The Boston Globe reported yesterday that Massachusetts Governor Mitt Romney had approved a bill allowing back payments owed to lawyers for the poor, but “cautioned the attorneys against launching another protest like the one that disrupted some Suffolk County courts earlier this week.” The Globe article (With a warning, governor approves $15.4m for lawyers, by Kathleen Burge, Aug. 22, 2003) stated:
If further disruption occurs, Romney would support ”taking disciplinary steps against these attorneys,” said Shawn Feddeman, Romney’s spokeswoman. ”It’s a constitutional right for indigent defendants to have this counsel.”
In response, one co-chair of the boycott-leading Suffolk Lawyers for Justice, asserted ”That right, in my opinion, encompasses the right to competent and zealous representation and lawyers who are paid fairly for their services.” Meanwhile, the other co-chair warned of future joint action:
”This is a victory,” said John Salsberg, cochairman of Suffolk Lawyers for Justice. ”It may appear to be a small victory, but I think it may have much bigger ramifications in the future. . . . Lawyers who represent poor people are willing to get together and take a stand.”
As had the Taunton Gazette on Aug. 21 (after interviewing local members of the boycott who discussed the likelihood of a strike in the Spring), the weekly Boston Phoenix indicates that similar group action is anticipated: “Expect another showdown this time next year, with tempers likely getting even hotter — unless the state gets serious about a long-term solution.” (Aug. 22-28, 2003 edition, A short strike yields a short-term fix, by David S. Bernstein)
It’s always easier to use coercive tactics the second time — especially if they were successful. Even without being verbalized, the threat of a repeat hangs over the head of the target. Without firm disciplinary action against them for their group refusal to take new cases, the bar advocates of Massachusetts will become chronic bullies.
As indepenent service providers, and not employees, each defense counsel has the absolute right to decide on his or her own whether to continue taking cases as assigned counsel for the indigent. But, they have no legal or ethical right to jointly refuse to take cases (or threaten to stop) in order to pressure the State for higher or quicker pay. Fair ends do not justify unfair means.
SUPPLEMENT (08-23-03): I just had a Comment from an anonymous Massachusetts lawyer, concerning my Aug. 17 posting entitled “Why the Boston “Bar Advocate” Boycott is Unlawful.” It underscores my concern that assigned counsel will be using the threat of another group boycott to achieve their fee goals. Below is the Comment and my Response:
Anonymous MassAtty: What rubbish . . . Who needs to strike? Let’s see what Romney, Locke AND CPCS does when July 1, 2004 comes around and 2500 “Bar Advocates” don’t appear because they have opted-out or otherwise refused to sign contracts with their respective County Advocate Programs. How long will it take the Governor and CPCS to burn out the “pro-bonos” and other hot-shots who step into the breach? Hmm… now there’s an interesting “ethical” concern. Just how many cases does one take, involuntarily or otherwise, before one stumbles into malpractice? Will the appointing Judge indemnify the inexperienced or “drafted” lawyer who gets hammered by a civil jury? That’s what happened to Worcester Lawyer Edward Healy back in 1985 after he unwittingly tried to help out the presiding justice William Luby in a case involving an arraignment and mental health evaluation on a fellow named Ronald Wagenmann. Seems Luby needed counsel to stand-in, nobody was around, Healy said O.K.,and oops! I Guess it wasn’t sufficient enough representation for Wagenmann and a federal jury in Springfield that awarded Wagenmann 1.7 miilion in damages, $500K of which was against Healy.
Editor: Dear Anonymous MassAtty, “Rubbish” is a nice, pithy legal argument, but not particularly persuasive. Wishing away the antitrust laws won’t make them go away. Same thing for your ethical responsibilities to the judicial system and to clients.
As in many other states, Massachusetts assigned counsel have been complaining about low fees for years and yet still taking the assignments. As individuals, you have the absolute right to get off the panel or refuse new cases. But, the vast majority continue to take them, whether out of magnanimity or financial need, I cannot say. That’s how the marketplace works — you each decide if the terms offered are adequate for you to sell your services to the buyer. No matter what is said about the current rate being below market rates, so far, it appears that the State’s proffered price IS adequate to attract the necessary providers. Bar advocates can lobby for a fairer fee level and quicker payments, but they may not use a group boycott to pressure the State, in order to alter market forces. Most members of the bar can be expected to understand the difference and to act accordingly.
Predicting calamities that are caused by your own joint, coercive action is neither ethically responsible nor helpful to your cause. It is, however, a good way to get attention from federal and state antitrust authorities — and, hopefully, from your Bar Counsel. I continue to hope that the State raises your fees, but I hope it can happen without further harm to the rule of law and the public’s respect for lawyers.
SUPPLEMENT #2 (08-23-03): Bill Day asks the important question whether it matters that the State has so much power as a buyer of services. The short answer is “no,” but follow this thread, or click on the Comment link, for an explanation, including quotes from the Supreme Court’s decision in the SCTLA (the D.C. assigned counsel case from 1990), which is covered in depth in this post. It is clear that competitors may not use a group boycott against a buyer of their services to increase fees. And, note that as large of a buyer as Massachusetts may be, it is far from a monopsonist in the State, when it comes to the entire market for legal services.
Update (Aug. 26, 2003): Thomas Workman, Taunton, MA, attorney, and webmaster of the Bristol County Bar Advocates’ website, Thomas Workman has a letter to the editor in the Boston Globe (8-26-03) on the Poor Pay for Court-Appointed Lawyers, in which he points out that the defense lawyer is the lowest-paid person in the room for the time while waiting to be heard in court. Tom asks why police and court clerks can unioinize and bargain for wages, but assigned counsel cannot. He correctly answers:
“Because of the relationship that has been structured between the state and court-appointed attorneys, the lawyers are considered independent professional contractors. Under antitrust laws, contractors cannot organize or join a union.”
Tom opines that the State has structured the system that way to keep the attorney fees low. The State is surely offering no more than it believes is necessary to obtain the desired amount of services. But, I doubt that there are many lawyers on the assigned counsel panel who would give up there private law practices in order to become fulltime employees of the State, working as public defenders. They can’t have it both ways. If they want to be in private practice, they have the responsibility to obey the antitrust laws.
In a separate email to your Editor, Tom Workman also writes:
You and I are philosophically in extreme disagreement on the issue of the application of antitrust law. Some of the precedents upon which you rely are ripe for overturning, and clearly (in my mind) do not serve the purpose and intent of the antitrust (anti-monopoly) laws. In the area of criminal defense services, the state of Massachusetts is the classical monomolist, with 90% of the market, no greater bully has ever existed than the state.
There is nothing extreme about the antitrust precedent that I cite. It is good antitrust law and is sure to remain so. The bar advocates just don’t want it applied to themselves. The target’s market share is not relevant when competitors use a naked boycott. However, as the Supreme Court noted in SCTLA, it does not seem likely that there is a market for “criminal defense services” that is separate from other lawyer services. The bar advocates prove that when they say they will start doing other legal work if their demands are not met.
The fact that the Government may be a big buyer or seller of services does not allow competitors to use a group boycott against it to achieve better prices, or any other better terms (such as credit). For example, businesses could not jointly agree to boycott the U.S. Postal Service in order to lower some or all of its rates. Nor could food caterers in and around a small town with a large prison agree to boycott the prison until it offers to pay more for their catering services. Each independent businessman must decide for himself or herself whether to accept the Government’s proffered price. If bar advocates believe they have strong public support, they should mount a lawful publicity and lobbying campaign.
