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August 12, 2004

Please End the Boycott

Filed under: — David Giacalone @ 10:12 pm

– below is the text of an email sent by David Giacalone to many Massachusetts bar advocates and other interested people, on Aug. 12, 2004 —

Update: Does “Bar Advocate” equal “Greedy Lawyer”? (July 23, 2005)
has extensive commentary, with excerpts and links from prior posts

-recent coverage at this weblog can be found here.

Dear Fellow Lawyers and Interested Public Servants:

I’m writing to offer another reason to start accepting assigned counsel cases again: the bar advocate “strikes” are actually unlawful joint boycotts in violation of antitrust law. National coverage is surely attracting the interest of federal enforcement officials.   More important, lawyers should not be flouting the law and ethical duties in order to advance their own financial interests.

  • 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.
Please don’t believe the specious notion that there are no effects on interstate commerce and therefore no federal jurisdiction.   Similarly, do 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.
  • 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).
Below. I have included additional analysis, with links to materials on my website [formerly called ethicalEsq and now f/k/a . .. ] .  Please go back to taking assigned indigent cases, as requested by Bill Leahy, Gov. Romney and AG Tom Reilly.  You have received a 25% pay raise, plus a promise for more discussion by the Governor and Legislature next week.  After only one session of lobbying, you should declare victory and prepare for further lobbying efforts — and not continue the further use of coercion that is both unlawful and an unethical disruption of judicial processes.
yours sincerely,
David Giacalone (Member NY, DC bars, ret’d)
p.s.  Why is this any of my concern? I believe (1) the reputation of the legal profession is important and that Bar Advocates and allied assigned counsel are harming that reputation with their boycotts; (2) that no group, especially lawyers, is above the law; and (3) that the antitrust laws make good sense and correctly hold that no sellers can decide their cause is so right that they can violate those laws with impunity, in seeking to impose higher fees or other terms on their customers.  See Indiana Federation of Dentists, 476 U.S. 447, 465 (1986).
Additional Analysis
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
  • Concerted Activity to affect fees:
    There must be joint or “concerted” action for there to be an antitrust violation when sellers are not selling to a buyer — each seller is allowed to unilaterally decide not to deal.  But, there does not have to be a signed conspiracy pledge.  Encouraging a boycott and exchanging information to facilitate it is suffficent for a finding of joint action.  A  thousand assigned counsel nearly simultaneously refusing to take new cases is obviously suspicious.  However, there also is a significant amount of public evidence of unlawful concerted activity — for example, the “strikes” declared in various counties.
    The Bristol County Bar Advocate website, edited by Tom Workman, appears to be a primary source of information, encouragement, and coordination for the bar advocates across the state.  At this time, there is a banner across the top the Homepage that reads (in red):  ‘Attorneys declining duty days statewide, cannot afford to work for rates paid!!‘   On August 4, 2004, the BCBA held a meeting to discuss the recently passed pay raise.  Later that day, the following message appeared on the website’s What’s New Page:   “Bristol Bar Advocate Membership Meeting held: Consensus of members is that they cannot afford to take new cases” (My Sept. 1, 2003 Tightrope posting discussed the problems raised by using the website to coordinate fee-increase activities.)   In my opinion, given traditional antitrust precedent on the issue of concerted action, the Bristol County lawyers could easily be found to have engaged in a joint effort to raise price by refusing to take new cases (even if there were no explicit call for a strike).
    The Bristol County BA website includes other “facilitating” behavior; for example:
    A consistent theme in all public statements by bar advocates and MACAA is that the current fee level is below the average overhead of small and medium size law firms, so that no lawyer can afford to take additional cases. In addition, they claim that the state is violating the 6th Amendment right to counsel by not paying fees sufficient to attract an adequate number of experienced lawyers.  Since the Lavalee decision, they have also claimed that the high court agrees with them that fees are too low and thus sanctioned their efforts to prod the Legislature. The Bristol County Bar Advocates group has also requested an advisory opinion from the Mass. Bar Counsel, in which they (shamelessly) argue that it is unethical for a lawyer to take  indigent defense cases now, since defendants would otherwise be released from custody, an outcome that is “better” for the accused defendants (but would mean no lawyer should ever represent a criminal defendant).
    • Lavallee is about the rights of the defendants, not the legality of concerted boycotts or related immunity for assigned counsel to dictate terms to the Legislature. The Court did not rule on whether joint boycotting and coercion are acceptable means to achieve the increased fees.
    On Aug. 6th, Tom Workman sent an e-mail to me, responding to my position that the boycott by Bar Advocates is unlawful and unethical.  Tom stated that the Lavellee decision has changed the landscape, and may instead make it unethical for indigent defense counsel to take cases.  Click here to see his message and the response I posted at the weblog TalkLeft (which also addresses the “can’t pay our overhead” argument).

    What may assigned counsel lawfully do as a group to achieve better fees? Please see Assigned Counsel Don’t’s & Do’s (based on the FTC Clark County Order), which lists conduct not permitted and conduct that is allowable.    See also, Antitrust Implications of Negotiating with Third Party Payers (by legal counsel at Foley, Lardner, Weissburg and Aronson, Inc., for American Assoc. of Physician Assistants); Third party messenger antitrust problems (by Daniel B. Vukmer, Esq, Physician’s News Digest, Oct. 1998).DOJ Press Release (Aug. 12, 1998) and Final Judgment (11/06/2002) in U.S. v. Federation of Physicians and Dentists; FTC Press Release re Analysis of Agreement In the Matter of Physician Consulting Network, L.L.C. (July, 2003).

    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:

    A few questions for the bar advocates who are refusing, even if ordered under the emergency powers of the local courts, to take new cases::

    1. You complain that Massachusetts has made it unlawful for you to form a union.   No other sellers of services in the nation — that is, people who are in business and are not employees — have the right to unionize or call “strikes.”  Such conduct is instead an unlawful joint boycott.  Why do you believe you have special immunity from the antitrust laws, which clearly apply to assigned counsel refusing to take cases in order to force an increase in fees?  [FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 1990; see Indiana Federation of Dentists, 476 U.S. 447, 465 (1986) (good intentions do not immunize joint refusals to deal)].

    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).   Health care insurance costs are also not overhead.  Also, 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?)

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