f/k/a . . . the archives

July 31, 2003

Balking “Bar Advocates” Should End Their Bay State Boycott

Filed under: pre-06-2006 — David Giacalone @ 8:34 pm

The Boston Globe reported today that Massachusetts “bar advocates” are continuing to protest over their generally low pay and their failure to be paid for Fiscal ’03 services they have performed. (Bar advocates stage protest: They refuse cases on budget issues, by Kathleen Burge, 7/31/03.) Bar advocates are court-appointed attorneys for the indigent, who work in private law practice, and are paid by the hour.


In two postings over the past weekend (July 26, 2003), this blawg reminded my Bay State colleagues that concerted refusals to deal by otherwise independent sellers of services violate the antitrust law — even when done by professionals for quality of service or other public interest purposes, and even when done by “good guys” like low-paid court-appointed attorneys.  I’m even going to cite the U.S. Supreme Court case again for them, FTC v. Sup. Ct. Trial Lawyers Ass’n, 493 U.S. 411 (1990).  Unions of employees have specific antitrust immunity for strikes and boycotts.  Private attorneys simply do not.


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.

4 Comments

  1. Your references to the FTC v Superior Court Lawyers miss the major issue in that case, that being that in the Washington DC case, essentially all of the attorneys on the CJA list met, voted, and signed a document stating that they would not return to work until their pay was raised. The US Supreme Court evaluated and decided the case as a “price fixing” case. Massachusetts attorneys have not met, havew not signed any manifesto, are not acting as a ujnified body, and are not attempting to effect wages they are aid (they have brought a lawsuit that alledges that wages are Constitutionally inadequate).

    Ironically, prices are being “fixed” by a single entity that controls some 90% of the market. That entity is the government. But only as to attorneys who practice criminal law (civil attorneys are allowed to “bid” for work, at market rates). Civil attorneys are likely to be paid ten times what a criminal attorney is paid, and in every case written about in the recent Mass Lawyers article, they will be paid more for the simplist of civil work than an attorney of 25 years will be paid to try a first degree murder.

    Bar Advocates are not allowed to form a union, in that they are not employees. Working conditions and pay are the worst in the judicial system, but why should that surprise anyone?

    Most attorneys will tell you that they will not undertake new work for a client if that client refuses to pay them for work already performed. On Friday, July 18th, the Commonwealth abruptly informed attorneys that there was no money left, and that they would not be paid FOR WORK ALREADY DONE. It is no coincidence that the refusal to take cases began the next week.

    Taking new cases presents a serious ethical problem for attorneys. Once an attorney takes a case, he cannot simply drop the case without leave of court, leave that is expected to get harder to obtain with time.

    Most “experts” who work for indigent clients have not been paid since April 2003, and most of them will not take cases until they ave been paid for work already done. The term “experts” includes private investigators, doctors, and anyone who would assist in the defense of a case. If the case I am about to accept needs an expert to properly defend the client, a bar advocate may be unable to mount a proper defense, if an expert is needed.

    The FY04 budget only funds bar advocate attorneys through about April 2004, and Romney has said that there will be no supplemetal budget. If the legislature will not pass a supplemental budget before the end of the last session to pay for work already done, why does anyone think they will do so this next year?

    CPCS has a policy that you cannot get paid for a case until the end of the case, or the end of the fiscal year. They could easilly change this, since the attorneys now do all of the data entry on the case (a recent change that added about 10% to the time an attorney spends on a case, time that the attorney is NOT compensated for).

    The ethical problem that the budget and the CPCS compensation timing policy presents is as follows: a defendant is arraigned and an attorney is appointed to represent him. The attorney evaluates the case, investigates defenses, and discovers that there are motions to suppress and time consuming legal work necessary to defend the client. If the attorney undertakes the work to zealously defend the client, and in doing so the case extends past April of 2004, the attorney is virtually guaranteeing that he will not be paid a dime on the case (the attorney is not allowed to bill until year end or case closed, at which time there will be no money left to pay him).

    The attorney in the above situation does have an alternative, and that is to plea the client out at an early proceeding, and thereby get paid.

