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September 1, 2003

Bristol County to Boston via Cyberspace — “Bar Advocate” Website Reveals an Antitrust and Ethical Tightrope Act

Filed under: pre-06-2006 — David Giacalone @ 10:16 pm

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.

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