f/k/a . . .

• The bar advocates have signalled their willingness to take joint action again, if additional fee-related demands are not met (see our Aug. 23rd posting).  As argued at length by this Editor in prior postings, such concerted action constitutes both an antitrust violation (as a coercive group refusal to deal) and ethical misconduct (as, among other things, action prejudicial to the judicial process).  

• The tension between appearing to act unilaterally while organizing unified action can be seen on the site’s FAQs page, and on their newly-created Listserve, which describes its users as attorneys “organizing to be paid in a timely fashion by the state and to increase the hourly salaries.”

• Their fairness arguments and comparisons with assigned counsel in other states fail as an antitrust defense, but could be the foundation for building a strong, lawful, ethical and successful lobbying effort.       

“Many attorneys have evaluated the compensation and timing of that compensation, and concluded that they . . .  will ultimately be assigned clients who are now being “deferred”, and thus they see little downside in not accepting cases.

“In some courts, a handful of bar advocates are ‘filling in’ for days that were cancelled by their fellow bar advocates. . . .  When a bar advocate refuses to accept new cases, in order to force the Commonwealth to deal with the serious issues and mistreatment of bar advocates as a group, filling in is not a favor, but rather blunts the effectiveness of that attorney’s ’statement’, and the sacrifice of the cancelling duty attorney.

“Accepting a ‘fill in’ duty day to replace a member who refuses to accept assignments is not doing your fellow bar advocate any favor, in fact it often offends that bar advocate. There has been no “strike” vote, and in fact bar advocates are not allowed to organize. In courts where a substantial majority of the attorneys have reached a like mind, and are not accepting cases, the existence of a handful of ‘fill in’ advocates would seem to prolong bringing the matter to a prompt conclusion, and may be seen by your fellow bar advocates as profiting personally while damaging the effectiveness of a fellow bar advocate.”

• The bar advocates have signalled their willingness to take joint action again, if additional fee-related demands are not met (see our Aug. 23rd posting).  As argued at length by this Editor in prior postings, such concerted action constitutes both an antitrust violation (as a coercive group refusal to deal) and ethical misconduct (as, among other things, action prejudicial to the judicial process).  

• The tension between appearing to act unilaterally while organizing unified action can be seen on the site’s FAQs page, and on their newly-created Listserve, which describes its users as attorneys “organizing to be paid in a timely fashion by the state and to increase the hourly salaries.”

• Their fairness arguments and comparisons with assigned counsel in other states fail as an antitrust defense, but could be the foundation for building a strong, lawful, ethical and successful lobbying effort.       

“Many attorneys have evaluated the compensation and timing of that compensation, and concluded that they . . .  will ultimately be assigned clients who are now being “deferred”, and thus they see little downside in not accepting cases.

“In some courts, a handful of bar advocates are ‘filling in’ for days that were cancelled by their fellow bar advocates. . . .  When a bar advocate refuses to accept new cases, in order to force the Commonwealth to deal with the serious issues and mistreatment of bar advocates as a group, filling in is not a favor, but rather blunts the effectiveness of that attorney’s ’statement’, and the sacrifice of the cancelling duty attorney.

“Accepting a ‘fill in’ duty day to replace a member who refuses to accept assignments is not doing your fellow bar advocate any favor, in fact it often offends that bar advocate. There has been no “strike” vote, and in fact bar advocates are not allowed to organize. In courts where a substantial majority of the attorneys have reached a like mind, and are not accepting cases, the existence of a handful of ‘fill in’ advocates would seem to prolong bringing the matter to a prompt conclusion, and may be seen by your fellow bar advocates as profiting personally while damaging the effectiveness of a fellow bar advocate.”

“The victims . . . can be private parties or government entities, whether federal, state, or local.”

 

“The agreement must be between two or more independent business entities or individuals. No overt acts need be proved, nor is an express agreement necessary. The offense can be established either by direct evidence from a participant or by circumstantial evidence.”

 

“Price fixing is an agreement among competitors at any level of the economy (manufacturers, distributors, or retailers) to raise, fix, or otherwise maintain the price at which their products or services are sold.   Price fixing can take many forms . . .  Price fixing is any agreement among competitors which affects the ultimate price or terms of sale for a product or service.  (emphasis added) 

“Because of their pernicious effect on competition and lack of any redeeming economic value, per se agreements, like price fixing, bid rigging, and market allocation, are conclusively presumed to be unreasonable and therefore illegal, without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. If a per se violation is shown, defendants cannot offer any evidence to demonstrate the reasonableness or the alleged necessity of the challenged conduct.”

        3] A recent Advisory Opinion (Feb. 6, 2003) from the Staff of the FTC’s Bureau of Competition to a group of Dayton, Ohio, physicians analyzes many of the issues that are raised when a group of professionals that are in competition in the provision of services get together to educate and lobby for increased compensation.  Their situation has many similarities to the efforts of the Massachusetts assigned counsel:

[PriMed] intends to create with other Dayton-area physicians an advocacy group to undertake “a campaign to inform and educate the general public” about, in the physicians’ opinion, the “ill effects and other consequences of the policies and procedures, including depressed reimbursement, by third party payers in Dayton.” The organization will be open to all Dayton physicians and thus may contain a majority of the area’s practicing physicians.

You informed us that two health plans in Dayton - each having at least 250,000 enrollees - cover a majority of the city’s insured population. Some Dayton physicians believe that these health plans have market power in Dayton that enables them to under-compensate Dayton physicians relative to physicians in comparable cities where the plans also do business. You assert that this alleged discrepancy in payments for services rendered to insureds, as well as other health plan policies and practices, disadvantages Dayton physicians and their patients. Among other things, you contend that health plan payments in Dayton are such that recruitment and retention of physicians is particularly difficult.

