f/k/a . . . the archives

Court-appointed lawyers for indigents in Massachusetts are “crying foul” over fees not paid by the State, but they have started a “job action” that could easily run afoul of antitrust law. According to an article yesterday in The Standard-Times (New Bedford, MA) (“Lawyers for poor cry foul,” by David Kibbe, Ottaway News Service, July 25, 2003) (pointed to by Jurist’s Paperchase, 7/26/03):

In protest, bar advocates have started a “job action”, that reporter Kibbe writes is expected to sweep the state in coming days. He explains that “dozens of private lawyers in Bristol and Plymouth counties this week began refusing to accept new cases involving indigent clients” — a move that “threatens to overwhelm the state courts with thousands of poor defendants without lawyers to represent them.  It has triggered a flurry of phone calls and meetings between court officials and state legislators.”

Michele L. Rioux, a bar advocate who is the president of the New Bedford Bar Association, told the reporter that “We’re not whining.  We chose to do this line of work. It’s the indigent people of the commonwealth who are going to suffer because fewer and fewer attorneys are going to be able to do this work because of this rate of pay.”    Although the first half of my legal career was spent as an antitrust lawyer at the FTC, by the mid-90s, my entire law practice consisted in representation of children in Family Courts in similar appointed cases.  So I can well understand and remember how important receiving those State checks can be. [See my posting of 6/02/03, praising the fee increase for court-appointed lawyers in NYS.]

Although the MA bar advocates might not be whining, they do appear to be engaged in joint action among otherwise independent providers of legal services — to wit, a concerted  refusal to deal by competitors.  If a court or agency deems the bar advocate “job action” to be a conspiracy in restraint of trade, it will almost certainly be treated as a per se violation of the antitrust law.  For example, in 1990, the U.S. Supreme Court applied the per se antitrust rule against boycotts and price fixing conspiracies to a group of court-appointed lawyers for the indigent, in FTC v. Sup. Ct. Trial Lawyers Ass’n, 493 U.S. 411.  There was no question in SCTLA that antitrust applies to the legal profession and to the “strike” by court-appointed counsel, despite arguments by the defendants that they were protecting clients’ rights to quality legal services and exercising First Amendment rights.

The legal profession needs to start nurturing mentors — preparing experienced lawyers to serve as mentors for attorneys new to the law or to a particular job or specialty. An article featured in today’s ABA Journal focuses on mentoring, and even asks whether it should be made mandatory to bridge the gap between law school and real practice — “Apprentice Attorneys: In Vermont, Months of Mentoring Supplement New Lawyers’ Training,” by Margaret Graham Tebo (July 25, 2003).

[from Jack Cliente:] I’m typing this quickly, while Mr. Editor is listening to The Sinister Pig, Tony Hillerman’s latest audiobook. Let’s be frank, the worries mentioned in today’s article from the ABA eJournal – about “Problems Ahead” for blogging lawyers — are just plain silly (July 25, 2003, written by Stephanie Francis Ward).
Like Howard, and Denise, and Steven [in SWVirginia] “we” over here at ethicalEsq have a lot more faith in clients than does the average uptight lawyer (is that redundant?).
Attempts to stifle blogging attorneys are far more likely to come from paranoid partners, thin-skinned judges, and butt-covering bureaucrats than from actual breathing and thinking clients.  If a lawyer doesn’t have the good judgment it takes to have both a personality and an opinion online, while keeping clients happy, he or she should stay away from blogging, and maybe from lawyering.  Of course, being in retired status, our Editor feels no chilling effects in any case (at least not when he’s under his blankie).

P.S. from the Editor: It’s strange. Lawyers often seem to think they have to appear very bland or very offensive to be successful. My law school went out of its way to attract interesting students — from a former POW and a topless go-go dancer, to pop idols and pimply boy geniuses. Yet, by midway through the first semester, no one talked about anything other than law and law school gossip (and, sometimes, spectator sports). Even while in practice, my survival response to “Do you want to have lunch?” was always “Not if you’re talking law.” Blogging lets us all have a personality and a professional persona, while focusing on topics of interest and expertise. We can’t let the bean counters and worrywarts shut us down.

