My apologies for mischaracterizing your statements re. “strike”.

As a more precise matter of law, what are the boundaries of the concept of “boycott” in this scenario? If members of the bar generally avoid the contracts (as a new attorney I have been quite vigorously warned away from touching the CPCS tar baby), does it really matter that a certain number of bar advocates decline new assignments at a particular moment in time?

Granted, such synchronicity heightens the coercive effect, but I understand that the common timing here, following closely on the recent court cases, indicates a tipping point as much as it does a conspiracy.

After all, who wants to be the last lawyer on the list? That would be a lot of cases to try to withdraw from.

My apologies for mischaracterizing your statements re. “strike”.

As a more precise matter of law, what are the boundaries of the concept of “boycott” in this scenario? If members of the bar generally avoid the contracts (as a new attorney I have been quite vigorously warned away from touching the CPCS tar baby), does it really matter that a certain number of bar advocates decline new assignments at a particular moment in time?

Granted, such synchronicity heightens the coercive effect, but I understand that the common timing here, following closely on the recent court cases, indicates a tipping point as much as it does a conspiracy.

After all, who wants to be the last lawyer on the list? That would be a lot of cases to try to withdraw from.

Thanks for commenting, Mr. McGill.  You perspective in Springfield is helpful.
There is no inconsistency, however, in my position.  I have never said that an individual lawyer may not decide individually to stop taking cases.  I have said that lawyers may not decide in concert (jointly, coordinating with each other, conspiring, etc.) to stop taking cases simultaneously — for any reason, but especially — in order to raise fees.  That use of a coercive boycott puts a poison into the process that taints everything else the lawyers do.   The prohibition against joint refusals to deal (or refusals to deal except on particular terms) is basic and crucial for our antitrust laws.
And, yes, there is no strike here, but it is because there could never be a “strike,” as these are not employees — unless they are in the same law firm, they are independent sellers of a service.  That’s why this is a boycott, not a strike.
Yes, the system needs improvement (and I have been recommending higher fees for years, along with believing that a public defender system would be more effective for clients and for the State in the long run), but it cannot come with officers of the court acting in concert to bring the courts and legislature to their knees.

Thanks for commenting, Mr. McGill.  You perspective in Springfield is helpful.
There is no inconsistency, however, in my position.  I have never said that an individual lawyer may not decide individually to stop taking cases.  I have said that lawyers may not decide in concert (jointly, coordinating with each other, conspiring, etc.) to stop taking cases simultaneously — for any reason, but especially — in order to raise fees.  That use of a coercive boycott puts a poison into the process that taints everything else the lawyers do.   The prohibition against joint refusals to deal (or refusals to deal except on particular terms) is basic and crucial for our antitrust laws.
And, yes, there is no strike here, but it is because there could never be a “strike,” as these are not employees — unless they are in the same law firm, they are independent sellers of a service.  That’s why this is a boycott, not a strike.
Yes, the system needs improvement (and I have been recommending higher fees for years, along with believing that a public defender system would be more effective for clients and for the State in the long run), but it cannot come with officers of the court acting in concert to bring the courts and legislature to their knees.

David’s point #6 and point #3 are in conflict with on another.

If court-appointed work is expected to fill the empty portion of an attorney’s calander, then how could it be improper for an attorney to refuse to take further cases when he or she deems that calendar to be filled up?

While Massachusetts lawyers throughout the commonwealth complain about the rate of pay, it is instructional to note that the crisis is being played out in Hampden county. This is the City of Springfield and surrounding rural towns. There is nothing like the surplus of lawyers you find in the Boston area, and relatively few of the defense lawyers are bilingual. Also, the nature of the program (expensive CLE programs that are not state paid, delays of six months or more for getting paid, notorious examples where budgets have run dry and attorneys never get paid for work done in good faith) is such that it is simply not worth the trouble.

As a result of these demographic and market facts too few assigned counsel have signed up to replace those who have quit due to attrition. As a result, Judges assign defendants to the few attorneys on the list without regard for their availabilty, and the bar counsel are quitting in droves. Quitting, or simply declaring that they are unavailable under the circumstances, is not a strike.

