f/k/a . . . the archives

August 23, 2003

Update: Governor and Boycotting Lawyers Trade Warnings

Filed under: pre-06-2006 — David Giacalone @ 6:16 pm

 






update: the saga continues: does Bar Advocate = Greedy Lawyer? (July 23, 2005)

 

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)

 

In an update to our Aug. 20th posting, ethicalEsq? did some warning of its own:


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.




  • Tom Workman and I have very different conclusions about the propriety of the boycott by Bar Advocates.   However, I much appreciate his willingness to make and share his reasoned opinions with me.  You can find more of our dialogue by using links on the ethicalEsq? ”Discussion” Page.

22 Comments

  1. I am not very knowledgeable about antitrust law. Does it make a difference to your analysis that the state in assigning cases appears to exercise all the price-fixing characteristics of a monopoly? Can a buyer act “in restraint of trade” just as much as a seller does?

    Comment by Bill Day — August 23, 2003 @ 11:03 pm

  2. I am not very knowledgeable about antitrust law. Does it make a difference to your analysis that the state in assigning cases appears to exercise all the price-fixing characteristics of a monopoly? Can a buyer act “in restraint of trade” just as much as a seller does?

    Comment by Bill Day — August 23, 2003 @ 11:03 pm

  3. Good question, Bill.    The Supreme Court made it clear Supreme Court decision in FTC v. Superior Court Trial Lawyers Association that the Government’s position as a large buyer of services cannot be used to justify a group boycott by the assigned counsel, who were sellers of the services. 
    The Supreme Court adopted the reasoning of the Appeals Court below:

    They are individual business people supplying the same service to a customer, and as such may be capable, through a concerted restriction on output, of forcing that customer to pay a higher price for their service.   That the D. C. government, like the buyers of many other services and commodities, prefers to offer a uniform price to all potential suppliers does not alter in any way the anti-competitive potential of the petitioners’ boycott. The antitrust laws do not protect only purchasers who negotiate each transaction individually, instead of posting a price at which they will trade with all who come forward. [493 U.S. 411, 423]  

    The SCTLA Court also adopted the FTC’s analysis:

    “`[T]he city’s purchase of CJA legal services for indigents is based on competition. The price offered by the city is based on competition, because the city must attract a sufficient number of individual lawyers to meet its needs at that price. The city competes with other purchasers of legal services to obtain an adequate supply of lawyers, and the city’s offering price is an element of that competition. Indeed, an acknowledgement of this element of competition is implicit in the respondents’ argument that an increase in the CJA fee was `necessary to attract, and retain, competent lawyers.’ If the offering price had not attracted a sufficient supply of qualified lawyers willing to accept CJA assignments for the city to fulfill its constitutional obligation, then presumably the city would have increased its offering price or otherwise sought to make its offer more attractive. In fact, however, the city’s offering price before the boycott apparently was sufficient to obtain the amount and quality of legal services that it needed.’” 272 U.S. App. D.C., at 278, 856 F.2d, at 232.

    Also, as a matter of economics, Massachusetts is nowhere near a monopsonist when it comes to buying legal services.  The total amount it spends for the assigned counsel services is a rather small fraction of the market for legal services in the State.  Just as independent doctors cannot use a group boycott to get a large HMO to increase its fees, lawyers in separate practices cannot conspire together to force a buyer to increase its fees.  See my posting at http://blogs.law.harvard.edu/ethicalesq/2003/08/17#194 for a fuller antitrust treatment. 

    Comment by David Giacalone — August 24, 2003 @ 12:42 am

  4. Good question, Bill.    The Supreme Court made it clear Supreme Court decision in FTC v. Superior Court Trial Lawyers Association that the Government’s position as a large buyer of services cannot be used to justify a group boycott by the assigned counsel, who were sellers of the services. 
    The Supreme Court adopted the reasoning of the Appeals Court below:

    They are individual business people supplying the same service to a customer, and as such may be capable, through a concerted restriction on output, of forcing that customer to pay a higher price for their service.   That the D. C. government, like the buyers of many other services and commodities, prefers to offer a uniform price to all potential suppliers does not alter in any way the anti-competitive potential of the petitioners’ boycott. The antitrust laws do not protect only purchasers who negotiate each transaction individually, instead of posting a price at which they will trade with all who come forward. [493 U.S. 411, 423]  

