& — this should not have been an afterthought — sorry to hear of your health problems. Hope you’re doing reasonably well,
Anne

& — this should not have been an afterthought — sorry to hear of your health problems. Hope you’re doing reasonably well,
Anne

David: I’ve now caught up on your (many & thoughtful) prior postings on the subject & am regretting my ill-informed, prickly response. It’s quite possible that my view reduces to the position that one set of values (those which we CJA attorneys claim to espouse — cynically, according to some of your posts) trumps another (those which antitrust law protects), such that illegal, antitrust-violating conduct is morally justified. Will have to think much more about this, however, before reaching an intelligent conclusion.

Thanks for the great discussion,
Anne

David: I’ve now caught up on your (many & thoughtful) prior postings on the subject & am regretting my ill-informed, prickly response. It’s quite possible that my view reduces to the position that one set of values (those which we CJA attorneys claim to espouse — cynically, according to some of your posts) trumps another (those which antitrust law protects), such that illegal, antitrust-violating conduct is morally justified. Will have to think much more about this, however, before reaching an intelligent conclusion.

Thanks for the great discussion,
Anne

Thanks for writing, Anne. Late is definitely better than never. You may, acting individually, choose not to take more assigned counsel cases. What you may not do under the antitrust laws is act in concert with other sellers of legal services to put pressure on the buyer of your services to change its practices, prices, etc. You are not allowed to try to or actually coordinate the refusal to deal with other lawyers in order to increase the power of your “message” (coercion).

If you take a look at some of my prior postings about the Mass. assigned counsel, you’ll get more of a flavor for the issue, and (I hope) see that I am sympathetic to your cause, but not with the use of unlawful tactics. [As you may know, I am now in early retirement due to health problems, but I worked exclusively as assigned counsel (as Law Guardian for children) for the last 5 or so years of my law practice -- at a time when we were paid $25 per hour for out of court work and $40 for in court. Doing so plunged me out of the middle class, but it was my choice and I accepted the consequences.]

Thanks for writing, Anne. Late is definitely better than never. You may, acting individually, choose not to take more assigned counsel cases. What you may not do under the antitrust laws is act in concert with other sellers of legal services to put pressure on the buyer of your services to change its practices, prices, etc. You are not allowed to try to or actually coordinate the refusal to deal with other lawyers in order to increase the power of your “message” (coercion).

If you take a look at some of my prior postings about the Mass. assigned counsel, you’ll get more of a flavor for the issue, and (I hope) see that I am sympathetic to your cause, but not with the use of unlawful tactics. [As you may know, I am now in early retirement due to health problems, but I worked exclusively as assigned counsel (as Law Guardian for children) for the last 5 or so years of my law practice -- at a time when we were paid $25 per hour for out of court work and $40 for in court. Doing so plunged me out of the middle class, but it was my choice and I accepted the consequences.]

Better late than never? I’m a Massachusetts bar adovcate who just came across your website, and this posting, which — I must admit — infuriated me! :)

I admit that I know practically nothing about antitrust law. However, answer me this: I’m an attorney who often accepts Massachusetts court appointments to represent indigent criminal defendants on appeal. Increasingly, the ridiculously low rates paid by Massachusetts are interfering with my ability to support my practice. (It’s not that I want the “perks” of private practice without the “responsiblities,” as you suggest: it’s that I want to (1) shoulder my responsibilities to my indigent clients, while (2) staying AFLOAT financially. (I don’t have any fabulously wealthy private clients to subsidize my bar-advocate work; none of my clients is well-off.) I have no contract with the Commonwealth of Massachusetts: I simply take cases on a regular basis. Am I obligated, as a matter of antitrust law, to continue taking cases despite the paltry rates? Or, alternatively, am I obligated _not_ to refuse cases simultaneously with other underpaid bar advocates? Or only not to refuse cases in concert with other bar advocates?

I guess my point is that the Commonwealth is pulling the rug out from under my practice; I can no longer afford to do this work (meaning, take new cases: as an ethical matter I am, of course, continuing to represent my current clients zealously). To say that my individual behavior in refusing new cases violates antitrust law seems unfair ….

I’d also note that to date, the only action that’s been effective in obtaining payment from MA was the one-day Suffolk County “boyctt” (= “refusal of new cases”) last year, when the Commonwealth supposedly ran out of money to pay us for work _already_ _performed_ (I say “supposedly,” b/c a supplemental appropriations bill was passed within 24 hrs). As a practical matter, refusing new cases would seem to be the only way to achieve a change in reimbursement policies. (I realize that this does not directly contradict your position: perhaps your view is that even if there is _no_ _way_, other than refusing cases, to effect change, attorneys are ethically bound (&/or constrained by antitrust law) to accept that fact & refrain from refusing cases).

