f/k/a archives . . . real opinions & real haiku

The stakes have been raised considerably in the battle of Massachusetts “bar advocates” to be paid for work performed in Fiscal Year ’03.  In an August 14, 2003, Press Release, the non-profit Suffolk Lawyers for Justice, Inc., announced that its members would no longer accept new court-appointed cases as of Monday, August 18, 2003.   [See today’s Taunton Gazette article, 8/15/03, by Scott Dolan, which headlines that the action “could paralyze the justice system in the state’s capital”]

The SLJ Press Release states: 

“Collectively, the 335 lawyers who comprise Suffolk Lawyers for Justice are owed for many months of work performed this past fiscal year, and they overwhelmingly have voiced their intention to decline new cases until they are paid for that work.”

ethicalEsq? has addressed the “strike” by Massachusetts Bar Advocates –private attorneys who take court-appointed cases for indigents — several times, most recently in a posting on July 31, 2003, which (clearly unsuccessfully) asked the Bay State lawyers to stop their joint boycott.   The posting, which contains numerous links to relevant materials, argues that the concerted refusal to accept new clients is very likely to violate the antitrust law, as well as injuring clients.  

On August 10th, bar advocate Thomas Workman posted Comments at this site in which he presents the financial-equities case of his colleagues, and pointed out that they have not made any joint strike manifestos.  Your Editor’s response can be found following that string.

Earlier this week, the Taunton Gazette reported (August 12th) that matters in Bristol County were getting ugly, after lawyers were told that the Massachusetts Legislature would not be taking up the supplemental budget until September or October.   The Taunton Gazette states (emphasis added):

• So far, the strike has forced judges in Taunton District Court to release at least two accused criminals to the streets because no lawyers would represent them when prosecutors asked for them to be held on bail.
  
  “I feel it’s time we stand together and do not take cases until at least we get a supplemental budget passed,” [attorney Michelle L.] Rioux told the crowd of lawyers.
  
  Another attorney, Dana A. Sargent of New Bedford, said, “There are a little group of spoilers, four or five people, who are still taking cases — eating our lunches so to speak.”
  
  One lawyer, James McKenna of North Attleboro, spoke vehemently against the strike and said lawyers in Attleboro District Court are still accepting cases.  McKenna said he has heard attorneys in his home court call the strike a “fatal approach” and argued that the state traditionally underfunds CPCS until late in the year.

Apparently, some bar advocates are now willing to use coercive peer pressure to keep their “strike” from breaking down.   Such policing of members to increase pressure on their “buyer” is a hallmark of the classic unlawful antitrust boycott.  

The Legislature needs to make representation of the indigent a top priority — which means adequate and timely payment for lawyers who handle the cases.  However, this joint refusal to deal s not only irresponsible and unlawful, it may very well prove counterproductive for the Bar Advocates of Boston.   With the tax paypayer and voter as their ultimate paymaster, Bar Advocates should be improving their image and their public relations skills, not using strongarm tactics and indirectly causing defendants to be sent back on the streets.  Lawyer McKenna might indeed be correct in suggesting that a strike could be a “fatal approach” to a problem that will surely be resolved when the Massachusetts Legislature returns in the Fall.

• Bristol County Bar Advocates have a Press Coverage Page on their website, which is updated regularly as events happen.

Update (8/16/03) See our posting on 8/16/03 concerning predictions of havoc in Boston courts on Monday, Aug. 18, 2003.

The ABA seems to have confused professionalism and paternalism (maternalism? “parentalism”?) this past week.  Strangely, it stresses the protective, parental role in the setting where it is probably least needed –adopting rules concerning the Definition of the Practice of Law.  And, it deemphasizes the protective role precisely where it is most appropriate — when the client is actually a minor.   

As noted in the ABA Daily Journal list of actions taken at the 2003 Annual Meeting this week, Report No. 100 concerning the Definition of the Practice of Law (at p. 3, and 18) and Report No. 116B concerning Standards of Practice in Child Custody Cases (at 10) were both approved by the House of Delegates and are now official ABA policy.

The Child Custody proposal was discussed at length here in a posting on August 7, 2003.  The new set of Standards is premised on the tautological doctrine that a child’s “lawyer remains a lawyer” no matter what role he or she plays in a custody case.   The Standards place restrictions on the role of a lawyer never before required when the client is a child — based on a covert and confabulated ideology of children’s rights.  This Editor continues to believe that the most important right of the child client is the right to be protected and guided by the mature judgment of his or her attorney.   Yep, that’s paternalism and it’s OK even if not PC. 

The issues concerning the Definition of the Practice of Law (and UPL) have been discussed in several postings, the last of which was on July 27, 2003, which contains links to many relevant sources.  

• 
  
  The adopted resolution holds that “every jurisdiction adopt a definition of the practice of law” and that “each jurisdiction’s definition should include the basic premise that the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity.”
  
  
• In addition, the resolution recommends that each jurisdiction “determine who may provide services” within the definition and under what circumstances.   I continue to believe that this entire Definition Movement has more to do with protecting lawyer turf from competitors than protecting clients — and that is despite the inclusion in the Task Force’s Recommendation and Report (at the request of agencies such as the FTC and the DOJ, and of consumer advocates) that the definition be “based upon the potential harm and benefit to the public.”

Beyond the Report’s extensive discussion of creating new regulatory apparatus to oversee nonlawyer providers of legal services, I am concerned over the tone emphasized in the very last sentence of the March 2003 Task Force Report:

“Since protection of the public is a paramount goal of the legal profession and of the justice system it serves, the regulatory process should enforce accountability by all who provide services within the definition of the practice of law.”  (emphasis added)

Focusing on the profession’s paternalist “protective” role is a sure recipe for drafting a definition of the practice of law that is overbroad, while unnecessarily limiting the types of nonlawyer providers that are permitted, and saddling them with overly burdensome entry barriers and oversight.

Self-appointed Protectors (of competent adults) often go too far.  They tend to shelter their “wards” from outside interests and new opportunities and risks.   Frequently, they think of themselves as “entitled” to special perks and rewards as recompense for their special heroic efforts.

In the Third Millennium, as opposed to the Middle Ages, it is about time that lawyers remember that they are “attorneys” for their clients — agents who serve their principals, assisting them, promoting their interests, performing as honest fiduciaries.  “Protection” can certainly be a part of the attorney role, but it is often a small part. 

In defining the practice of law and reaches of UPL, the legal profession needs to respect the right of the client (or potential client) to make his or her own cost-benefit analysis when choosing among options in the marketplace for legal services.  In fact, the profession should actually help consumers make intelligent choices, instead of providing them with one-side propaganda and fear-mongering (such as this recent publication of the New York State Bar Association, entitled “The Attorney’s Role in Buying or Selling a House.”)

The ABA has posted a Daily Journal showing the action taken on each of the Proposals taken up over the past week at its 2003 Annual Meeting.  Find out how projects you loved or hated fared.   (Note: This posting sets a record for ethicalEsq? brevity.  Could the ABA have left me speechless?)