(July 22, 2005) (“Two-thirds of the attorneys who represent poor defendants
in Middlesex and Suffolk counties refused to renew for the fiscal year that
began July 1).” our post June 9th.
Many Massachusetts Bar Advocates have no shame: they are willing to
publically break the antitrust laws, and disrupt the judicial process, in order
to coerce the State to raise their assigned counsel fees. Some of them have
started another per se illegal joint boycott, refusing to take cases of indigents
charged with murder. (see Boston Globe article, June 8, 2005). They’ve been
egging themselves on, at their Yahoo Group ListServe, since April — talking
about taking “summer vacations” again (like last year’s boycotts), with the chant
of “NNC!” (“No New Cases!”).
They say the increases to $50/$60/$100 an hour (depending on the court and the
type of case) are “below market” rates. This ignores their own statistics, in a
press release from the Massachusetts Association of Court-Appointed Attorneys
(MACAA, Aug. 9, 204), which declares that “80% of the business of criminal defense,
and defending the poor, is controlled by the Commonwealth.” If 80% of the criminal
defense services in the State are provided at the assigned counsel rates (and the lower,
per-hour wage of public defenders), the actual “market” fee for those services is surely
much closer to $50 to $100 per hour than the fanciful $200+ figures the bar advocates
would like to think they could make from other hypothetical clients.
They are enraged that the House bill would reduce the cap on annual hours billed
by a bar advocate to 1400 hours, down from the current 1850. Of course, this suggests
that— contrary to their posturing and assertions — bar advocates do not have a lot of private
clients waiting in the wings, willing to pay them top dollar for their services. Otherwise,
why would so many of them worry about a 1400 hour ceiling? Many bar advocates need
the money they make from the State very much — if there were no concerted boycott,
and decisions were truly made on an individual basis, many more of them would be willing
to take the new rates.
update: The House bill would only limit income from new cases after the lawyer
reaches 1400 hours — he or she could still bill for pending matters.
According to the Overworked Counties Chart posted at the Bristol County bar
advocate website, the average amount billed by a bar advocate in FY2004 was
$33,147. In the 6 counties where the panel members have the highest workloads,
the average dollar amount billed by each bar advocate in FY2004 was $37,694.
Under the bills passed by both houses of the Legislature this month, a limit of
1400 hours per year would yield $70,000 for the lowest level of cases; $84,000
for major felonies; and $140,000 for murder cases. A pretty good raise.
The Chart indicates that the average bar advocate in Massachusetts
handled 90 cases per year for FY2004 — Bristol County had the highest
average (119 cases) and Norfolk County the lowest (52 cases).
The Overworked Chart also shows that the average bar advocate devotes 67% of his
or her time to bar advocate work. In Hampden County it’s 85%, in Bristol County
it’s 77%. Let’s be frank: If if weren’t for their assigned counsel fees, many of these
lawyers would be working at Wal-Mart in second jobs or would have been forced to
leave the profession long ago.
Other assigned counsel are complaining that a mere $10 differential between
district court (mostly misdemeanors) and superior court (major felonies) is not enough
to get them to take the “more complex” cases. Where I come from, real lawyers seek
out the more complex cases — and probably wouldn’t even need a higher fee as an
incentive. Instead, one MACAA leader explains this week on their Listserve:
“Who needs the headache of cases that take years to resolve
when you crank out the district court cases and never look
[name withheld to protect the guilty]
How’s that for an edifying attitude?
They adamantly oppose the hiring of more public defenders, even though
assigned counsel leads to the overall lowering of efficiency and quality. (See
below for more on this issue)
[L]awyers should not be flouting the law and ethical duties in order to advance their own
I am a retired lawyer, who spent more than a decade as an antitrust lawyer at the
Federal Trade Comn and then another decade in a solo law practice focused on
serving as assigned counsel for children in NYS. After taking hundreds of assigned
cases (prior to a health-related retirement a few years ago), I know what it is like to
work for $25/hr. Massachusetts rates should be increased. But, I believe it is
inappropriate to use unalwful, coercive tactics to achieve that goal. . . . . .
As independent sellers of legal services in private law practices, assigned
counsel are not permitted under federal antitrust laws to act together to force
a buyer of their services (here, the State and its taxpayers) to increase fees.
In 1990, the U.S. Supreme Court heard all the same arguments made now by the bar
advocates, in a case involving indigent defense counsel in Washington, D.C. [i.e.,
fighting for 6th Amendment rights and better quality service; Legislature has failed to act
quickly enough; fee is too low to attract experienced counsel in adequate numbers; the
District/State has monopoly power, etc.] The Court rejected each of the reasons for the
so-called “strike,” and declared that a group boycott aimed at increasing fees is a clear
violation of the antitrust laws. (FTC v. Superior Court Trial Lawyers Assn., 493 U.S.
