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

April 28, 2005

mba, ambrogi & me

Filed under: — David Giacalone @ 9:40 pm


The venerable Bob Ambrogi, whose opinions and talents I respect, has taken issue with my treatment of the Massachusetts Bar Association in the post “bar & guild.”  Here is his post In defense of the Mass. Bar, followed by Comments that I left at his site:

Thursday, April 28, 2005

In defense of the Mass. Bar

I rarely use this blog as a soapbox, but, as a long-time member of the Massachusetts Bar Association, I cannot let David Giacalone’s post about it (bar & guild) go unanswered. I do not have the time to respond in as much detail as he has posted, but the picture he paints of the MBA (and of Massachusetts lawyers in general) is so far off the mark that I cannot remain quiet.

I often agree with David and, when I don’t, I nonetheless respect his opinion. But his portrayal of the MBA as a self-serving “guild” with little concern for the interests of clients and the public is just wrong.

First off, let’s make clear that Mass. is not an integrated bar – membership in the MBA is voluntary. In that sense, the MBA is very much like a guild, using the definition David links to: “An association of persons of the same trade or pursuits, formed to protect mutual interests and maintain standards.” Lawyers join the MBA in part because they expect to derive benefits from being part of this larger organization. Some of these benefits are quite tangible – savings on insurance premiums, CLE discounts and association publications – while others are less so – a community of peers, a voice on Beacon Hill. David uses “guild” as if it is a dirty word. It is not. Yes, associations represent the interests of their members – that is what they are supposed to do and that is why members join in the first place.

But be very clear: The membership of the MBA has a strong interest in public service. To the extent that the MBA exists to serve its members’ interests, it has always placed public service high among its priorities. I speak from first-hand experience as a member of the MBA who has served on multiple committees and also as the one-time editor of Massachusetts Lawyers Weekly who covered the MBA as an outsider. Through the direct work of the MBA and also through the work of its charitable foundation, the Mass. Bar Foundation (of which I am a life member), the MBA is engaged in an extensive range of activities aimed at making legal services more available and at educating the public about legal rights and responsibilities.

Yes, the MBA has been a strong advocate for fair pay for public defenders. This is an issue that is in the interest of lawyers AND clients AND the public. Fairer pay for public defenders translates into better qualified, more experienced lawyers for the clients. The better the representation indigent clients receive, the better the criminal justice system works overall.

And yes, the MBA has voiced concern about pro-se litigants and self-help organizations. But to paint this as monopolistic is a gross distortion of the issue, akin to chastising an MD for advising a patient not to treat his own illness. Sometimes an aspirin isn’t enough. The concern about self-help is that people will not seek legal advice when legal advice is called for. As for self-help organizations, some are legitimate and useful, but some are shady operations whose most likely victims are indigent and non-English-speaking people who in fact should be dealing with a lawyer.

This is not about lining lawyers’ pockets. In attempting to educate pro se litigants about the need for counsel, the MBA has at the same time worked to make counsel available, regardless of ability to pay. The MBA has one of the best lawyer referral services in the nation. It regularly conducts dial-a-lawyer programs to provide free answers to legal questions. It places lawyers in courthouses to assist pro se litigants with forms and procedural questions. It sends lawyers to classrooms to educate students about the law. It maintains a Web site, Mass. Law Help, to educate the public about the law. It provides mentors for young lawyers to ensure they are properly serving their clients.

One might forget, reading David’s post, that his primary target is the MBA’s report on lawyer discipline. Opinions will differ on the report’s conclusions, and David is entitled to his. As David notes, legal ethicist Ben Cowgill refers favorably to the report. But for David to take his concerns with this report and use them to paint a broad-brush picture of the MBA as a greedy, monopolistic entity, unconcerned with clients or the public, is a distortion of truth. To me, membership in the MBA is a cornerstone of my public service. It is a guild to which I am proud to belong, because the overriding interest of its members is the protection of the public’s legal rights.


My reply at LawSites:

David Giacalone said…

Bob, Thanks giving my post bar & guild a bigger audience. It’s clear that you’ve mastered public relations as well as law! However, I hope your readers will read my piece and not accept your description of my claims and conclusions.

I did not make up (and you don’t dispute) any of the examples, nor the quotes by MBA officials about their intentions and motivations. It seems that I’ve given you the facts, but it felt like I gave you hell.

Here is my only stated evaluation in the post of Bay State bar groups: “I’ve come to the conclusion that members of the Massachusetts bar, when acting in groups and given the opportunity, far too often put the interests of lawyers above those of clients and the public.”

Bob, I’m not foolish or jaded enough to suggest that neither MBA nor any of its members ever does anything that is beneficial to the public (and I certainly don’t begrudge its members their insurance discounts). I did look at current, important issues, and noted how MBA has responded to them. I have also quoted MBA’s description of itself and asked the reader to drawn their own conclusions.

A few points: (1) I would be thrilled to learn that MBA has worked vigorously to help pro se litigants and I will gladly publicize that fact if you provide the details — especially if the focus is on all members of the public and not merely the indigent, who would not otherwise be purchasing legal services. However, after scouring the MBA site for examples of its pro se activities, I believe the statement by its President quoted in bar & guild is much closer to MBA policy than are the three or four small grants by the Mass. Bar Foundation (using IOLTA funds) for pilot “Lawyer for a Day” programs. The Association has certainly not responded in the spirit requested by the courts back in 1997.  [Officially, MBA seems to take the position that “every litigant needs a lawyer.”  That is an overbroad, guild-like response to any concerns that Self-Help efforts are not always as effective as legal representation.  Of course, studies have shown pro se litigants to be more satisfied with their experiences at court than represented parties.  More important: consumers often have to or want to make price and quality tradeoffs when choosing products or services, and they deserve to make that choice in the legal services arena, too.]

(2) Prior to this year, MBA was often criticized for failing to support increases in fees paid to assigned counsel for the indigent. Now, they seem to be trying a bit too hard to make up for past neglect — rejecting a three-year phase-in of a 50% hike (on top of this year’s 25% raise). MBA has also rejected out of hand giving the less populated counties the benefit of more public defenders (in accord with national standards), siding instead with private-practice assigned counsel who don’t want to lose the work. You may like the word “guild,” but to this ex-trusterbuster these positions suggest the negative aspects of such organizations.

(3) I am surprised that you, an advocate for the use of online technology to inform and empower consumers, have failed to join me in decrying MBA’s stance on the “definition of the practice of law” (as well as its failure to use computers to make self-help available and effective). It seems clear that the broad definition of UPL proposed by MBA’s leaders is aimed at choking off competition derived from such technology. Maybe, in protest, you could give back the President’s Award they bestowed on you in 1994, and insist that MBA allow consumers freedom of choice and freedom to exploit the power of the digital revolution.

(4) You assert: “To the extent that the MBA exists to serve its members’ interests, it has always placed public service high among its priorities.” That sounds like something my buddy Prof. Yabut might say: You know, “Bar associations are happy to make public service one of their priorities, if it serves their members’ interests.” Maybe you mispoke.

Bob, you saw my list of MBA actions and concluded that I had made “a broad-brush picture of the MBA as a greedy, monopolistic entity, unconcerned with clients or the public.” “Greedy,” “monoplistic” and “unconcerned” are your words, not mine. I used Massachusetts as an example of a state where bar groups have confronted current issues by choosing their financial interests over those of clients and the public. I also asked others to compare their own local bar associations and think about changing priorities. Neither a guild mentality, nor noblesse oblige, is good enough for professionals who purport to always put their clients’ interests first.

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