f/k/a . . . the archives

July 23, 2005

does Bar Advocate = Irresponsible Lawyer?

Filed under: pre-06-2006 — David Giacalone @ 6:20 pm

The last thing I wanted to do this weekend is to break my July respite from

commentary in order to focus on a group of lawyers who are again making

the profession look bad.  But, this is too important and urgent to let slide:  




The majority of lawyers taking assigned counsel criminal cases to represent

the indigent in Massachusetts — called “bar advocates“ – are poised to 

continue their illegal and unethical joint boycott of new cases, in order

to put more pressure on State Government to increase their fees.  That’s

despite the fact that each House of the Mass. Legislature (under the gun

for the third summer in a row from coordinated statewide refusals to take

new cases) passed bills this week that would raise fees significantly – 

amounting to an 81% increase in the past two years.


See SouthCoastToday article (July 23, 2005); AP/Boston Herald

article (July 22, 2005); our post June 9th.

wolf dude neg  Click to see the full story, with extensive discusion and excerpts

from many prior posts on this topic.  I hope you’ll take a look and especially

if you live in Massachusetts or care about the image of the legal profession —

take a public stand.

 

p.s. I’ve just figured out why they’re called “bar advocates”

rather than just assigned counsel — their #1 priority seems

to be advocating for the bar, for themselves.

 

afterthought (July 25, 2005): At MyShingle you can read Carolyn Elefant’s


responding to bar advocate opposition to a cap of 1400 hours per year per assigned

counsel.

 

update (July 26, 2005): MACAA activist Deborah Sirotkin Butler writes to the Cape Cod Times

that the Massachusetts House “hid pay cuts and punitive systemic changes in a fake raise

slammed down by a cap. The actions of the House of representative were truly those of a

wolf in sheep’s clothing.” (Letter to the Editor, July 23, 2005)   She’s talking about capping

total bar advocate hours at 1400 per year and hiring public defenders to handle some of the district

court cases (moving Massachusetts toward a more balanced indigent defense system, which would

comport with national standards). See will MACAA react like a guild to indigent defense report?


p.s. (3 PM July 26, 2005): According to the Overworked Counties Chart posted at the

Bristol County bar advocate website, the average billed by each Bar Advocate in FY2004

was $33,147.    In the 6 counties where it’s hardest to find bar advocates and panel members

have the highest workloads, the average dollar amount billed by each bar advocate in

FY2004 was $37,694.   Under the bills passed by both houses of the Legislature, a limit

of 1400 hours per year would yield $70,000 for the lowest level of cases; $84,000 for major

felonies; and $140,000 for murder cases.

 

update (July 27, 2005):  A Mass. high court justice refuses to order the Legislature

to raise assigned counsel fees.  See “Lawyers granted time on pay dispute,”

by Dan Ring, Springfield Republican (July 27, 2005). Excerpt:


“An associate justice on the state’s highest court yesterday said

the state Legislature should receive more time to approve higher

hourly pay for private lawyers for the poor and resolve a crisis that

started last year in Hampden County.

 

“During a conference on a lawsuit that seeks increased hourly pay

for the court-appointed lawyers, Associate Justice John M. Greaney

also said it was unlikely the Supreme Judicial Court would order

lawmakers to appropriate money to settle the dispute since legislators

are making progress.” 

update (July 29, 2005): Yesterday, the Massachusetts legislature passed and sent

to the Governor an assigned counsel bill that followed closely the House version

of assigned counsel fee reform.  “Legislature OKs raises for criminal defenders,

Daily News Tribune, by Emelie Rutherford, July 29, 2005).  The bill, which was signed

into law today by Lt. Gov. Kerry Healey (Gov. Mitt, Romney is on vacation) will:


tiny check raise fees retroactive to July 1 from $37.50 to $61.50 per hour to between

$50 and $100 per hour, with a cap of 1400 hours (The cap would apply

only to new cases accepted after 1,400 hours are reached.)

 

tiny check authorize hiring of 10 new on-staff public defenders (to handle criminal

matters) for each of the state’s district

 

tiny check require improved procedures for confirming that defendants are indigent

and the formation of a commission to study decriminalizing some acts. 

 

In a Boston Herald article, John Salsberg, co-chairman of Suffolk Lawyers For Justice

Inc., is quoted:


  “Finally, the hard work of court-appointed attorneys is being recognized. It is

unfortunate that it took a crisis in the court system to get to this point.”