411, 1990). Less than two months ago, the Federal Trade Commission filed a complaint
and accepted a consent decree for similar conduct by assigned counsel in Clark County,
WA (whose experienced antitrust counsel did not even bother to raise the jurisdiction issue).
In Indiana Federation of Dentists, 476 U.S. 447, 465 (1986), the U.S. Supreme Court held
that no sellers can decide their cause is so right that they can violate antitrust laws with
impunity, in seeking to impose higher fees or other terms on their customers.
. . . [D]o not fool yourselves that there is no “concerted action,” without public or written
statements by a group refusing to accept cases. Of course, those lawyers who have publically
and jointly declared a “strike” in their districts are clearly engaged in unlawful boycotting.
Furthermore, lawyers who were taking new cases until the last month, and have suddenly
stopped, cannot immunize their decisions simply by calling them individual or “unilateral,”
or pointing to an overhead figure above the current fee. If the near-simultaneous decisions
have been faciliated, coordinated or otherwise encouraged to happen at the same time —
whether through sophisticated cyber-information sharing or courthouse gossip — they will
be found to be joint action.
. . .
Whatever a “fair fee” might be, it should not be the result of unlawful coercion on the courts and
the legislature by “officers of the court.” Yes, politicians should set a fee level that takes into
account the long-term effects on the supply and quality of legal services. But, they should not
have to act under the gun of coercive, collective refusals to deal. If each lawyer could and did
decide individually whether or not to accept the higher fee, there can be no doubt that many would
want to take cases again — both out of duty and commitment, and to pay their bills. (Unless they
already have enough work, independent providers sell their services at marginal cost, not average
overhead.) It is only due to the courage of a collective refusal to deal that the assigned counsel
are willing to risk taking no cases now — with the intention of recouping later with what they
themselves have called “deferred clients“.
Links to relevant news articles, along with my analysis of last year’s two-day
“strike,”, can be found in the following postings to my weblog, then called
ethicalEsq [now called f/k/a/.. ]
Why the Bay State Bar Advocate Boycott is Illegal
Even Struggling Lawyers for the Poor Don’t Get Antitrust Immunity
Bristol County Bar Advocate Website Walks a Legal and Ethical Tightrope
[update, Aug. 15, 2004, In response to a sample Refusal of Appointment drafted by bar
advocates and available at the Bristol County Bar Advocate website:]
Some questions for bar advocates planning to refuse to take emergency assignments:
. . . 2. If you’re going to refuse new cases on the basis of financial hardship, shouldn’t
each individual attorney show:
– whether taking the assignment would prevent the particular attorney from doing
work for actual clients already represented, with realistic projections of the amount
of attorney time available that would not otherwise be fee-generating. The court
deserves a good faith projection of lost opportunity costs (caused because actual
clients could not be accepted or served). If you have time available during your
customary working hours, refusing an appointment causes more hardship than not
taking it., doesn’t it?
– specific overhead figures for individual practices
3. You keep talking about the State’s fees not meeting your “overhead.” Please be more specific
about what expenses you include in such overhead, whether it is per-attorney overhead, and if your
numbers pertain to practices of attorneys who typically take assigned counsel work (many of whom
have no secretary or library and use a home office). Of course, depreciation and similar expenses
that do not involve actual outlay of money shouldn’t be counted (the original investment is reimbursed
quickly through tax deductions from income). Aren’t marginal costs of accepting appointment more
relevant than overhead for lawyers who have excess capacity?
4. What do you believe is the “market value” for criminal defense services? According to
MACAA’s Aug, 9, 2004 Press Release, “In Massachusetts, 80% of the business of criminal defense,
and defending the poor, is controlled by the Commonwealth.” If 80% of the criminal defense services
in the State are provided at the assigned counsel rates (and the lower, per-hour wage of CPSC employees),
the actual “market” fee is surely rather close to $30 to $40 per hour. Another way of thinking about his: If
the State were not paying for services to represent indigent defendants, how much would the indigents be
paying you? (From an economics or market perspecitve, are there just too many lawyers in your segment
of the profession to support the fee levels you believe you deserve because you have law degrees?)
Mr. Crane, please consider this my informal ethics complaint against all bar advocates in Massachusetts
who acted jointly in refusing to take new cases — especially the officials and members of Suffolk County
Lawyers for Justice, whose 300+ members gave it immense coercive clout, and the Bristol County Bar
Advocates. [Bay State residents, taxpayers and attorneys are urged to go to the Massachusetts Bar
Counsel Complaints Page for informatiion on lodging their own official complaint.]