Thanks for reading,
Anne

Better late than never? I’m a Massachusetts bar adovcate who just came across your website, and this posting, which — I must admit — infuriated me! :)

I admit that I know practically nothing about antitrust law. However, answer me this: I’m an attorney who often accepts Massachusetts court appointments to represent indigent criminal defendants on appeal. Increasingly, the ridiculously low rates paid by Massachusetts are interfering with my ability to support my practice. (It’s not that I want the “perks” of private practice without the “responsiblities,” as you suggest: it’s that I want to (1) shoulder my responsibilities to my indigent clients, while (2) staying AFLOAT financially. (I don’t have any fabulously wealthy private clients to subsidize my bar-advocate work; none of my clients is well-off.) I have no contract with the Commonwealth of Massachusetts: I simply take cases on a regular basis. Am I obligated, as a matter of antitrust law, to continue taking cases despite the paltry rates? Or, alternatively, am I obligated _not_ to refuse cases simultaneously with other underpaid bar advocates? Or only not to refuse cases in concert with other bar advocates?

I guess my point is that the Commonwealth is pulling the rug out from under my practice; I can no longer afford to do this work (meaning, take new cases: as an ethical matter I am, of course, continuing to represent my current clients zealously). To say that my individual behavior in refusing new cases violates antitrust law seems unfair ….

I’d also note that to date, the only action that’s been effective in obtaining payment from MA was the one-day Suffolk County “boyctt” (= “refusal of new cases”) last year, when the Commonwealth supposedly ran out of money to pay us for work _already_ _performed_ (I say “supposedly,” b/c a supplemental appropriations bill was passed within 24 hrs). As a practical matter, refusing new cases would seem to be the only way to achieve a change in reimbursement policies. (I realize that this does not directly contradict your position: perhaps your view is that even if there is _no_ _way_, other than refusing cases, to effect change, attorneys are ethically bound (&/or constrained by antitrust law) to accept that fact & refrain from refusing cases).

Thanks for reading,
Anne

Hello, again, Deborah.    Thanks for the info about assigned counsel panelists.  I’m not sure what you want to know about my knowledge of abuse and neglect cases.   While I was practicing, I served as assigned counsel  (Law Guardian) for perhaps 200 children in abuse and neglect cases (including termination of parental rights cases); I often had to research NY law on the subject during the year when I ran the Law Guardian Backup Center; and I wrote drafts of a couple of opinions in such cases during my short stint as a Family Court law clerk.  In addition, prior to exclusively working as a Law Guardian, I represented a handful of indigent adults who were respondents in abuse or neglect cases.   As I stopped practicing 6 years ago, I may be a bit rusty on the substantive law.
Your second question is a good one.  The basic answer is that you MAY  “form a bar association of like-minded attorneys to work to better the law, better working conditions, educate the public, and educate the legislature,” so long as you limit your activities to lawful behavior.  That’s where it gets tricky.   Because the association is a group of competitors, it needs to be careful in the way it operates, since its actions are almost be definition “concerted” for antitrust purposes.   Concerted education of the public is fine, concerted coercion of the “buyer” of your services is not.
Because its members recently engaged in a joint refusal to deal, your bar association perhaps needs to be especially careful.  It may not become a means to coordinate or otherwise facilitate boycotts or threats of boycotts by its members in order to pressure the government to meet the demands of its members.   Some of the issues are covered in the footnotes to this posting. 
Trade association antitrust law is quite complex and you might want to get some legal advice by antitrust experts.   One place to look for some general guidance is The Association Antitrust Update, which is put together by a Detroit law firm and has case summaries, articles and more.  In addition, I would suggest reading a recent Advisory Opinion (Feb. 6, 2003) from the FTC Staff to PriMed Physicians, a group of Dayton, Ohio, physicians.  Their situation appears to raise many of the same issues that would be raised by the operation of your bar association:

[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 gives a very useful analysis of issues analogous to those assigned counsel would face in joint educational and lobbying efforts.  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.”

As we have discussed before, I want assigned counsel fees to increase in Massachusetts.  But, I also want the lawyers to achieve their goals in a lawful and ethical way.   Given the recent boycott and the threats of future joint action, it is a tightrope.