This is not happening in most of Massachusetts, but is rather a worst-case scenario being played out in one unfortunate municipality. If current trends continue, however, this could play out in the entire commonwealth.

David’s point #6 and point #3 are in conflict with on another.

If court-appointed work is expected to fill the empty portion of an attorney’s calander, then how could it be improper for an attorney to refuse to take further cases when he or she deems that calendar to be filled up?

While Massachusetts lawyers throughout the commonwealth complain about the rate of pay, it is instructional to note that the crisis is being played out in Hampden county. This is the City of Springfield and surrounding rural towns. There is nothing like the surplus of lawyers you find in the Boston area, and relatively few of the defense lawyers are bilingual. Also, the nature of the program (expensive CLE programs that are not state paid, delays of six months or more for getting paid, notorious examples where budgets have run dry and attorneys never get paid for work done in good faith) is such that it is simply not worth the trouble.

As a result of these demographic and market facts too few assigned counsel have signed up to replace those who have quit due to attrition. As a result, Judges assign defendants to the few attorneys on the list without regard for their availabilty, and the bar counsel are quitting in droves. Quitting, or simply declaring that they are unavailable under the circumstances, is not a strike.

This is not happening in most of Massachusetts, but is rather a worst-case scenario being played out in one unfortunate municipality. If current trends continue, however, this could play out in the entire commonwealth.

Thanks for writing, Grace. I’m glad to hear that an experienced lawyer is in a position to take assigned counsel appellate work. Bravo. I have a few quick replies on the Mass. situation:

1) you say you agree that “under existing law a boycott by lawyers is illegal”. Are you suggesting that lawyers who are competitors should be allowed to boycott for higher fees (a forming of price fixing by sellers) and deserve an antitrust law exemption? I hope not.

2) you say “it is just as illegal for judges to force attorneys to take cases against their will” but I believe the law on that subject is just the opposite. Not liking the policy is different than willing such emergency appointments to be illegal. When we accept the benefits of that law license, we all know that emergency appointments are possible (at the Legislated fee rate).

3) let’s be clear here, the illegal boycotts came first, causing this emergency use of appointment power in order to avoid releasing arrested prisoners — and the boycotts continue despite the 25% pay hike and establishment of a commission to report to the Governor and Legislature in early 2005.

4) the boycotters are causing their colleagues to be subjected to the involuntary appointments; those colleagues should be demanding that the boycotters return to accepting cases AND should be demanding that Bar Counsel discipline the boycotters for intentionally obstructing court services, along with intentionally violating the antitrust laws.

5) if a bar advocate was taking new cases prior to the “strike” this summer, at $30 per hour, it is very difficult to see how she or her can say that $37.50 will cause bankruptcy — especially since there is (to say the least) no guarantee that the lawyer will find private clients to fill the gap. If it would, they are allowed to file bona fide requests to be excused from service.

6) assigned counsel work is not meant to be all or the greatest portion of any lawyer’s practice; the assignments bring in dollars and help fill empty calendars, and they are a form of public service. No one should expect to make a good living solely on assigned counsel fees or to have them cover all their overhead. [Except for a few good folks like yourself with a financial safety net, only zealots or masochists like myself decide to give up private clients and work solely on assigned counsel cases; when I did it, I knew that I might become part of the class of working poor I was serving.]

Thanks for writing, Grace. I’m glad to hear that an experienced lawyer is in a position to take assigned counsel appellate work. Bravo. I have a few quick replies on the Mass. situation:

1) you say you agree that “under existing law a boycott by lawyers is illegal”. Are you suggesting that lawyers who are competitors should be allowed to boycott for higher fees (a forming of price fixing by sellers) and deserve an antitrust law exemption? I hope not.

2) you say “it is just as illegal for judges to force attorneys to take cases against their will” but I believe the law on that subject is just the opposite. Not liking the policy is different than willing such emergency appointments to be illegal. When we accept the benefits of that law license, we all know that emergency appointments are possible (at the Legislated fee rate).