Salsberg’s organization has been at the forefront of the concerted bar advocate boycotts —

thus creating the judicial crisis he decries. (prior post)

 

“tinyredcheck”  Meanwhile, at their Yahoo! ListServe, assigned counsel are congratulating themselves  for having the “courage” to refuse new cases, and especially thanking the [first concerted boycotters] 

in the “western part of the state for setting the tone and example for so much longer than any”. 

They’re also complaining that MACAA isn’t getting enough credit.

 

I would like to congratulate the assigned counsel who took my advice to heart two years ago and

concentrated their efforts on getting legislative, judicial and bar association support.  However,

because the threat and reality of more boycotting were never rejected by the bar advocate leaders,

I am reluctant to praise their efforts.   I have always opposed the tactics of the bar advocates, not

their goal of inceased fees.  As I said in September 2003: 



The Bar Advocates need to find a way to pursue their legitimate goals without violating

their ethical obligations or the antitrust laws.  They should continue their efforts to draft

improved legislation and seek sponsors.   But lobbying in public while building the

infrastructure for the next boycott is not acceptable conduct.   Achieving their longterm

goals, with lasting results, will surely come from persuasion, not coercion or collusion.

 

They need to create strong judicial, legislative and executive branch support for their fee

demands, while reaching out to other advocate groups, and earning the public’s respect

and trust.  

The apparent belief among assigned counsel in Massachusetts that they cannot achieve fair

fee levels without coordinated coercion bodes ill for the future. 

 

update (Aug. 8, 2005) Champion Magazine, the journal of the National association of Criminal

Defense Lawyers, has an article in its August edition, entitled “Lawyers on Strike — Beware the

Antitrust Laws,” by Malia Brink, which is now (ironically) posted at the Bristol County Bar

Advocates website, here. 









in the misty day
no window can be seen…
a prison

Kobayashi ISSA, translated by D.G. Lanoue

8 Comments

  1. You are misinformed. Please read the links on this page to get an idea of the crisis in Massachusetts:

    http://www.bristolcpcs.org/WhatsNew.html

    It has absolutely nothing to do with greed. Lawyers are going broke in this state.

    Comment by Al — July 26, 2005 @ 1:48 pm

  2. You are misinformed. Please read the links on this page to get an idea of the crisis in Massachusetts:

    http://www.bristolcpcs.org/WhatsNew.html

    It has absolutely nothing to do with greed. Lawyers are going broke in this state.

    Comment by Al — July 26, 2005 @ 1:48 pm

  3. Thanks for you input, Al.  If you’ve read through my writings on this topic, you’ll see that I am very aware of the information posted at the Bristol County Bar Advocate website, and have often commented on it.   Many of the arguments and purported facts put out by BCPCS and MACAA are misleading and/or specious.  For example, the numbers thrown around about “overhead expenses” are not based on any study of actual bar advocates, but instead come from national figures relating to small and medium-size firms.
    When I decided to concentrate my practice on assigned counsel cases representing children in New York State (at $25 per hour out of court, $40 in court), as I did in the mid-’90s, I knew it would mean financial restrictions and sacrifices.  Therefore, I had no secretary, I used a home office, I used the County Law Library system, etc.    Had I wanted to live above the income level that comes from reliance upon assigned counsel cases, I would have sought (and actually could have attracted) private clients. 
    I don’t know what your definition of greed might be.  Rejecting an 81% raise over the 2003 hourly rate, and being willing to create a court crisis through illegal boycott tactics, in order to get more pay (and keep out “competition” from public defenders) comes within my notion of greedy. 

    Comment by David Giacalone — July 26, 2005 @ 2:42 pm

  4. Thanks for you input, Al.  If you’ve read through my writings on this topic, you’ll see that I am very aware of the information posted at the Bristol County Bar Advocate website, and have often commented on it.   Many of the arguments and purported facts put out by BCPCS and MACAA are misleading and/or specious.  For example, the numbers thrown around about “overhead expenses” are not based on any study of actual bar advocates, but instead come from national figures relating to small and medium-size firms.
    When I decided to concentrate my practice on assigned counsel cases representing children in New York State (at $25 per hour out of court, $40 in court), as I did in the mid-’90s, I knew it would mean financial restrictions and sacrifices.  Therefore, I had no secretary, I used a home office, I used the County Law Library system, etc.    Had I wanted to live above the income level that comes from reliance upon assigned counsel cases, I would have sought (and actually could have attracted) private clients. 
    I don’t know what your definition of greed might be.  Rejecting an 81% raise over the 2003 hourly rate, and being willing to create a court crisis through illegal boycott tactics, in order to get more pay (and keep out “competition” from public defenders) comes within my notion of greedy. 