The FTC Staff Advisory Opinion goes on to give a very useful analysis.  Three excerpts are worth emphasizing here:

“Injury to competition and consumers would result if the proposed exchange of information facilitated an agreement among Dayton area physicians on prices to demand of health plans or an agreement to refuse to deal with health plans except on agreed terms.”

“The advocacy group intends to apply certain rules to prevent the development of anticompetitive physician conduct. It will not negotiate with health plans on behalf of member physicians. It also will not publish or share information that would be “conclusory or suggestive as to how an individual physician or physician group should deal with a third party issue or suggest how any physician will deal with any individual issues,” and will prohibit members from sharing among themselves information about their negotiations with any health plan. The occurrence of any of these activities, of course, would present very serious antitrust concern.”

CONCLUSION: “If the advocacy group undertakes the proposed activities in the manner you have described and consistent with the antitrust principles discussed above, then its operation does not appear likely to have anticompetitive effects and to violate the antitrust laws. Indeed, if the venture helps inform patients, employers, and payers, as well as physicians, about the operation of the Dayton health care market, while avoiding anticompetitive conduct, then its effect may be procompetitive. Accordingly, the Commission staff has no present intention to recommend enforcement action. If the physicians use the organization or its activities as a vehicle for collective action that unreasonably limits physician competition, however, then both the group and its members may be subject to such action.”

Because the Massachusetts lawyers have only recently engaged in a joint boycott and some have threatened future joint action, they need to be particularly squeaky clean when jointly addressing compensation issues.  [update Aug. 11, 2004: See Assigned Counsel Don't's & Do's, based on the FTC's Clark County (WA) Decision and Order]

“The victims . . . can be private parties or government entities, whether federal, state, or local.”

 

“The agreement must be between two or more independent business entities or individuals. No overt acts need be proved, nor is an express agreement necessary. The offense can be established either by direct evidence from a participant or by circumstantial evidence.”

 

“Price fixing is an agreement among competitors at any level of the economy (manufacturers, distributors, or retailers) to raise, fix, or otherwise maintain the price at which their products or services are sold.   Price fixing can take many forms . . .  Price fixing is any agreement among competitors which affects the ultimate price or terms of sale for a product or service.  (emphasis added) 

“Because of their pernicious effect on competition and lack of any redeeming economic value, per se agreements, like price fixing, bid rigging, and market allocation, are conclusively presumed to be unreasonable and therefore illegal, without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. If a per se violation is shown, defendants cannot offer any evidence to demonstrate the reasonableness or the alleged necessity of the challenged conduct.”

        3] A recent Advisory Opinion (Feb. 6, 2003) from the Staff of the FTC’s Bureau of Competition to a group of Dayton, Ohio, physicians analyzes many of the issues that are raised when a group of professionals that are in competition in the provision of services get together to educate and lobby for increased compensation.  Their situation has many similarities to the efforts of the Massachusetts assigned counsel:

[PriMed] intends to create with other Dayton-area physicians an advocacy group to undertake “a campaign to inform and educate the general public” about, in the physicians’ opinion, the “ill effects and other consequences of the policies and procedures, including depressed reimbursement, by third party payers in Dayton.” The organization will be open to all Dayton physicians and thus may contain a majority of the area’s practicing physicians.

You informed us that two health plans in Dayton - each having at least 250,000 enrollees - cover a majority of the city’s insured population. Some Dayton physicians believe that these health plans have market power in Dayton that enables them to under-compensate Dayton physicians relative to physicians in comparable cities where the plans also do business. You assert that this alleged discrepancy in payments for services rendered to insureds, as well as other health plan policies and practices, disadvantages Dayton physicians and their patients. Among other things, you contend that health plan payments in Dayton are such that recruitment and retention of physicians is particularly difficult.

The FTC Staff Advisory Opinion goes on to give a very useful analysis.  Three excerpts are worth emphasizing here:

“Injury to competition and consumers would result if the proposed exchange of information facilitated an agreement among Dayton area physicians on prices to demand of health plans or an agreement to refuse to deal with health plans except on agreed terms.”

“The advocacy group intends to apply certain rules to prevent the development of anticompetitive physician conduct. It will not negotiate with health plans on behalf of member physicians. It also will not publish or share information that would be “conclusory or suggestive as to how an individual physician or physician group should deal with a third party issue or suggest how any physician will deal with any individual issues,” and will prohibit members from sharing among themselves information about their negotiations with any health plan. The occurrence of any of these activities, of course, would present very serious antitrust concern.”

CONCLUSION: “If the advocacy group undertakes the proposed activities in the manner you have described and consistent with the antitrust principles discussed above, then its operation does not appear likely to have anticompetitive effects and to violate the antitrust laws. Indeed, if the venture helps inform patients, employers, and payers, as well as physicians, about the operation of the Dayton health care market, while avoiding anticompetitive conduct, then its effect may be procompetitive. Accordingly, the Commission staff has no present intention to recommend enforcement action. If the physicians use the organization or its activities as a vehicle for collective action that unreasonably limits physician competition, however, then both the group and its members may be subject to such action.”

Because the Massachusetts lawyers have only recently engaged in a joint boycott and some have threatened future joint action, they need to be particularly squeaky clean when jointly addressing compensation issues.  [update Aug. 11, 2004: See Assigned Counsel Don't's & Do's, based on the FTC's Clark County (WA) Decision and Order]