3) let’s be clear here, the illegal boycotts came first, causing this emergency use of appointment power in order to avoid releasing arrested prisoners — and the boycotts continue despite the 25% pay hike and establishment of a commission to report to the Governor and Legislature in early 2005.

4) the boycotters are causing their colleagues to be subjected to the involuntary appointments; those colleagues should be demanding that the boycotters return to accepting cases AND should be demanding that Bar Counsel discipline the boycotters for intentionally obstructing court services, along with intentionally violating the antitrust laws.

5) if a bar advocate was taking new cases prior to the “strike” this summer, at $30 per hour, it is very difficult to see how she or her can say that $37.50 will cause bankruptcy — especially since there is (to say the least) no guarantee that the lawyer will find private clients to fill the gap. If it would, they are allowed to file bona fide requests to be excused from service.

6) assigned counsel work is not meant to be all or the greatest portion of any lawyer’s practice; the assignments bring in dollars and help fill empty calendars, and they are a form of public service. No one should expect to make a good living solely on assigned counsel fees or to have them cover all their overhead. [Except for a few good folks like yourself with a financial safety net, only zealots or masochists like myself decide to give up private clients and work solely on assigned counsel cases; when I did it, I knew that I might become part of the class of working poor I was serving.]

While I agree that under existing law a boycott by lawyers is illegal, it is just as illegal for judges to force attorneys to take cases against their will. No other profession is forced to work (I think it’s called involuntary servitude). I’ve read all the cases and articles that purport to justify the practice on some sort of “duty” level. Maybe that was true a hundred years ago when the “profession” was filled with well-to-do gentlemen. Today’s reality is far different. Lest you think that I’m some “white-shoe” lawyer billing $250 an hour, I want to say that after 25 years as a deputy public defender, I have a criminal appellate practice 100% devoted to appointed work, which in California pays $65 to $85 an hour, and $125 an hour for capital work. The only reason I can afford to do this work (which I love) is that I receive a pension and health insurance from the city, and I work at home with no staff. There is no way I could do this work for $37.50 an hour, and Massachusetts needs to wake up and realize it’s in the 21st century.

While I agree that under existing law a boycott by lawyers is illegal, it is just as illegal for judges to force attorneys to take cases against their will. No other profession is forced to work (I think it’s called involuntary servitude). I’ve read all the cases and articles that purport to justify the practice on some sort of “duty” level. Maybe that was true a hundred years ago when the “profession” was filled with well-to-do gentlemen. Today’s reality is far different. Lest you think that I’m some “white-shoe” lawyer billing $250 an hour, I want to say that after 25 years as a deputy public defender, I have a criminal appellate practice 100% devoted to appointed work, which in California pays $65 to $85 an hour, and $125 an hour for capital work. The only reason I can afford to do this work (which I love) is that I receive a pension and health insurance from the city, and I work at home with no staff. There is no way I could do this work for $37.50 an hour, and Massachusetts needs to wake up and realize it’s in the 21st century.

Thanks for writing, Anne, I appreciate your input and your deep feelings.  I sure wish some one would actually find that study that keeps getting quoted about overhead.  My remembrance is that it dealt with small and medium size firms — most far bigger than the average assigned counsel’s practice.   Of course, as I’ve said often, my argument focuses on the use of unlawful and unethical boycott tactics.   My questions about overhead have more to do with my usual obsession with keeping arguments honest, fact-based and fair. 
As for the market issue:  If a monopoly is acquired legally, the monopolist can charge whatever it wants, even if it is a buyer rather than a seller.  I addressed some of these issues in another Comment last year:

The Supreme Court made it clear 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 [or Medicaid], 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. 

Also, please remember that — by definition — your indigent clients cannot afford to pay for a lawyer.  Before Gideon, they went without lawyers.  The State is the only buyer because no one else is willing to pay for services for this clientele.  And, in general, I don’t think lawyers want real markets where buyers have sufficient information to fight for fair rates.