Hello, again, Deborah.    Thanks for the info about assigned counsel panelists.  I’m not sure what you want to know about my knowledge of abuse and neglect cases.   While I was practicing, I served as assigned counsel  (Law Guardian) for perhaps 200 children in abuse and neglect cases (including termination of parental rights cases); I often had to research NY law on the subject during the year when I ran the Law Guardian Backup Center; and I wrote drafts of a couple of opinions in such cases during my short stint as a Family Court law clerk.  In addition, prior to exclusively working as a Law Guardian, I represented a handful of indigent adults who were respondents in abuse or neglect cases.   As I stopped practicing 6 years ago, I may be a bit rusty on the substantive law.
Your second question is a good one.  The basic answer is that you MAY  “form a bar association of like-minded attorneys to work to better the law, better working conditions, educate the public, and educate the legislature,” so long as you limit your activities to lawful behavior.  That’s where it gets tricky.   Because the association is a group of competitors, it needs to be careful in the way it operates, since its actions are almost be definition “concerted” for antitrust purposes.   Concerted education of the public is fine, concerted coercion of the “buyer” of your services is not.
Because its members recently engaged in a joint refusal to deal, your bar association perhaps needs to be especially careful.  It may not become a means to coordinate or otherwise facilitate boycotts or threats of boycotts by its members in order to pressure the government to meet the demands of its members.   Some of the issues are covered in the footnotes to this posting. 
Trade association antitrust law is quite complex and you might want to get some legal advice by antitrust experts.   One place to look for some general guidance is The Association Antitrust Update, which is put together by a Detroit law firm and has case summaries, articles and more.  In addition, I would suggest reading a recent Advisory Opinion (Feb. 6, 2003) from the FTC Staff to PriMed Physicians, a group of Dayton, Ohio, physicians.  Their situation appears to raise many of the same issues that would be raised by the operation of your bar association:

[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 gives a very useful analysis of issues analogous to those assigned counsel would face in joint educational and lobbying efforts.  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.”

As we have discussed before, I want assigned counsel fees to increase in Massachusetts.  But, I also want the lawyers to achieve their goals in a lawful and ethical way.   Given the recent boycott and the threats of future joint action, it is a tightrope.

David, I disagree.

Not all attorneys who receive state appointments are “Bar Advocates”. Most of us have NO contract, and have never promised anyone to take a minimum number of cases. In fact, there is a limitation as to hours and cases, if anything.

In addition, appointments are often for children and parents under attack by the full might of the state, in a situation where the state agency involved has almost NO oversite, all actions taken are secret, and the state agents display gender bias, class bias, and horrendous ethnic bias, routinely.

Further, these family law cases may (and almost always do) last an average of three or more years; sometimes when I represent a child after a disrupted adoption, my involvement is for 8-10 years or longer.

Picture this – the state terminates parental rights. The child wants to live with the parent (who is merely struggling with homelessness and poverty, more often then not and receives no help at all from the state…just “referrals” and derogatory treatment) and disrupts any attempt to adopt them out…becoming a legal orphan. I have several of these children at this point, in my practice. For some of them, the state is all they have (I spare you the details) and I am the only watch dog they have.

How much do you know about this area of law? I am talking G.L. c210, G.L. c.119?

Please advise!

Who says I cannot legally form a bar association of like-minded attorneys to work to better the law, better working conditions, educate the public, and educate the legislature????

Again: Deborah Sirotkin Butler, Esq., AmberPaw@aol.com

David, I disagree.

Not all attorneys who receive state appointments are “Bar Advocates”. Most of us have NO contract, and have never promised anyone to take a minimum number of cases. In fact, there is a limitation as to hours and cases, if anything.

In addition, appointments are often for children and parents under attack by the full might of the state, in a situation where the state agency involved has almost NO oversite, all actions taken are secret, and the state agents display gender bias, class bias, and horrendous ethnic bias, routinely.

Further, these family law cases may (and almost always do) last an average of three or more years; sometimes when I represent a child after a disrupted adoption, my involvement is for 8-10 years or longer.

Picture this – the state terminates parental rights. The child wants to live with the parent (who is merely struggling with homelessness and poverty, more often then not and receives no help at all from the state…just “referrals” and derogatory treatment) and disrupts any attempt to adopt them out…becoming a legal orphan. I have several of these children at this point, in my practice. For some of them, the state is all they have (I spare you the details) and I am the only watch dog they have.

How much do you know about this area of law? I am talking G.L. c210, G.L. c.119?

Please advise!

Who says I cannot legally form a bar association of like-minded attorneys to work to better the law, better working conditions, educate the public, and educate the legislature????

Again: Deborah Sirotkin Butler, Esq., AmberPaw@aol.com