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

March 16, 2004

Editorial Malpractice in Massachusetts

Filed under: pre-06-2006 — David Giacalone @ 10:20 pm

Since we wrote last month about the assigned counsel fee controversy in Massachusetts, the editorial board of Massachusetts Lawyers Weekly has officially opined that Governor Romney’s constitutionally-questionable, three-prong “reform” plan is “worth a try.”  (MLW, “A New Plan for Bar Advocates,” 03-08-04)  I have neither the energy nor the patience to describe all the things wrong with this mess of an editorial, but I urge you to take a look.  You can find the editorial here,

wrong way . .

Suffice it to say that, if this editorial were a brief on the merits of the plan, its authors could easily be charged with malpractice.  The lack of research; the failure to address major issues; the twisted reasoning; and the tortured prose, all suggest a want of competence and diligence.   The only sign that an advocate wrote the piece is its unwavering devotion to the Governor’s plan.

An excellent response has been written by William J. Leahy, the chief counsel of the Mass. Committe for Public Counsel Services (which administers the state’s assigned counsel program and employees public defenders).  Salem, MA, attorney Robin J. Adler, has also written a strong dissent on the MLW editorial. 

The Editorial ignores or brushes off the major arguments raised in opposition to the Plan by CPCS and by The Massachusetts Association of Court Appointed Attorneys, which has been trying to establish a funding mechanism that meets constitutional requirements and assures assigned counsel fair compensation for their legal services. 

  • Most important, as stated in an MACAA press release issued 02-26-04:  “Constitutionally mandated court functions must be fully funded by direct appropriation. Contingent funding for core court functions and indigent representation is unconstitutional. Funding public defenders from indigent counsel fees was found unconstitutional on February 12, 2004 in Minnesota, and has been found unconstitutional in other states.” . . .

The Governor’s proposal to use so-called “retained revenue” to fund constitutionally mandated core functions constitutes contingent funding, illegally attempting to balance the Commonwealth’s budget on the backs of the poor.

money fist neg  The MLW editorial doesn’t even mention the constitutional issue, despite a recent decision from the Minnesota Supreme Court, which we discussed here, finding co-pays by indigent defendants unconstitutional.  The Board does raise, but is not deterred by, the plan’s proposed contingent payments for motions to suppress — no fee for unsuccessful motions.  Worse, the editorial passes over the fact that in many respects, assigned counsel will be paid less under the Romney/Winslow plan.  The philosophy seems to be: things are so wrong that anything, any change is worth trying.  The Board is wrong.

  • Only last August, the Portsmouth Herald quoted David Yas, the editor of MLW, as saying that attorneys for indigent defendants are ”the forgotten stepchildren of the legal system.”  Moreover:

    ”They get paid peanuts, when the state feels like paying them, and they handle bottom rung cases without a trace of fanfare,” he said.  The problem, Yas said, is that lawmakers control the funding, and neither the lawyers nor their clients are a strong constituency.  . . . [T]he situation is reaching a ”breaking point,” and the public needs to realize better pay is a safety issue.”

    Yas concluded:  ”This is a point where (attorneys) have to make particularly loud noises because it’s at a point where it’s particularly bad.”  Maybe that’s why he wrote such a dreadful editorial — he wanted to get Massachusetts assigned counsel making really loud noises.  Well, it worked. 

Update (03-17-04): David Yas, Publisher/Editor of Massachusetts Lawyers Weekly has sent me the following clarification:

This “blog” contains an inaccuracy that I’d like to correct. It states that I “wrote … a dreadful editorial.”  Whether the editorial is “dreadful” is obviously a matter of open debate (and we are doing our best to air all the substantive criticism this editorial has spawned).  But I didn’t write the editorial.  As the editor of the paper, I edited it, but our editorials are a product of our 30-member board. My personal opinion has very little or nothing to do with our editorials.  As far as my comments as quoted by the Portsmouth Herald, I’m glad to see them here. (They are completely accurate.)  My colleague wrote on this Forum earlier that Lawyers Weekly has, in the past, been a defender of court-appointed lawyers (many of our past editorials on the subject consistently reminded readers that these lawyers are underpaid).  My quotes, which if memory serves were delivered to the Associated Press and picked up my many newspapers, are consistent with our historic support of bar advocates.
David Yas
Mass. Lawyers Weekly

  • (03-17-04) Massachusetts Assigned Counsel activist Deborah Sirotkin Butler, Esq., emailed this positive reaction to Dave Yas’ statement:

“This post from David Yas is in character.  Since the publication of the original, problematic editorial on March 8, 2004 David Yas and MLW have opened their publication to letters and responses, and shown a real willingness to examine the issues involved in a well-rounded and truly gracious manner.”

BBB Ad Torched by Colorado Bar Groups

Filed under: pre-06-2006 — David Giacalone @ 6:58 pm

laughing man flip “You inherited a fortune . . You hired a lawyer . . Now it’s his fortune.”

