f/k/a archives . . . real opinions & real haiku

September 3, 2003

Update: Rate Calculator Added to Bristol County Lawyers’ Website

Filed under: pre-06-2006 — David Giacalone @ 11:34 pm

An hourly Rate Calculator has been added to the website of the Bristol County Bar Advocates (which was featured in our posting of Sept. 1, 2003). 


The introduction page for the Rate Calculator notes that:

The CPCS hourly rate calculator is based on the assumption that a bar advocate, working both for indigent clients at a government rate and for private clients at a market rate, should be able to enjoy a lifestyle that is on parity with a prosecutor or an assistant attorney general. Wages for prosecutors and AGs are lower than other attorneys who work for the Commonwealth — this is not addressed by the calculator.


The CPCS hourly rate calculator can compute the hourly rate needed to provide parity with the starting salary of a beginning assistant district attorney, in take home pay. The calculator asks for the starting salary of an assistant District Attorney, and the uplift to cover benefits (social security contribution, medical benefits, etc.). (emphasis in original)

The Rate Calculator yields a “parity” hourly rate of $67.48 (as compared to the $30 to $39 currently paid by Massachusetts for assigned counsel criminal defense work).


In my earlier posting, I argued that the Bristol County website showed a group of attorneys walking an antitrust tightrope.   Adding this Rate Calculator seems to increase their risk considerably.   To see why, I suggest reading the Advisory Opinion Letter from the Staff of the FTC’s Bureau of Competition, to PriMed Physicians in Dayton, Ohio.  (Letter from Jeffrey W. Brennan to Gregory G. Binford, Benesch Friedlander Coplan & Aronoff LLP, dated February 6, 2003)


The proposal by PriMed Physicians group practice involved creating with other Dayton-area physicians an advocacy group to undertake “a campaign to inform and educate the general public” about, in the physicians’ opinion, the “ill effects and other consequences of the policies and procedures, including depressed reimbursement, by third party payers in Dayton.”


The following excerpts from the PriMed Advisory Opinion are particularly germane when a group of competiting professionals, who have recently engaged in a group refusal to deal, start posting “parity” fee calculations (emphasis added):

“The Commission evaluates competitor exchanges of price and other competitively sensitive information to determine whether they have, or are likely to have, an anticompetitive effect that outweighs any procompetitive justification. In the context of this advisory opinion, the fundamental question is whether the information exchange is intended or likely to result in physicians concertedly or interdependently modifying their pricing or contracting behavior relative to health plans.

“Injury to competition and consumers would result if the proposed exchange of information facilitated an agreement among Dayton area physicians on prices to demand of health plans or an agreement to refuse to deal with health plans except on agreed terms. Comparison of payments in Dayton to insurer payments to physicians in other cities, moreover, could facilitate an agreement among Dayton physicians to use those payment levels as a starting point for negotiations with health plans for higher compensation, and to refuse to deal with plans that offer payment terms below those yardsticks. Publication of data indicating how many or what percentage of physicians receive different, specified prices for particular services, or publication of data showing how prices paid by identified payers differ, could facilitate coordinated efforts to reduce or eliminate price differences as a way of increasing average price levels.

Because your group’s major premise is that insurer payments to Dayton physicians are unreasonably low, there is ground for concern that Dayton physicians might interpret the group’s actions as a call for collective action of this sort. Such agreements would not have to be express to violate the antitrust laws. Further, they would be unlawful per se, absent efficiency-enhancing integration among the physicians that is sufficient to justify their joint pricing or contracting with health plans. Because the proposed conduct does not involve integration, any agreement of this type would be legally unjustified.”

Given the lawyers’ recent history of joint action, and their website’s overall purposes — organizing assigned counsel to achieve higher fee levels from the State and sharing information about the actions taken by assigned counsel across the State — adding the Rate Calculator becomes one more hurdle to passing antitrust muster.   To be on safe ground, the bar advocates can’t just deny that they are acting jointly or organizing, they must in good faith renounce any and all concerted or interdependent decisions on whether or not to continue taking cases or to insist on particular terms as a prerequisite for staying on the assigned counsel panel or the bar advocate list.  They each have the absolute right to make an individual decision about participating as assigned counsel — they simply do not have the right to make those decisions in concert with competing providers of legal services.

Contingency Fees Inspire Ever More Lawyer Advertising — Auto Accidents to Product Recalls

Filed under: pre-06-2006 — David Giacalone @ 1:02 am

The Recorder (via Law.ComNewswire) reports that “lawyers spent $311.3 million on television commercials in 2002, a 75 percent increase from the $177.2 million spent in 1999.”   (Regularly Scheduled Programming, by Alexei Oreskovic, 09-03-03).   


Although national  “auto accident” p/i mills still predominate, the article points out the increased use of tv ads by class action firms seeking clients who have used drugs or other products that have been recalled.   The pro’s and con’s of such marketing (and the merits of the resulting cases) are discussed, along with the changing nature of the ads themselves, and the different strategy behind the new class action ads.  As the Recorder notes:

The spots are a world apart from the earlier generation of lawyer ads, which were often amateurish productions — featuring the actual attorneys touting their law firms. The ads were primarily targeted at individual auto accident victims.

By contrast, today’s typical commercial is a short, informational clip that focuses on a specific product or piece of litigation, with the name of the law firm appearing almost incidentally.

I was struck by one quote: 

“You can’t say there’s one group of lawyers or types of lawyers doing the advertising” anymore, says William Audet, a partner at San Jose, Calif.’s Alexander, Hawes & Audet, which recently launched its first television commercials.

While I agree that class action recall specialists are quite different than fender-bender/slip-and-fall lawyers, there is still one general characteristic that fits virtually all lawyer tv advertising:   The firms use contingency fees exclusively (and they never mention the percentage amount of the fee).   


What can we make of the fact that tv advertising is very expensive, and that only lawyers who charge contingency fees use the medium?   Are the p/i firms acting irrationally?   Are they extremely altruistic?   If not, we have to assume that contingency fee cases are so rewarding financially that they are worth the investment — the risk — in large tv advertising campaigns, while hourly fee matters are not.


What does that tell us about contingency fee cases in general?  curiousEsq wants to know.

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