    The SCTLA Court also adopted the FTC’s analysis:

    “`[T]he city’s purchase of CJA legal services for indigents is based on competition. The price offered by the city is based on competition, because the city must attract a sufficient number of individual lawyers to meet its needs at that price. The city competes with other purchasers of legal services to obtain an adequate supply of lawyers, and the city’s offering price is an element of that competition. Indeed, an acknowledgement of this element of competition is implicit in the respondents’ argument that an increase in the CJA fee was `necessary to attract, and retain, competent lawyers.’ If the offering price had not attracted a sufficient supply of qualified lawyers willing to accept CJA assignments for the city to fulfill its constitutional obligation, then presumably the city would have increased its offering price or otherwise sought to make its offer more attractive. In fact, however, the city’s offering price before the boycott apparently was sufficient to obtain the amount and quality of legal services that it needed.’” 272 U.S. App. D.C., at 278, 856 F.2d, at 232.

    Also, as a matter of economics, Massachusetts is nowhere near a monopsonist when it comes to buying legal services.  The total amount it spends for the assigned counsel services is a rather small fraction of the market for legal services in the State.  Just as independent doctors cannot use a group boycott to get a large HMO to increase its fees, lawyers in separate practices cannot conspire together to force a buyer to increase its fees.  See my posting at http://blogs.law.harvard.edu/ethicalesq/2003/08/17#194 for a fuller antitrust treatment. 

    Comment by David Giacalone — August 24, 2003 @ 12:42 am

  5. Dear David:

    First, I suggeest that you review, in full, the background material available at http://www.bristolcpcs.org

    Then I suggest you review my listing in Martindale-Hubbel, and review the case Care and Protection of Vivian.

    If you are willing to do those background activities, in part to review my credentials, we can have a civil discourse.

    As a practical matter, the number of attorneys willing to work at the not-quite break even rate offered for all appointed work except murder cases, is declining each year, the numbers of cases per attorney is increasing, and the years of experience of the attorneys who take the cases is also declining.

    What this says is that the poor get second class service.

    In a way, I am swimming upstream. I already had ten years of practice and several years of family law experience and several reported decisions before I took my first appointment.

    In order to “break even” I use a home office, no staff (that is right — I do all my own word processing; a typing speed left over from working my way through law school as a transcriber makes this possible), and limit the percentage of appointments in my practice load.

    In fact, independent contractors who take legal work are treated worse then all other indpendent contractors by the Commonwealth of Massachusetts; check out G.L. 211D SEc. 12. NO other vendor is penalized on “timeliness” or denied interest when the state pays late.

    Further, by his veto, Romney has guarenteed that the arm of the state which is responsible for processing and authorizing payment – CPCS – will run out of funds by April 1, 2003 next year; CPCS has responsibility without authority, unlike most executive branch agencies.

    Still more – when a judge’s lobby faxes me an appoint ment to represent a child who is a legal orphan (their parents rights have been terminated, and their adoptive parents have returned them to the state), typically I represent these children for a MINIMUM of six years, and often ten or more years as the only source of independent protection against abuse by the state these kids have.

    A few judges know I feel so strongly about this that I seem to be the appointee of choice. I don’t take these cases out of “market forces”.

    Guess what. I take them because I actually care.

    Why should I be financially abused and treated as a second class citizen because of this? My appellate practice generates an average rate of $150.00 per hour. There are only so many hours in a day.

    Therefore, I lose $111 for every appointment I take to protect a child from the callous disregard of the state.

    I have found children the state lost.

    I have made sure that pacements worked, advocated for proper edudcation, etc. etc. etc.

    I have also had to refinance my home 5 times.

    Frankly, your argument sounds like the argument of a clueless rich white guy.

    I suggest you read an excellent book titled the Children of Wilder.

    The impact of the social experiement inaugerated under Clinto with the so called “Adoption and Safe Families Act” (ASFA) is nothing short of fascism, and as bad as the so-called Indian Child Placement Act. Creation of legal orphans will haunt this society as surely as AIDS.

    Deborah Sirotkin Butler, Esq.
    AmberPaw@aol.com
    781-641-9939 (office phone)
    19 Overlook Road
    Arlington, MA 02474

    CAll me anytime. I am NOT anonymous and I am not going away in the push for due process and equal rights for the poor and working class.