It was a pretty funny lawyer joke, but two Colorado bar groups were so offended that they’ve forced the Denver/Boulder branch of the Better Business Bureau to pull its 15-second “check with us first”  tv ad from the air.  The BBB’s sin: daring to suggest that consumers might obtain useful information about lawyers from the Bureau.

According to an article from the Rocky Mountain News, the Denver and Colorado bar associations, brought their complaints before the BBB’s new advertising and ethics committee, complaining that “the ad was offensive and demeaning to their profession.”  (“BBB pulls ad after flak from attorney groups,” by John Accola, 03-13-04) (thanks to W.O. for the pointer)  The article reports that,

“With 12 members voting, the committee advised the BBB to pull the ad and reword the narrative. One suggestion called for revising the “You hired a lawyer” line to ‘You hired the wrong lawyer.'”

The local BBB president complied, noting:

“I don’t agree with them . . . but I don’t want to go around ticking people off,” said Jean Herman, president and chief executive of the Denver/Boulder BBB. “I have to respect their opinion.”

As if this doesn’t make the legal profession look bad enough, Greg Martin, deputy executive director of both bar groups, declared that they would not even approve the modified narrative, “You hired the wrong lawyer,” saying
“[O]ur goal was not to have that ad on TV anymore.”    ..smallest shark gray flip
The RMN article states, “Martin said poking fun of bad lawyers isn’t the same as disparaging, say, bad plumbers. . . . The BBB isn’t in a position to judge crooked lawyers from the honest ones, Martin said.”
smallest shark gray “For them to hold themselves out as having some special knowledge about attorneys is really inappropriate.”
Martin emphasized that Colorado’s lawyers are highly regulated.  I bet he did not point out, as HALT did in its 2002 Report Card, that Colorado has “the seventh worst investigation rate in the nation,” looking into less than 10% of grievances filed.
  • The effectiveness of the ads almost certainly bothered the Colorado lawyers — there was a fourfold increase in consumer inquiries last month on legal services, compared to February 2003 (from 158 to 639 requests for a “reliability report”).  But, I have to credit spokesman Martin for his frankness about their primary purpose — the bar groups want no monitoring of lawyer conduct and client complaints by nonlawyer organizations (especially not respected ones).
The facts of the BBB situation show just how extreme the bar’s position is.  The BBB specifically says that it does not handle “Complaints raising issues concerning the competency of doctors, dentists, licensed therapists, veterinarians, and lawyers.”  Instead, in order to “Help consumers make informed pre-purchase decisions,” the BBB handles marketplace issues, that is

“Complaints involving marketplace activities — misleading advertising, improper selling practices, non-delivery of goods or services, misrepresentation, un-honored guarantees or warranty, unsatisfactory service, credit/billing problems, contracts not fulfilled, etc., are handled by the Better Business Bureau where the company is located.”

In performing this role,

handshake “BBB does not take either side in a dispute. Instead, we work to facilitate communication between the company and the consumer, to help both sides come to a satisfactory resolution to the complaint.”  It does:

  • Advocate mediation to resolve disputes
  • Award only two levels of ratings to businesses –  “Unsatisfactory” or “Satisfactory”
  • Emphasize preventative steps to avoid a dispute, not just remedial steps after it has occurred
  • Gather and deliver information about buyers/sellers in an objective manner
  • Give all sides in a dispute a fair and reasonable chance to cure/resolve
  • Help consumers make informed pre-purchase decisions
  • Keep records on all sorts of transaction-related disputes over a three-year period

In contrast to this practical, informal process aimed at resolving disputes, the bar associations have two basic suggestions for a client with a complaint: (1) try to work it out with your lawyer; and (2) file a formal complaint.   Of course, the Denver bar advises clients who do turn to the formal complaint process that “If you file a request for investigation, this would put you in an adversary position with your attorney and you would want to hire another attorney.”
Given the well-documented failure of the lawyer discipline systems nationwide to provide adequate relief to unsatisfied clients, local bar groups should be doing all they can to establish or cooperate with less formal methods, such as those provided by the BBB.
  • To oppose such processes — and especially to fear the use of data banks that help consumers make better-informed choices among lawyers — makes it clear that lawyers put their own interests above those of their clients.  That is not funny at all.
  • In case your are wondering, the Colorado BBB does have quite a few lawyer members, who willingly subscribe to its code (often as a useful marketing tool).  For example, the 15-lawyer business firm, Minor and Brown, PC.

Update (03-17-04): In a well-crafted post on this topic, Overlawyered.com notes, “Now suppose that some other profession or industry — medicine, say — were to assert that its mysteries are so esoteric, and its success in self-regulation so complete, that lay observers should not presume even to compare notes with each other on their bad experiences with it. Hard to imagine, these days, isn’t it?”

Powered by WordPress