I’ve been an opinionated blogger for 8 weeks now and a few things are already clear about me and blogging:

Recent FTC signals, including Hill testimony today (July 24, 2003) by Chairman Timothy J. Muris, suggest that the Commission will continue to focus resources to help prevent or stop professional rules of conduct that stifle competition or unnecessarily limit consumer choice.

One of the two examples given was the release on January 24, 2003, of two ethics opinions by the North Carolina State Bar. [discussed in our 7/3/03 posting ]  Muris noted that the opinions eliminate the requirement that an attorney be physically present at real estate closings, and allow non-attorneys to obtain signatures and receive and disburse funds at closings, which were recommendations made in joint comments with the DOJ in December 2002.

Joe Simons, the head of the FTC Bureau of Competition, also recently emphasized the importance of advocacy activities relating to the professions, with most examples relating to the legal profession. Addressing the Annual Spring Meeting of the ABA’s Antitrust Section, Director Simons asserted:

Use of Nonenforcement Tools Congress provided the FTC with a unique collection of capabilities to address competition-related policy issues.  These capabilities include expansive power to conduct studies or perform research about the economy and a broad charter to act as an advocate for competition before other government bodies, in addition to the authority to initiate administrative and federal court litigation. We make full use of these capabilities in pursuing a multi-dimensional approach in pursuing our mission.   As with our merger and nonmerger enforcement work, we apply our nonenforcement tools to those sectors of the economy that have the greatest impact on consumers. . . .

Professions In many regulated professions, regulatory bodies and groups of practitioners regularly attempt to restrict advertising and prevent competition from those outside the profession.  These restrictions result in higher prices, less information, and fewer choices for consumers. When it is not feasible to use our enforcement authority to challenge competitive restraints in the professions, we seek to persuade policymakers of the benefits of competition. Most recently, we and the Department of Justice’s Antitrust Division submitted a joint letter to the ABA urging it to substantially narrow or reject a proposed model definition of the practice of law, which would likely reduce or eliminate competition from non-lawyers in providing certain services. Previously, we submitted a joint letter with the Antitrust Division urging the North Carolina State Bar to approve a proposed opinion that would explicitly permit non-lawyers to compete in real estate and mortgage closing services.  In other advocacy work during the past year, we: provided staff comments to the Alabama Supreme Court on attorney advertising rules, urging that any restrictions should be narrowly tailored to prevent unfair or deceptive acts or practices, and that the rules permit communication of truthful and non-deceptive information, and filed an amicus brief in a case seeking to overturn an Oklahoma law that permits only funeral directors to sell caskets.  (emphasis added)

Today’s edition of Legal Week (UK) reports that “The Government has recruited an industry figure to hold a wide-ranging inquiry into the regulation of the legal profession in a move that could see the Law Society stripped of its regulatory powers.” The official announcement of the investigation, which may take 18 months, is expected to be made today by the Department of Constitutional Affairs (DCA).

There’s an article posted today on the ABA Journal webpage that is destined to be hanging in a lot of law firm snack rooms.  It’s called Working Together 101: Lawyers May Have the Degree, But They Can Take a Lesson From Support Staff (dated July 24, 2003, by Stephanie Francis Ward, from the July edition of ABA Journal ).

Blogger Larry Sullivan over at the Delaware Law Office writes passionately this morning in a piece captioned Aren’t There At Least Two Trial Lawyers Per Trial?. Larry decries President Bush’s “name calling” over trial lawyers, while calling the President’s tactics “slimy” and “school yard posturing.”

I can’t believe that I’m defending George W. Bush, or that I’m spending time worrying about lawyer civility.  However, I have to point out that it is the plaintiffs’ tort, personal injury and 1st Amendment bar itself that has appropriated the term “trial lawyer,” and worked hard to differentiate ”trial lawyers” from the pro-corporate “defense bar.”   For example, take a look at the  website of the Association of Trial Lawyers of America, including ATLA’s Action Network and Proud to Be a Lawyer page — where corporate and defense counsel are not exactly welcomed.

