the archives of f/k/a . . .

Some of the protesting lawyers might have gotten the antitrust liability message. In the Globe article, for example, Taunton lawyer Robert P. Kidd went syntactically out of his way to stress that each lawyer was acting unilaterally:

“Spontaneously, attorneys like myself were just pushed over the edge,” said Robert P. Kidd, a Taunton lawyer refusing new cases. “Individual attorneys said: ‘Enough is enough.  I can’t afford to take these cases anymore.’ ”

Nonetheless, the article certainly suggests some coordination is going on (emphases added):

• “One day last week, Kidd temporarily brought business in Wareham District Court to a halt when he announced that he would not take on the day’s cases. The judge queried as many as 10 other lawyers in the room, who also refused to take on clients. Finally, one lawyer agreed.” And,
  
• “The lawyers had originally planned their work stoppage for the fall, but after they heard about budget problems last week, some acted sooner. They say they may continue their walkout at least until the Legislature replaces some of the money cut from the budget of the last fiscal year, perhaps longer.” And,
  
• “‘I think the point is to send a message,’ said Paul J. Machado, a Fall River lawyer representing the bar advocates in a class-action lawsuit filed last year that demands more money. ‘The message is how invaluable these services are. The court does not function without these services being provided.’”

Joint boycotts by competitors are banned because their coercive effects unfairly skew market forces, forcing the buyer to pay more for services or products or change conduct in some other way. Here, the government — and ultimately the taxpayer — is the buyer. By jointly refusing cases or threatening to do so, the bar advocates are counting on their coercive “message” to produce an increase in fees. (And, maybe counting on the backlogged cases to be waiting for them when the boycott is over.)  This is no way for officers of the court, and self-proclaimed defenders of the down-trodden, to be acting.

Trained and experienced lawyers ought to be able to come up with a lawful way to lobby and to get their message to the public and state officials.*  Claiming “individual” actions while acting “concertedly” doesn’t cut the muster.  My plea to my colleagues: Take those cases, serve your clients, lobby like hell.

*Footnote: You can find a lot of information about the bar advocates’ battle for better compensation at the website of the Bristol County Bar Advocates including a comparison chart showing compensation rates in other states. Additional resources include:

• A page on the activity in other states to gain increased fees, “through the filing of lawsuits or through work stoppages”
  
• Information on their Compensation Lawsuit
  
• Participation in a “Lobby Day“ in Boston, on March 18, 2003 (the 40th anniversary of Gideon v. Wainwright, which guaranteed the right to counsel for indigent criminal defendants),
  
• A link to the ABA’s “Ten Principles of a Public Defense Delivery System.”

For a Directory of County Bar Advocate Bureaus in Massachusetts, click here.

I have another idea for law students who tote laptops. Scan all of your materials into PDF and buy a copy of Adobe Acrobat (the educational price for the full version is around $60 –and the regular price is $250). Then learn how to put stickie notes and how to annotate using Acrobat. When you go to class take notes right on the case (or statute) that you are covering. Later you’ll be able to jump right to the pages with notes, and you’ll be able to print your notes out. Most importantly, the notes will be attached to the materials that they relate to.

With a similar spirit of empathy, my (wiseguy) sidekick, Jack Cliente, left the following Comment at Ernie’s site (slightly edited for publication purposes):

Hey, Ernie, I gotta know:

(1) How long would it take to scan every page of every text book into pdf form? And how long will it take for a copyright infringement suit to arise?

(2) Was it my Editor’s paper route or law school experience that created his chronic back problems (and grumpiness)?

(3) Do you know a good p/i lawyer with both a theory of liability for all those bad backs from stuffed student backpacks and a list of likely deep-pocket defendants? 

(4) Why aren’t you telling prospective law students the truth? To wit:  There are way to many lawyers already, and technology, plus the coming consumer-citizen self-help law revolution, will soon be forcing most lawyers to find honest, productive work (outside the profession).  So, avoiding law school altogether, or lugging books in preparation for a career change, might be the kinder, better advice.

Visitors with ethics-related advice for new law students are particularly urged to leave a Comment.   Those interested in the Self-Help Revolution might want to check out our postings on June 15th and June 18th, and surf over to Nolo.com.

ethicalEsq?ethicalEsq?ethicalEsq?

Welcome  to the Blawgosphere, Robert Unterberger, with your one-day old twin (but not identical) sites, the Pennsylvania Personal Injury Lawyers Blog and the New Jersey Personal Injury Lawyers Blog.  And thanks for linking to ethcialEsq?  While the blogs may be newborns (dob 7/30/03), Robert’s resume and experience look pretty impressive.  I hope he’ll occasionally let me know whether he agrees or disagrees with the opinions voiced here.

In addition to discussing and providing the text to four court cases on confidentiality, and two opinions on secret taping, the latest edition has three other topics of particular interest to this Editor:

(1) Delaware Sends a Signal on “Enhanced Duties” of Managing Partners.   EandLT explains that “Delaware managing partners have ‘enhanced obligations’ under Delaware rules to ensure that their firms comply with the ethics rules, especially including rules governing trust accounts.” See In re Bailey, 821 A.2d 851 (May 2, 2003)  Here’s a message that ought to be heard across the nation.

Obligations With Respect to Mentally Impaired Lawyer in the Firm

If a lawyer’s mental impairment is known to partners in a law firm or a lawyer having direct supervisory authority over the impaired lawyer, steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules. If the mental impairment of a lawyer has resulted in a violation of the Model Rules, an obligation may exist to report the violation to the appropriate professional authority. If the firm removes the impaired lawyer in a matter, it may have an obligation to discuss with the client the circumstances surrounding the change of responsibility. If the impaired lawyer resigns or is removed from the firm, the firm may have disclosure obligations to clients who are considering whether to continue to use the firm or shift their relationship to the departed lawyer, but must be careful to limit any statements made to ones for which there is a factual foundation. The obligation to report a violation of the Model Rules by an impaired lawyer is not eliminated by departure of the impaired lawyer.  (emphasis added)

The NYLJ article continues:

Aretakis, who was representing alleged victims of clergy abuse years before the national church scandal broke, is a particularly aggressive and media-savvy advocate who has used publicity and the threat of it in demanding settlements.

Church officials have repeatedly questioned Aretakis’ professional ethics, while Aretakis, a solo practitioner, has repeatedly suggested that the diocese and Bishop Howard J. Hubbard are attempting to stifle litigation by stifling the litigator.

The ethics complaint at issue here was filed by Sister Anne Bryan Smollin, a defendant in a lawsuit filed by Aretakis.  Sister Smollin takes issue with questions raised by Aretakis about her qualifications and impartiality counseling clergy abuse victims.  In addition, she points to Aretakis as the source of untrue allegations about her personal life.

I can’t pretend to know enough about the facts to have an opinion on the outcome of this ethics investigation.  Absent a judge’s gag order, a lawyer certainly should be able to make truthful statements to the press, about a pending (and non-frivolous?) lawsuit.   Whether doing so actually helps the client’s cause is another matter completely.   I wonder if requiring “honorable” rather than “zealous” advocacy on behalf of a client would alter the lawyer’s ethical restraints or duties.  (See our posting about Arizona’s deletion of “zeal” from its Rules of Conduct.)