Thanks for writing, Anne, I appreciate your input and your deep feelings.  I sure wish some one would actually find that study that keeps getting quoted about overhead.  My remembrance is that it dealt with small and medium size firms — most far bigger than the average assigned counsel’s practice.   Of course, as I’ve said often, my argument focuses on the use of unlawful and unethical boycott tactics.   My questions about overhead have more to do with my usual obsession with keeping arguments honest, fact-based and fair. 
As for the market issue:  If a monopoly is acquired legally, the monopolist can charge whatever it wants, even if it is a buyer rather than a seller.  I addressed some of these issues in another Comment last year:

The Supreme Court made it clear 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 [or Medicaid], 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. 

Also, please remember that — by definition — your indigent clients cannot afford to pay for a lawyer.  Before Gideon, they went without lawyers.  The State is the only buyer because no one else is willing to pay for services for this clientele.  And, in general, I don’t think lawyers want real markets where buyers have sufficient information to fight for fair rates.

In response to the previous comments on this post: please note, in thinking about the sufficiency of current Mass. rates, that these rates do NOT cover attorney overhead. $40/hr * 2000 hr/yr free & clear would be *great*, but from that I have to take out: office equipment & supplies, malpractice insurance, secretarial support, health insurance, rent (if one has an out-of-the-home office), unpaid “waiting time” in court, my internet hookup (required, in order to submit bills to Mass.), computer research, unpaid travel expenses, unpaid in-court waiting time, & so on & so on. One recent source (sorry, can’t remember which, but it’s readily available to the curious internet researcher) recently estimated the hrly overhead of a small-office practitioner as $48/hr.; others have given much higher estimates, depending upon staffing levels, etc.

For a good discussion of the sufficiency of Mass. rates, given overhead costs, see this explanation, posted today on the “Crime & Federalism” website (in response to the site owner’s comments):
http://federalism.typepad.com/crime_federalism/2004/12/in_response_to_.html

As to Carolyn’s comment, that it’s “stupid” to rely on court-appointed work: I disagree. If indeed 80% of criminal cases in Mass. are court-appointed, then it’s hard to see the system working if there were no attorneys concentrating exclusively (or almost so) on court appointments.

Unless, of course, we’d be happy with a system in which those who represented indigent defendants were not criminal-law specialists — certainly if that were acceptable, the vast # of civil-law attys practicing in Mass. could each take a couple of cases a year & probably represent all the indigent defendants in need of a lawyer. In particular, big private law firms, by allowing their attys to take on a larger # of appointed cases, could shoulder a good deal of the burden without sustaining a major financial blow.

Surprisingly (could it be the rates? or the difficulty of the work?), civil attys have, for the most part, failed to step up to the plate. Even if they were more willing, I don’t think we’d want to move to a system where attys inexperienced in criminal practice were mainly responsible for safeguarding the constitutional rights of the indigent accused.

A few final, miscellaneous notes: David’s correct that we Mass. attorneys could do better at specifying our individual hourly overhead costs. Having calculated those costs for my own practice (which does not include any staff support and which I operate out of my home (generally meeting with clients in jail/prison)), I can aver that $40/hr _barely_ covers my overhead. So how can I afford to do the work? Like many of my (more fortunate colleagues), I’m married to someone who makes more money, & I’m on his health-insurance plan.

Like everyone in Mass., I’m also cutting the # of Massachusetts court-appointed cases I do (or trying to: I can’t wait for my first court order DEMANDING that I take a particular case). Where I can take on a private case instead (or a federal case, or a court-appointed case in one of the other jurisidction in which I practice), so much the better.

And on the proper definition of “market” rates: Agreed that this is a difficult question, and my understanding of economic issues is admittedly limited. Perhaps, though, a “market” rate could properly be thought of as one at which attorneys were willing to take cases, versus a rate at which the courts have to order attorneys to do so?

Alternatively, perhaps a “market” rate would be the one on which the market would settle if the buyer’s market for criminla-law services were competitive. I’m probably not saying this the right way, but I mean the price that would fall out, if many buyers were competing for our services, rather than only a few (the state of Massachusetts apparently “buying” 80% of services). Isn’t our situation (one big buyer) called a “reverse monopoly,” or something like that??