It hardly seems deceptive to call a group by the name it has given itself.  And it is not surprising or scandalous that a politician would use a catchword that whips up his own political supporters and magically opens their wallets — especially when it also has negative connotations for many people outside his party and social strata.

Of course, I agree when Larry says “But let us work together to improve the judicial system with reforms that really help all of the people, not just the special interest campaign contributors.” I just hope he realizes that both sides (“trial lawyers” and corporate interests) are actively and constantly using campaign contributions to gain special political favors, protection and power — all in the hope of achieving social and political goals, which just coincidentally bring them huge financial rewards.  As lawyers, we all need to take off the blinders of financial self-interest and partisan gain, in order to fulfill our professional and civic obligation to craft a better judicial and legal system.

Update (7/23/03): Larry Sullivan of the Delaware Law Office was kind enough to respond rapidly to my remarks above. Here are his comments and my reply (which is admittedly a bit preachy):

LDS: Hi David, Thank you for your comments. I was utilizing the term “slimy sort of politics” as a tongue-in-cheek example of the behavior of which I was objecting. And so I don’t think that your quote quite does my entry justice.

As to the remainder, I think we are basically in agreement. The indiscriminate slurring of our profession has a detrimental impact upon the respect for the justice system as a whole. I find that this interferes with clients’ ability to deal with the situations and advice that is presented to them. Even common jokes about lawyers have a deeper and insidious cumulative effect upon our reputation as a whole. And it is only the respect and reputation of the attorneys, the courts, and the judicial process which allow these elements to work for the people. I do realize that there are at least two sides to every debate. I take the third. I support the legitimacy of the process.

DAG: Thanks for the explanation and expansion on your thoughts, Larry. Personally, I have no problem with lawyer jokes and think the profession as a whole needs a better sense of humor, and needs to worry far less about its “dignity” and “reputation” and much more about living up to the high standards and goals that it purports to uphold. Then, its reputation will take care of itself.

Lawyers will earn the respect of society, not with public relations campaigns and civility seminars, but (1) client by client, performing with diligence and competence, informing them fully, and treating each with respect as the “king” we are serving and advising, not just the cow we’re milking; (2) socially and politically, by taking positions that advance the public good and help assure access by all to legal services, rather than acting like a cartel or guild protecting the interests of the profession; and (3) ethically, with far stricter discipline and adherence to Rules of Conduct, using a process that is more open and effective.

Update II (7/24/03):  The anonymous NC attorney who writes Business Law Weblog had some sharp and interesting words yesterday (7/23/03) on Larry Sullivan’s original posting about politics and “trial lawyers,” and was nice enough to point his visitors over to this site.

This morning’s National Law Journal contains a must-read article for anyone interested in the availability online of interactive divorcing services. Titled, Online Divorce Services Spark Debate: Lawyers, providers split over pitfalls, it is written by Dee McAree (07/22/03, available without fee, with registration for free daily newsletter).

For two examples of court-related, state-specific, interactive programs, see the domestic relations services offered by Arizona’s Maricopa County and by the State of Florida, which are discussed in our July 15th posting.   Until such programs are available nationwide to all divorcing couples, lawyers should not be trying to deprive consumers of the option to use for-profit computerized websites.   Instead, the profession should be working hard to help provide the funding and know-how needed to make high-quality, court-sponsored self-help centers available to all.

This morning’s National Law Journal contains a must-read article for anyone interested in the availability online of interactive divorcing services. Titled, Online Divorce Services Spark Debate: Lawyers, providers split over pitfalls, it is written by Dee McAree (07/22/03, available without fee, with registration for free daily newsletter)., it is written by Dee McAree (07/22/03, available without fee, with registration for free daily newsletter).The article has links to existing online services, along with quotes from proponents and opponents.   As McAree notes:

and by the State of

The current edition of GPSolo magazine focuses on Security and Ethics. (Vol. 20, No. 4, June 2003)  One intriguing article looks into the ethical and liability risks from not using new technology in one’s law practice.

