which antitrust law protects), such that illegal, antitrust-violating conduct is morally justified. Will have to think much more about this, however, before reaching an intelligent conclusion.
Thanks for the great discussion,
Anne
Comment by Anne Gowen — February 18, 2004 @ 11:47 pm
& — this should not have been an afterthought — sorry to hear of your health problems. Hope you’re doing reasonably well,
Anne
Comment by Anne Gowen — February 18, 2004 @ 11:48 pm
& — this should not have been an afterthought — sorry to hear of your health problems. Hope you’re doing reasonably well,
Anne
Comment by Anne Gowen — February 18, 2004 @ 11:48 pm