Below, I have copied the terms in the proposed Decision and Order in the Federal Trade Commission’s Clark County, WA, assigned counsel case. They are a useful guide to the types of conduct prohibited and permitted for assigned counsel who are attempting to increase the fees they receive. As the FTC Staff explains in an accompanying Statement, the Court in Federal Trade Commission v. Superior Court Trial Lawyers Association, 493 U.S. 411 (1990) (SCTLA):
held that a boycott among criminal indigent defense attorneys was a per se violation of the antitrust laws, despite the lawyers’ claims that the boycott was a political act ostensibly designed to improve the quality of representation by increasing their reimbursement rates. The Court observed that “[n]o matter how altruistic the motives of respondents may have been, it is undisputed that their immediate objective was to increase the price that they would be paid for their services.” 493 U.S. at 427.
Whether or not a lawyer “has” to take a case due to a contract being in force, and whether the assigned cases are criminal or civil is totally irrelevant to the antitrust analysis. The price fixing oil companies or widget sellers, or physicians, that have been prosecuted over the years under the antitrust law did not have any obligation to sell to anyone. Their obligation under the law is to decide unilaterally, not concertedly, whether to sell their product or services to any buyer and/or at what price. There does not have to be a formal organization or signed conspiracy document to have “joint” or “concerted” action under the antitrust law.
Before the Federal Trade Commission
In the Matter of Robert Lewis, James Sowder, Gerald Wear, and Joel R. Yoseph, individually.
IT IS FURTHER ORDERED that Respondents, directly or indirectly, or through any corporate or other device, in connection with the provision of legal services in or affecting commerce, as “commerce” is defined in Section 4 of the Federal Trade Commission Act, 15 U.S.C. ‘ 44, cease and desist from:
A. Entering into, adhering to, participating in, maintaining, organizing, implementing, enforcing, or otherwise facilitating any combination, conspiracy, agreement, or understanding between or among any attorneys:
1. To negotiate on behalf of any attorney with any Payor;
2. To deal, refuse to deal, or threaten to refuse to deal with any Payor;
3. Regarding any term, condition, or requirement upon which any attorney deals, or is willing to deal, with any Payor, including, but not limited to, price terms; or
4. Not to deal individually with any Payor;
B. Exchanging or facilitating in any manner the exchange or transfer of information among attorneys concerning any attorney’s willingness to deal with a Payor, or the terms or conditions, including price terms, on which the attorney is willing to deal with a Payor;
C. Attempting to engage in any action prohibited by Paragraph II.A or II.B above; and
D. Encouraging, suggesting, advising, pressuring, inducing, or attempting to induce any person to engage in any action that would be prohibited by Paragraphs II.A through II.C above.
PROVIDED, HOWEVER, that, nothing in this Paragraph II shall prevent Respondents from:
(i) Exercising rights under the First Amendment to the United States Constitution to petition any government body concerning legislation, rules or procedures;
(ii) Providing information or views in a noncoercive manner to persons engaged in or responsible for the administration of any program to obtain legal services for persons eligible for appointed counsel.