    Comment by Deborah Sirotkin Butler, Esq. — August 25, 2003 @ 8:41 pm

  6. Dear David:

    First, I suggeest that you review, in full, the background material available at http://www.bristolcpcs.org

    Then I suggest you review my listing in Martindale-Hubbel, and review the case Care and Protection of Vivian.

    If you are willing to do those background activities, in part to review my credentials, we can have a civil discourse.

    As a practical matter, the number of attorneys willing to work at the not-quite break even rate offered for all appointed work except murder cases, is declining each year, the numbers of cases per attorney is increasing, and the years of experience of the attorneys who take the cases is also declining.

    What this says is that the poor get second class service.

    In a way, I am swimming upstream. I already had ten years of practice and several years of family law experience and several reported decisions before I took my first appointment.

    In order to “break even” I use a home office, no staff (that is right — I do all my own word processing; a typing speed left over from working my way through law school as a transcriber makes this possible), and limit the percentage of appointments in my practice load.

    In fact, independent contractors who take legal work are treated worse then all other indpendent contractors by the Commonwealth of Massachusetts; check out G.L. 211D SEc. 12. NO other vendor is penalized on “timeliness” or denied interest when the state pays late.

    Further, by his veto, Romney has guarenteed that the arm of the state which is responsible for processing and authorizing payment – CPCS – will run out of funds by April 1, 2003 next year; CPCS has responsibility without authority, unlike most executive branch agencies.

    Still more – when a judge’s lobby faxes me an appoint ment to represent a child who is a legal orphan (their parents rights have been terminated, and their adoptive parents have returned them to the state), typically I represent these children for a MINIMUM of six years, and often ten or more years as the only source of independent protection against abuse by the state these kids have.

    A few judges know I feel so strongly about this that I seem to be the appointee of choice. I don’t take these cases out of “market forces”.

    Guess what. I take them because I actually care.

    Why should I be financially abused and treated as a second class citizen because of this? My appellate practice generates an average rate of $150.00 per hour. There are only so many hours in a day.

    Therefore, I lose $111 for every appointment I take to protect a child from the callous disregard of the state.

    I have found children the state lost.

    I have made sure that pacements worked, advocated for proper edudcation, etc. etc. etc.

    I have also had to refinance my home 5 times.

    Frankly, your argument sounds like the argument of a clueless rich white guy.

    I suggest you read an excellent book titled the Children of Wilder.

    The impact of the social experiement inaugerated under Clinto with the so called “Adoption and Safe Families Act” (ASFA) is nothing short of fascism, and as bad as the so-called Indian Child Placement Act. Creation of legal orphans will haunt this society as surely as AIDS.

    Deborah Sirotkin Butler, Esq.
    AmberPaw@aol.com
    781-641-9939 (office phone)
    19 Overlook Road
    Arlington, MA 02474

    CAll me anytime. I am NOT anonymous and I am not going away in the push for due process and equal rights for the poor and working class.

    Comment by Deborah Sirotkin Butler, Esq. — August 25, 2003 @ 8:41 pm

  7. I wish to correct two typos:

    CPCS will run out of funds, due to Romney’s vetos, approximately 4/1/04 (not 03), pretty obviously –

    And I forgo about $111.00 per HOUR when I take an appointment. I only take 1 in 4 of the private folk who want to hire me these days, due to my extreme concern about the impact of ASFA on DSS policy and the discrimination I see visited upon citizens of the commonwealth merely because they have trouble affording housing, and cannot afford private counsel…or happen to be legal orphans created by the state.

    Do feel free to call me at 781-641-9939 or to mail me at 19 Overlook Road, Arlington 02474 or to fax me at 781-641-3769. I do not know who your anonymous “straw man” was but I am while vulnerable to typos, most definitely NOT anonymous.

    Comment by Deborah Sirotkin Butler, Esq. — August 25, 2003 @ 9:18 pm

  8. I wish to correct two typos:

    CPCS will run out of funds, due to Romney’s vetos, approximately 4/1/04 (not 03), pretty obviously –

    And I forgo about $111.00 per HOUR when I take an appointment. I only take 1 in 4 of the private folk who want to hire me these days, due to my extreme concern about the impact of ASFA on DSS policy and the discrimination I see visited upon citizens of the commonwealth merely because they have trouble affording housing, and cannot afford private counsel…or happen to be legal orphans created by the state.