In response to the previous comments on this post: please note, in thinking about the sufficiency of current Mass. rates, that these rates do NOT cover attorney overhead. $40/hr * 2000 hr/yr free & clear would be *great*, but from that I have to take out: office equipment & supplies, malpractice insurance, secretarial support, health insurance, rent (if one has an out-of-the-home office), unpaid “waiting time” in court, my internet hookup (required, in order to submit bills to Mass.), computer research, unpaid travel expenses, unpaid in-court waiting time, & so on & so on. One recent source (sorry, can’t remember which, but it’s readily available to the curious internet researcher) recently estimated the hrly overhead of a small-office practitioner as $48/hr.; others have given much higher estimates, depending upon staffing levels, etc.

For a good discussion of the sufficiency of Mass. rates, given overhead costs, see this explanation, posted today on the “Crime & Federalism” website (in response to the site owner’s comments):
http://federalism.typepad.com/crime_federalism/2004/12/in_response_to_.html

As to Carolyn’s comment, that it’s “stupid” to rely on court-appointed work: I disagree. If indeed 80% of criminal cases in Mass. are court-appointed, then it’s hard to see the system working if there were no attorneys concentrating exclusively (or almost so) on court appointments.

Unless, of course, we’d be happy with a system in which those who represented indigent defendants were not criminal-law specialists — certainly if that were acceptable, the vast # of civil-law attys practicing in Mass. could each take a couple of cases a year & probably represent all the indigent defendants in need of a lawyer. In particular, big private law firms, by allowing their attys to take on a larger # of appointed cases, could shoulder a good deal of the burden without sustaining a major financial blow.

Surprisingly (could it be the rates? or the difficulty of the work?), civil attys have, for the most part, failed to step up to the plate. Even if they were more willing, I don’t think we’d want to move to a system where attys inexperienced in criminal practice were mainly responsible for safeguarding the constitutional rights of the indigent accused.

A few final, miscellaneous notes: David’s correct that we Mass. attorneys could do better at specifying our individual hourly overhead costs. Having calculated those costs for my own practice (which does not include any staff support and which I operate out of my home (generally meeting with clients in jail/prison)), I can aver that $40/hr _barely_ covers my overhead. So how can I afford to do the work? Like many of my (more fortunate colleagues), I’m married to someone who makes more money, & I’m on his health-insurance plan.

Like everyone in Mass., I’m also cutting the # of Massachusetts court-appointed cases I do (or trying to: I can’t wait for my first court order DEMANDING that I take a particular case). Where I can take on a private case instead (or a federal case, or a court-appointed case in one of the other jurisidction in which I practice), so much the better.

And on the proper definition of “market” rates: Agreed that this is a difficult question, and my understanding of economic issues is admittedly limited. Perhaps, though, a “market” rate could properly be thought of as one at which attorneys were willing to take cases, versus a rate at which the courts have to order attorneys to do so?

Alternatively, perhaps a “market” rate would be the one on which the market would settle if the buyer’s market for criminla-law services were competitive. I’m probably not saying this the right way, but I mean the price that would fall out, if many buyers were competing for our services, rather than only a few (the state of Massachusetts apparently “buying” 80% of services). Isn’t our situation (one big buyer) called a “reverse monopoly,” or something like that??

Hi David – I posted on this over at my site. At first, I was going to advocate a rate of $50 or $60 an hour but I did the math and you know what – $40/hour is really not out of the ballpark for a shoe string practice, assuming attorneys collect each and every of the 2000 hours they bill. I am sure some of this depends on region, the particulars of the payment scheme, etc…but still, I can’t say that as a prima facie matter $40/hr is too low. Of course, as you know, I’ve always thought that it’s stupid to try to make a living off court appointed work anyway.

Hi David – I posted on this over at my site. At first, I was going to advocate a rate of $50 or $60 an hour but I did the math and you know what – $40/hour is really not out of the ballpark for a shoe string practice, assuming attorneys collect each and every of the 2000 hours they bill. I am sure some of this depends on region, the particulars of the payment scheme, etc…but still, I can’t say that as a prima facie matter $40/hr is too low. Of course, as you know, I’ve always thought that it’s stupid to try to make a living off court appointed work anyway.