Of course, individual lawyers have the right to chose not to accept a case or client. That is not
what happened here. Independent competitors decided to act jointly to pressure the Government
into meeting their demands for immediate pay. They intended to disrupt the court system and to
scare political leaders into accepting their demands. This was not mere First Amendment speech
or lobbying — it was a group boycott supported by the joint refusal to deal with the “buyer” until
demands were met. The boycott was supplemented by activities meant to police or harrass other
members of the group to assure their participation in the boycott.
This activity appears to fall clearly within the type of lawyer misconduct proscribed in Massachusetts
Rule 8.4 (emphasis added):
RULE 8.4 MISCONDUCT
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness,
or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(h) engage in any other conduct that adversely reflects on his or her fitness to practice law.
Without a doubt, Rule 8.4(d) has been violated, by intentional conduct highly prejudicial
to the judicial process — and not just in one case, but across the entire system. If Bar
Counsel winks at this, Massachusetts can expect to be held up periodically by their criminal
defense counsel. On the other hand, disciplinary action will demonstrate that lawyers are
not above the law — even when they are fighting (at least partially) for the rights of others.
Public denunciation of the tactics will prove that the Office of Bar Counsel is indeed working,
in the words of its Mission Statement, “to protect the public from unethical conduct by lawyers
and to preserve and enhance the integrity and high standards of the bar.”
[The pilot projects proposed by the Commission studying the Massachusetts
situation] are, I believe, especially important, because:
(1) They will help increase the ratio of private to public defense
counsel to levels meeting national standards.
(2) They will help assure that future attempts at coercive joint boycotts
aimed at increasing fees (or decreasing PDs) will be less effective.
The recent landmark American Bar Association report on the nation’s indigent
defense system, “Gideon’s Broken Promise” (Feb. 2005) concluded that
defendants are more likely to receive consistently competent representation in
a system with fulltime public defenders, having statewide monitoring and funding,
than from situations that rely heavily on assigned counsel. The Study specifically
noted as a problem in the Massachusetts system that:
“Although national standards recommend the use of public defender
programs wherever the population and caseload are sufficient to
support such organizations, in many areas of Massachusetts, there is
almost complete reliance on private assigned counsel, especially in
misdemeanor and juvenile delinquency cases.”
The Gideon Report [at 27] favorably quotes one witness who explained “we
have to overcome the private defense lawyer’s fear that a public defender office
will result in a loss of business.” That fear is clearly widespread in Massachusetts,
as it was throughout Upstate New York, for many years, where assigned counsel
fought hard to prevent the establishment of public defender offices. (The Mass.
assigned counsel are also complaining about the Report’s proposal to limit their
yearly hours to 1500 .)
There is already chatter on the Massachusetts assigned counsel ListServe about the
pilot projects being merely a means of “control.” The Massachusetts public, Courts
and Legislature — having been subjected to group boycotting by the bar advocates,
(who now understand the power of their concerted coercion and seem willing to hint at
using it again) — have every right to attempt to control the system. As I said on Saturday,
the Commission’s proposals appear to take into account the legitimate goals of all the
. . .
MACAA says it was formed “to ensure that the highest quality of legal
representation is given to each and every person entitled to court appointed
counsel regardless of ability to pay.” It will be interesting to see whether
it chooses to focus on the goals of a guild: securing higher fees and assuring
work for its members (through opposition to the increased use of public defenders,
which would help the State comply with national standards for indigent defense) or
whether MACAA chooses good faith cooperation with state leaders to build an
indigent defense system that will work effectively and efficiently for their clients,
the courts and the public.
Supplement (July 26, 2005): National standards for indigent defense favor fulltime public defenders, whenever the population and caseload can support them. (Gideon’s Broken Promise, ABA, 2005.) In Massachusetts, 95% of indigent defense is handled by private assigned counsel. [See the 2005 Mass. Study Commission Report, at pp. 9 – 10.] Nevertheless, the bar advocates have rabidly opposed the Study Commission’s proposal to have test projects, which would hire more public defenders in the rural counties where the problem is most extreme, and to move toward a more appropriate ratio PDs to BAs — because they do not want to lose the income.
In Hampden County virtually all district court cases are handled by bar advocates. According to MACAA, the average panel member spends 85% of his or her time on bar advocacy work, in Bristol County it’s 77%. (per Bristol County Bar Advocates chart)
In its section on Massachusetts, the recent landmark American Bar Association report on the nation’s indigent defense system, “Gideon’s Broken Promise: Massachusetts” (Feb. 2005) specifically noted as a problem in the Massachusetts system that:
“Although national standards recommend the use of public defender programs wherever the population and caseload are sufficient to support such organizations, in many areas of Massachusetts, there is almost complete reliance on private assigned counsel, especially in misdemeanor and juvenile delinquency cases.”