    Do feel free to call me at 781-641-9939 or to mail me at 19 Overlook Road, Arlington 02474 or to fax me at 781-641-3769. I do not know who your anonymous “straw man” was but I am while vulnerable to typos, most definitely NOT anonymous.

    Comment by Deborah Sirotkin Butler, Esq. — August 25, 2003 @ 9:18 pm

  9. Deborah, Thank you for taking the time to write at length.  I can tell that you care, and I hope we can have a civil conversation.   As I have said many times on this site, I strongly favor a significant increase in the assigned counsel rates in Massachusetts.  In fact, I have written twice to the Boston Globe, but my letters were not published.  This morning, I wrote to Gov. Romney asking him to find a way to increase bar advocate fees.   Where we differ is whether any group of lawyers can decide they are above the law and engage in a group boycott.   I say no.
    If it were not for this disagreement, I think we’d have a lot in common to talk about, especially our work for children.  I do not want to have a contest as to who is the bigger martyr, but before you dismiss me as a “clueless rich white guy,” please consider the following and perhaps let your colleagues know that I am not writing from an ivory tower: 

    [Note from the Editor:  I have decided to delete most of the personal history part of my response to Deborah from this thread, and instead send it to her directly.   After reading it again, I felt that it sounded too much like self-congratulation.  The most relevant portion notes, as I have said elsewhere, that (after a decade doing antitrust law in D.C.) I moved to NYS in 1988, in order to represent children in Family Court, and to establish a divorce mediation practice.  For the last decade of my practice (prior to retiring for health reasons), the vast majority of my work was as an assigned counsel for children, called a Law Guardian.  We worked for $25 out of court (where most of the hours were spent) and $40 in court. . . . . For the last 3 years of my practice, all of my work was as a court-assigned law guardian.  It was a choice, my choice.” 

    I have read a lot of the material on the Bristol County website, and have communicated by email with the “webmaster” Tom Workman several times at length.  Lawyers who take assigned work for the indigent from the Government do so knowing the risks and hassles, and knowing their own values and goals.  Each lawyer has to make the decision for himself or herself whether to contine taking cases.    They can lobby together, and educate the public together, but they cannot use the coercive tool of a group boycott.   
    Thanks again for writing and for caring about your clients.  s/David     

    Comment by David Giacalone — August 25, 2003 @ 9:36 pm

  10. Deborah, Thank you for taking the time to write at length.  I can tell that you care, and I hope we can have a civil conversation.   As I have said many times on this site, I strongly favor a significant increase in the assigned counsel rates in Massachusetts.  In fact, I have written twice to the Boston Globe, but my letters were not published.  This morning, I wrote to Gov. Romney asking him to find a way to increase bar advocate fees.   Where we differ is whether any group of lawyers can decide they are above the law and engage in a group boycott.   I say no.
    If it were not for this disagreement, I think we’d have a lot in common to talk about, especially our work for children.  I do not want to have a contest as to who is the bigger martyr, but before you dismiss me as a “clueless rich white guy,” please consider the following and perhaps let your colleagues know that I am not writing from an ivory tower: 

    [Note from the Editor:  I have decided to delete most of the personal history part of my response to Deborah from this thread, and instead send it to her directly.   After reading it again, I felt that it sounded too much like self-congratulation.  The most relevant portion notes, as I have said elsewhere, that (after a decade doing antitrust law in D.C.) I moved to NYS in 1988, in order to represent children in Family Court, and to establish a divorce mediation practice.  For the last decade of my practice (prior to retiring for health reasons), the vast majority of my work was as an assigned counsel for children, called a Law Guardian.  We worked for $25 out of court (where most of the hours were spent) and $40 in court. . . . . For the last 3 years of my practice, all of my work was as a court-assigned law guardian.  It was a choice, my choice.” 

    I have read a lot of the material on the Bristol County website, and have communicated by email with the “webmaster” Tom Workman several times at length.  Lawyers who take assigned work for the indigent from the Government do so knowing the risks and hassles, and knowing their own values and goals.  Each lawyer has to make the decision for himself or herself whether to contine taking cases.    They can lobby together, and educate the public together, but they cannot use the coercive tool of a group boycott.   
    Thanks again for writing and for caring about your clients.  s/David     

    Comment by David Giacalone — August 25, 2003 @ 9:36 pm

  11. David states in his most recent update:

    “The State is surely offering no more than it believes is necessary to obtain the desired amount of services.”