    Comment by David Giacalone — July 26, 2005 @ 2:42 pm

  5. 1. New York and Mass are two different animals. We are required to have an office. SEE: http://www.mass.gov/cpcs/manuals/pcmanual/MANUALChap2.pdf nobody here is practicing law out of a car or home office.

    2. It is illegal to refuse to work for free or when you are losing money on the deal? That’s a new one for me.

    3. Can you show me which article indicates that the overhead figures are from national surveys because I don’t see it. Massachusetts has a higher cost of living than average so any national average figures would underestimate the overhead costs here.

    Comment by Al — July 26, 2005 @ 6:44 pm

  6. 1. New York and Mass are two different animals. We are required to have an office. SEE: http://www.mass.gov/cpcs/manuals/pcmanual/MANUALChap2.pdf nobody here is practicing law out of a car or home office.

    2. It is illegal to refuse to work for free or when you are losing money on the deal? That’s a new one for me.

    3. Can you show me which article indicates that the overhead figures are from national surveys because I don’t see it. Massachusetts has a higher cost of living than average so any national average figures would underestimate the overhead costs here.

    Comment by Al — July 26, 2005 @ 6:44 pm

  7. 1.  The Assigned Counsel policy you link to does not say that an office may not be in a home.  It merely says that it must be “easily accessible to the courts in which s/he provides assigned representation.”  I personaly know Massachusetts assigned counsel who’s offices are at their homes.   Again, the facts, as they relate to each lawyer are important.
    2.  I’m a bit surprised that you have not yet boned up on the antitrust laws as they apply to professionals practicing in separate firms coordinating their refusals to deal with a buyer of services.   the issue has been raised for over two years.  If you haven’t bothered reading through this posting, you might give it a try, and follow some of the links, too.   
    3.  The bar advocates have been rather shy about actually showing the sources for their overhead claims.  I’ve asked for specific sources, but have not gotten replies. (They’ve also failed to show whether they are counting depreciation and similar expenses that are not out-of-pocket.) I believe that I did once see a footnote in a bar advocate submission referring to a national study. The numbers used jibe with national figures for small to medium firms (not the solo and duo practices that characterize so many bar advocates firms).   As far as saying that Massachusetts has higher costs of living, the specifics again matter.  What is the cost of living in the rural counties that have been the focus of so many of the concerted refusals to take new cases? 
    Finally, let’s not lose sight of my main point: acting in concert to cause a court crisis in order to force higher fees — rejecting an 81% increase achieved over the past two years — is inappropriate and unethical.

    Comment by David Giacalone — July 26, 2005 @ 7:39 pm

  8. 1.  The Assigned Counsel policy you link to does not say that an office may not be in a home.  It merely says that it must be “easily accessible to the courts in which s/he provides assigned representation.”  I personaly know Massachusetts assigned counsel who’s offices are at their homes.   Again, the facts, as they relate to each lawyer are important.
    2.  I’m a bit surprised that you have not yet boned up on the antitrust laws as they apply to professionals practicing in separate firms coordinating their refusals to deal with a buyer of services.   the issue has been raised for over two years.  If you haven’t bothered reading through this posting, you might give it a try, and follow some of the links, too.   
    3.  The bar advocates have been rather shy about actually showing the sources for their overhead claims.  I’ve asked for specific sources, but have not gotten replies. (They’ve also failed to show whether they are counting depreciation and similar expenses that are not out-of-pocket.) I believe that I did once see a footnote in a bar advocate submission referring to a national study. The numbers used jibe with national figures for small to medium firms (not the solo and duo practices that characterize so many bar advocates firms).   As far as saying that Massachusetts has higher costs of living, the specifics again matter.  What is the cost of living in the rural counties that have been the focus of so many of the concerted refusals to take new cases? 
    Finally, let’s not lose sight of my main point: acting in concert to cause a court crisis in order to force higher fees — rejecting an 81% increase achieved over the past two years — is inappropriate and unethical.

    Comment by David Giacalone — July 26, 2005 @ 7:39 pm

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