Despite this statement, bar advocate spokespersons continuously say that the ABA Gideon Report praised the Massachusetss system. [See., e.g., quote from MACAA press secretary Nancy McLean, to the Lowell Sun Times.] The Gideon Report actually praised the “approach” used in Massachusetts of training the assigned counsel and monitoring them. The Report stated that the basis for their conclusion was the testimony of one witness — Bill Leahy, who is in charge of CPSC, the agency that oversees the bar advocate system, and has the task of training and monitoring the assigned counsel. [See fn. 401 of the full Gideon Report.]
The Massachusets Study Commission noted that when the system was originally set up:
“The idea was that representing indigent persons would allow private attorneys to supplement their income while simultaneously building a private practice.35 Moreover, as noted in Lavallee, the work voluntarily undertaken by private attorneys willing to accept CPCS cases is in the nature of public service because the source of compensation is the ‘limited public treasury’.36
“There has been, however, a gradual yet persistent movement away from that original intent, as an ever increasing number of private attorneys derive all or a significant part of their income from CPCS cases. As more and more private attorneys have come to rely almost exclusively on CPCS cases for their livelihood it is understandable how this group has come to feel underpaid for their services. Such feelings, however, overlook the fact that the hourly rates paid to CPCS private attorneys were never intended to be sufficient to sustain a private practice.”
As MyShingle‘s Carolyn Elefant recently explained, responding to bar advocate opposition to a cap of 1400 hours per year per panel member, Court Appointed Work Is Not Supposed To Be A Full Time Job! (July 23, 2005). I also agree with her Comment at the Andrew Winters Blawg, that — when using an assigned counsel panel as part of the indigent defense system — we can expect better attention to indigent cases from lawyers with self-sustaining law practices who take indigent work out of a sense of public service, and from less experienced lawyers who take the cases to gain valuable experience. When assigned counsel spend the vast majority of their time on indigent work, but are still attempting to find more lucrative private clients, they will surely give the private client special attention.
You might have thought that the The Massachusetts Association of Court
Appointed Attorneys (MACAA) and MBA would have been thrilled with the
Report issued earlier this month by a special commission formed to study the
“indigent defense crisis” in the State. The Report recommends a 50% increase
in fees over the next three years (on top of a 25% increase received this year),
and the establishment of two pilot projects that would use more public defenders
which advise against the almost total reliance on private attorneys for indigent
defense that now exists in those and other Massachusetts counties. (see our post
Sadly, you’d be wrong. Both MBA and MACAA have instead called for immediate
implementation of the full pay hike (MACAA wants even more, including interest,
for a total of a 113% increase in the past two years) and for full rejection of the pilot
answer to my question “will MACAA react like a guild to indigent defense report?” is
clearly “yes’. Saving private counsel jobs and increasing their fees will clearly come
before the public interest or the smooth operation of the justice system.
On April 17th, MACAA’s board voted unanimously that rates should be “fully
implemented now” and that the pilot programs should be rejected. In paragraph
after paragraph, MACAA President Thomas Workman whines that “No professionals
in Massachusetts have ever had pay rates ‘phased in'” (and nor have assigned counsel
in any other state or nation!). Of course, Workman doesn’t mention the size of those
other pay hikes or the fiscal situation (imagine giving policemen or judges, or independent
snow plow operators a 67% increase in one year). As for the pilot projects that would use
state-employed public defenders MACAA’s Board states:
“Pilot programs are only needed to collect data, and this is not
necessary. Either the programs are being implemented for some
ulterior purpose, or they are not needed. In either case, the state
should not waste money on unnecessary pilot programs.”
[if/when available online, I will supply a link]
More to the point, MACAA President Workman vows
“MACAA will not ‘sell out’ court appointed attorneys on any panel”
by recommending pilot panels.”
The Massachusetts bar advocates are continuing to put put their own financial interests above the law,
their ethical duties and the needs of their clientele:
First, they held a practice statewide boycott in 2003, shutting down courts and showing their destructive power;
then, they used a website to facilitate their joint action to raise their fees;
in July, they orchestrated statewide illegal group boycotts last summer, to force the State to pay them higher fees — virtually closing down a number of courts and forcing the release of some prisoners;
in August, they insisted that a coerced 25% pay hike passed by the Legislature was insufficient and refused to return to work;
next, they screamed and whined when desperate judges used emergency powers to appoint lawyers to indigent defendants, in order to stem the crisis created by the boycotting bar advocates;
today, The Massachusetts Association of Criminal Defense Lawyers, the Massachusetts Association of Court Appointed Attorneys, and three Springfield lawyers filed a lawsuit asking the full court to reverse the Interim Order by Justice Francis X. Spina that upheld the emergency appointment power
the mountain moon
gives the blossom thief
– haiku of Kobayashi ISSA, translated by D.G. Lanoue