Nice one, but what about der weg ? anywya, congrats from me.

Nice one, but what about der weg ? anywya, congrats from me.

A heap of wheat, says the Song of Songs
but I’ve never seen wheat in a pile :)
did you like it?

A heap of wheat, says the Song of Songs
but I’ve never seen wheat in a pile :)
did you like it?

The text was good, but i stil cant find the play ipdates. looking for it dude.

The text was good, but i stil cant find the play ipdates. looking for it dude.

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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. 
 

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. 
 

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.

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.

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     

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     

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.

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.