    This is just not the case. The state behaves just like any classical monopolist would behave. You first capture a significant enough piece of the marketplace so that you can unilaterally set rates, without regard for any free market influence. Then you exercise that market power to set rates in a fashion that could not exist in a free market environment.

    If you practice criminal law in the Commonwealth of Massachusetts, especially in the major felony cases, you have no choice but to capitulate to the state’s terms.

    The evil of a monopoly is that even if a specific person “opts out” (eg changes careers), the next participant is subjected to the same “illegal” monopolistic influence (I put “illegal” in quotes, because the state government seems to be immune from prosecution in these matters).

    The complaints of attorneys standing up (as they recently asked that the law be enforced, and that they be paid AS THE LAW REQUIRES within 30 days). I cannot for the life of me see how attorneys might be criticized for not extending credit (with no interest to be paid them, another little “special” provision of the way they are treated, different from every other “vendor”), when the law requires that they be paid, and states in plain language that attorneys are entitled to be paid in 30 days (MGL ch 211D sec 12).

    Like most successful monopolists, the first thing you do once you establish the monopoly is protect it, by making sure that no one can challenge you. The Commonwealth of Massachusetts has structured the whole system so that they get the same control over the attorneys as they would have if they were employees (the IRS factors would likely determine bar advocates to be employees, not contractors, IMHO), while offering no benefits and no ability to contract with the state.

    Like most monopolists, the terms are “take it or leave it”, and any contractual terms are adhesion terms in the most draconian form.

    Comment by Thomas Workman — August 26, 2003 @ 4:33 pm

  12. David states in his most recent update:

    “The State is surely offering no more than it believes is necessary to obtain the desired amount of services.”

    This is just not the case. The state behaves just like any classical monopolist would behave. You first capture a significant enough piece of the marketplace so that you can unilaterally set rates, without regard for any free market influence. Then you exercise that market power to set rates in a fashion that could not exist in a free market environment.

    If you practice criminal law in the Commonwealth of Massachusetts, especially in the major felony cases, you have no choice but to capitulate to the state’s terms.

    The evil of a monopoly is that even if a specific person “opts out” (eg changes careers), the next participant is subjected to the same “illegal” monopolistic influence (I put “illegal” in quotes, because the state government seems to be immune from prosecution in these matters).

    The complaints of attorneys standing up (as they recently asked that the law be enforced, and that they be paid AS THE LAW REQUIRES within 30 days). I cannot for the life of me see how attorneys might be criticized for not extending credit (with no interest to be paid them, another little “special” provision of the way they are treated, different from every other “vendor”), when the law requires that they be paid, and states in plain language that attorneys are entitled to be paid in 30 days (MGL ch 211D sec 12).

    Like most successful monopolists, the first thing you do once you establish the monopoly is protect it, by making sure that no one can challenge you. The Commonwealth of Massachusetts has structured the whole system so that they get the same control over the attorneys as they would have if they were employees (the IRS factors would likely determine bar advocates to be employees, not contractors, IMHO), while offering no benefits and no ability to contract with the state.

    Like most monopolists, the terms are “take it or leave it”, and any contractual terms are adhesion terms in the most draconian form.