The current edition of GPSolo magazine focuses on Security and Ethics. (Vol. 20, No. 4, June 2003)  One intriguing article looks into the ethical and liability risks from not using new technology in one’s law practice.

If you’re going to the ABA Annual Meeting in San Francisco in August, consider attending the panel on “Competition and Ethical Issues in the Unauthorized Practice of Law Debate,” presented by the Antitrust Section and held Aug. 11th (2:00 PM). Click here to see the Section’s full agenda.

The FTC and the Justice Department submitted a joint letter to the North Carolina State Bar (in late 2001) opposing a proposed ethics opinion that would have required attorneys to be present at all real estate closings.  Humphrey played a prominent role drafting a response to that letter, dated 12/14/01 (but I couldn’t find the letter online). He was also a member of the ABA Task Force on the Model Definition of the Practice of Law.   On Dec. 20, 2002, a joint FTC/DOJ letter was submitted to that ABA Task Force opposing attempts to restrict competition from nonlawyers through broad definitions of the “practice of law.” (Dec. 20, 2002).

We discussed these issues at length in our July 3, 2003 posting. and our July 1st posting.  The advocacy efforts of the federal agencies (along with a slew of other commentors) helped convince the ABA task force to withdraw the proposed model definition of the practice of law.   However, the agencies’ letter apparently had little effect on the resulting North Carolina ethics opinions, which were issued on Jan. 23, 2003. See Authorized Practice Advisory Opinion 2002-1.

For more background information on this topic, see the submission of Tom Lammert General Counsel, National Real Estate Information Services, to the FTC’s Public Workshop on the Possible Anticompetitive Efforts to Restrict Competition on the Internet (Oct., 2002), which is entitled State Regulation Impeding Competition on the Internet for Real Estate Settlement and Information Services.  Also check out the recent Legal Times article by HALT’s Executive Director, Jim Turner, Lawyers vs. Nonlawyers.

ethicalEsq?ethicalEsq?ethicalEsq?

Thanks to Steve Covell at La-Legal annotated  for adding us to his comprehensive Legal Beetle directory of “20,000″ law-related sites. 

If you’re going to the ABA Annual Meeting in San Francisco in August, consider attending the panel on “Competition and Ethical Issues in the Unauthorized Practice of Law Debate,” presented by the Antitrust Section and held Aug. 11th (2:00 PM). Click here to see the Section’s full agenda.

The FTC and the Justice Department submitted a joint letter to the North Carolina State Bar (in late 2001) opposing a proposed ethics opinion that would have required attorneys to be present at all real estate closings.  Humphrey played a prominent role drafting a response to that letter, dated 12/14/01 (but I couldn’t find the letter online). He was also a member of the ABA Task Force on the Model Definition of the Practice of Law.   On Dec. 20, 2002, a joint FTC/DOJ letter was submitted to that ABA Task Force opposing attempts to restrict competition from nonlawyers through broad definitions of the “practice of law.” (Dec. 20, 2002).

We discussed these issues at length in our July 3, 2003 posting. and our July 1st posting.  The advocacy efforts of the federal agencies (along with a slew of other commentors) helped convince the ABA task force to withdraw the proposed model definition of the practice of law.   However, the agencies’ letter apparently had little effect on the resulting North Carolina ethics opinions, which were issued on Jan. 23, 2003. See Authorized Practice Advisory Opinion 2002-1.

For more background information on this topic, see the submission of Tom Lammert General Counsel, National Real Estate Information Services, to the FTC’s Public Workshop on the Possible Anticompetitive Efforts to Restrict Competition on the Internet (Oct., 2002), which is entitled State Regulation Impeding Competition on the Internet for Real Estate Settlement and Information Services.  Also check out the recent Legal Times article by HALT’s Executive Director, Jim Turner, Lawyers vs. Nonlawyers.

ethicalEsq?ethicalEsq?ethicalEsq?

Thanks to Steve Covell at La-Legal annotated  for adding us to his comprehensive Legal Beetle directory of “20,000″ law-related sites.