    The attorney faces an ethical problem. Zealously advocate for the client, and not get paid; or ineffectively advocate for the client, and get paid. Faced with that choice, many attorneys are refusing to accept new cases, for fear that they will have to make that choice.

    Had the facts in FTC v Superior Court Lawyers Association shown that attorneys acted in concert to avoid new cases because the government had not paid them for work already performed, and that new cases that they accepted would not be compensated unless the defendants promptly plead guilty — I suggest the result might have been very different.

    As an aside, if you know how to contact all of the bar advocates in the state, counsel fo the wages lawsuit would appreciate your advice. While all attorneys must access the CPCS billing website, and while we have requested that CPCS collect an email address for all billing attorneys — CPCS has flatly refused. There are 13 bar advocate non-profit corporations, and only some of them maintain email distribution lists. Most bar advocates cannot afford a subscription to Lawyers Weekly, and there is no other printed news that is distributed statewide.

    I ask the above question because the bar advocate pay lawsuit includes a motion to certify the class, and communicating with the class will be an important task in the months ahead.

    Comment by Thomas Workman — August 10, 2003 @ 1:04 pm

  2. Your references to the FTC v Superior Court Lawyers miss the major issue in that case, that being that in the Washington DC case, essentially all of the attorneys on the CJA list met, voted, and signed a document stating that they would not return to work until their pay was raised. The US Supreme Court evaluated and decided the case as a “price fixing” case. Massachusetts attorneys have not met, havew not signed any manifesto, are not acting as a ujnified body, and are not attempting to effect wages they are aid (they have brought a lawsuit that alledges that wages are Constitutionally inadequate).

    Ironically, prices are being “fixed” by a single entity that controls some 90% of the market. That entity is the government. But only as to attorneys who practice criminal law (civil attorneys are allowed to “bid” for work, at market rates). Civil attorneys are likely to be paid ten times what a criminal attorney is paid, and in every case written about in the recent Mass Lawyers article, they will be paid more for the simplist of civil work than an attorney of 25 years will be paid to try a first degree murder.

    Bar Advocates are not allowed to form a union, in that they are not employees. Working conditions and pay are the worst in the judicial system, but why should that surprise anyone?

    Most attorneys will tell you that they will not undertake new work for a client if that client refuses to pay them for work already performed. On Friday, July 18th, the Commonwealth abruptly informed attorneys that there was no money left, and that they would not be paid FOR WORK ALREADY DONE. It is no coincidence that the refusal to take cases began the next week.

    Taking new cases presents a serious ethical problem for attorneys. Once an attorney takes a case, he cannot simply drop the case without leave of court, leave that is expected to get harder to obtain with time.

    Most “experts” who work for indigent clients have not been paid since April 2003, and most of them will not take cases until they ave been paid for work already done. The term “experts” includes private investigators, doctors, and anyone who would assist in the defense of a case. If the case I am about to accept needs an expert to properly defend the client, a bar advocate may be unable to mount a proper defense, if an expert is needed.

    The FY04 budget only funds bar advocate attorneys through about April 2004, and Romney has said that there will be no supplemetal budget. If the legislature will not pass a supplemental budget before the end of the last session to pay for work already done, why does anyone think they will do so this next year?

    CPCS has a policy that you cannot get paid for a case until the end of the case, or the end of the fiscal year. They could easilly change this, since the attorneys now do all of the data entry on the case (a recent change that added about 10% to the time an attorney spends on a case, time that the attorney is NOT compensated for).

    The ethical problem that the budget and the CPCS compensation timing policy presents is as follows: a defendant is arraigned and an attorney is appointed to represent him. The attorney evaluates the case, investigates defenses, and discovers that there are motions to suppress and time consuming legal work necessary to defend the client. If the attorney undertakes the work to zealously defend the client, and in doing so the case extends past April of 2004, the attorney is virtually guaranteeing that he will not be paid a dime on the case (the attorney is not allowed to bill until year end or case closed, at which time there will be no money left to pay him).

    The attorney in the above situation does have an alternative, and that is to plea the client out at an early proceeding, and thereby get paid.