    Comment by Thomas Workman — August 26, 2003 @ 4:33 pm

  13. Tom, I again thank you for taking the time to exchange views.  You are, however, making arguments that go to the equities and politics of the fee dispute, but not to the legality of the group boycott under the antitrust law. 
    (1) Whether you like it or not, under the antitrust law, a State can set whatever price it wants when it buys goods or services.   As you suggest, it has “sovereign immunity” under the antitrust law (It can even immunize private activity under the “State Action” doctirne when it clearly sets policy in an area and regulates it). 
    (2) You can call the State a monopolist or monopsonist, but under antitrust and economic analysis, it in reality — as the Supreme Court noted in SCTLA – has a relatively small part of the total market for legal services in the state.  You do not get to segment the market into legal specialties and subspecialties. 
    (3)  We both know that there is a great difference between assigned counsel and “employees.”   Having worked as both a government lawyer and as assigned counsel, I know the difference.   I’d love to see some legal precedent for your assertion about the IRS position.    In NYS, it is the local assigned counsel panel that is the primary opponent whenever the State or County tries to open a public defender office instead of relying on independent practitioners.  They want the work, even at the supposedly “below market” fees.   
    Are you ready to become a Massachusetts civil servant?   Until you are an employee of the state, you need to follow the antitrust law when joining into activities with your competitors.   You cite the 30-day invoice payment rule, but the fact that a buyer is breaking a law does not justify a group boycott against it by the sellers of the service.  Each seller has to decide whether to continue to do business with the buyer.  It happens everyday in the real world (firms choose to look elsewhere for their customers; they write off bad accounts; they offer different services, etc.).  Lawyers do not get a special immunity from the dynamics of supply and demand.  You complain that Massachusetts has too much buying power, but how big would the market for your services even be, if indigents had to pay for their own lawyers?  What would the fee level be for criminal defense counsel if 90% of their potential clients were indigents?  How many lawyers would have to switch to other specialties?
    You can say that is “unfair,” but every other profession and industry must abide by those rules and market forces.  Even the broadest industry exemption — the insurance exemption in the McCarran-Ferguson Act — specifically retains antitrust authority over boycotts, refusals to deal, and coercive conduct.   The Congress and the Courts have no sympathy for such conduct.
    (4) It is not unlawful to be a monopoly seller or buyer, and it never has been.  Talking about draconian terms of adhesion goes to the fairness of the contract, and on that issue you need to join together to lobby, not boycott, for better terms.   If the public truly wants to see higher fees for assigned counsel, the Legislature should be amenable. 
    I feel strongly about this, Tom, because I do not like any profession or industry acting as if it is above the law — even laws they do not like or that seem unfair.  I especially expect my profession and my colleagues to follow the law. 
     

    Comment by David Giacalone — August 26, 2003 @ 6:32 pm

  14. Tom, I again thank you for taking the time to exchange views.  You are, however, making arguments that go to the equities and politics of the fee dispute, but not to the legality of the group boycott under the antitrust law. 
    (1) Whether you like it or not, under the antitrust law, a State can set whatever price it wants when it buys goods or services.   As you suggest, it has “sovereign immunity” under the antitrust law (It can even immunize private activity under the “State Action” doctirne when it clearly sets policy in an area and regulates it). 
    (2) You can call the State a monopolist or monopsonist, but under antitrust and economic analysis, it in reality — as the Supreme Court noted in SCTLA – has a relatively small part of the total market for legal services in the state.  You do not get to segment the market into legal specialties and subspecialties. 
    (3)  We both know that there is a great difference between assigned counsel and “employees.”   Having worked as both a government lawyer and as assigned counsel, I know the difference.   I’d love to see some legal precedent for your assertion about the IRS position.    In NYS, it is the local assigned counsel panel that is the primary opponent whenever the State or County tries to open a public defender office instead of relying on independent practitioners.  They want the work, even at the supposedly “below market” fees.   
    Are you ready to become a Massachusetts civil servant?   Until you are an employee of the state, you need to follow the antitrust law when joining into activities with your competitors.   You cite the 30-day invoice payment rule, but the fact that a buyer is breaking a law does not justify a group boycott against it by the sellers of the service.  Each seller has to decide whether to continue to do business with the buyer.  It happens everyday in the real world (firms choose to look elsewhere for their customers; they write off bad accounts; they offer different services, etc.).  Lawyers do not get a special immunity from the dynamics of supply and demand.  You complain that Massachusetts has too much buying power, but how big would the market for your services even be, if indigents had to pay for their own lawyers?  What would the fee level be for criminal defense counsel if 90% of their potential clients were indigents?  How many lawyers would have to switch to other specialties?
    You can say that is “unfair,” but every other profession and industry must abide by those rules and market forces.  Even the broadest industry exemption — the insurance exemption in the McCarran-Ferguson Act — specifically retains antitrust authority over boycotts, refusals to deal, and coercive conduct.   The Congress and the Courts have no sympathy for such conduct.
    (4) It is not unlawful to be a monopoly seller or buyer, and it never has been.  Talking about draconian terms of adhesion goes to the fairness of the contract, and on that issue you need to join together to lobby, not boycott, for better terms.   If the public truly wants to see higher fees for assigned counsel, the Legislature should be amenable. 
    I feel strongly about this, Tom, because I do not like any profession or industry acting as if it is above the law — even laws they do not like or that seem unfair.  I especially expect my profession and my colleagues to follow the law. 
     

    Comment by David Giacalone — August 26, 2003 @ 6:32 pm

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