    The attorney faces an ethical problem. Zealously advocate for the client, and not get paid; or ineffectively advocate for the client, and get paid. Faced with that choice, many attorneys are refusing to accept new cases, for fear that they will have to make that choice.

    Had the facts in FTC v Superior Court Lawyers Association shown that attorneys acted in concert to avoid new cases because the government had not paid them for work already performed, and that new cases that they accepted would not be compensated unless the defendants promptly plead guilty — I suggest the result might have been very different.

    As an aside, if you know how to contact all of the bar advocates in the state, counsel fo the wages lawsuit would appreciate your advice. While all attorneys must access the CPCS billing website, and while we have requested that CPCS collect an email address for all billing attorneys — CPCS has flatly refused. There are 13 bar advocate non-profit corporations, and only some of them maintain email distribution lists. Most bar advocates cannot afford a subscription to Lawyers Weekly, and there is no other printed news that is distributed statewide.

    I ask the above question because the bar advocate pay lawsuit includes a motion to certify the class, and communicating with the class will be an important task in the months ahead.

    Comment by Thomas Workman — August 10, 2003 @ 1:04 pm

  3. Thank you for your thoughtful response.   I hope you realize that I sympathize with your goal of receiving reasonable pay for your services.  As I chose to do court-appointed law guardian work in NYS – as my entire law practice — for several years in the mid-90s ($25 out of ourt/ $40 in court), I can relate to being underpaid and underappreciated.   In other years, I also had appointed criminal appellate cases where I where I received payment for less than half of my hours, because of a $800 total limit.
    Nonetheless, the factual differences between the Massachusetts bar advocates and the D.C. “5th Street” lawyers do not negate the general principles applied there, nor the possible liability for the bar advocates – IF they jointly refuse to take cases.  You do not have to get together like conspirators in a room to decide, or sign a petition to have acted jointly (in concert) under the antitrust laws.  I say that after a decade practicing antitrust law at the FTC (mostly with regard to professional associations — doctors and lawyers), and teaching Antitrust as an adjunct professor. 
    Of course, I can’t know all the facts.  But, I can say that the nature of the “job actions” by the Mass. bar advocates – simultaneous, with publicity, in the context of prior joint action and talk of a “planned work stoppage” in the fall – smacks of joint, concerted activity.
    No matter what industry you’re in and no matter how much power the “buyer” has, concertedly refusing to deal, in order to be paid sooner, is an unlawful restraint of trade.   In any one situation, proving the joint activity may be difficult, and the defendants sympathetic, but the liability is still there. 

    Comment by David Giacalone — August 10, 2003 @ 4:35 pm

  4. Thank you for your thoughtful response.   I hope you realize that I sympathize with your goal of receiving reasonable pay for your services.  As I chose to do court-appointed law guardian work in NYS – as my entire law practice — for several years in the mid-90s ($25 out of ourt/ $40 in court), I can relate to being underpaid and underappreciated.   In other years, I also had appointed criminal appellate cases where I where I received payment for less than half of my hours, because of a $800 total limit.
    Nonetheless, the factual differences between the Massachusetts bar advocates and the D.C. “5th Street” lawyers do not negate the general principles applied there, nor the possible liability for the bar advocates – IF they jointly refuse to take cases.  You do not have to get together like conspirators in a room to decide, or sign a petition to have acted jointly (in concert) under the antitrust laws.  I say that after a decade practicing antitrust law at the FTC (mostly with regard to professional associations — doctors and lawyers), and teaching Antitrust as an adjunct professor. 
    Of course, I can’t know all the facts.  But, I can say that the nature of the “job actions” by the Mass. bar advocates – simultaneous, with publicity, in the context of prior joint action and talk of a “planned work stoppage” in the fall – smacks of joint, concerted activity.
    No matter what industry you’re in and no matter how much power the “buyer” has, concertedly refusing to deal, in order to be paid sooner, is an unlawful restraint of trade.   In any one situation, proving the joint activity may be difficult, and the defendants sympathetic, but the liability is still there. 

    Comment by David Giacalone — August 10, 2003 @ 4:35 pm

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