f/k/a . . . the archives

July 23, 2005

does “bar advocate” equal “unruly lawyer”?

Filed under: — David Giacalone @ 6:11 pm

 

                                                                                       -  originally posted July 23, 2005 here -

                                                                                                                     

 

The majority of lawyers taking assigned counsel 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) (“Two-thirds of the attorneys who represent poor defendants

in Middlesex and Suffolk counties refused to renew for the fiscal year that

began July 1).” our post June 9th.

That’s right: officers of the court, posturing as martyrs and saints, are about to

throw the judicial system yet again into a major crisis, because an 81% pay

increase over two years is supposedly unfair and inadequate, and simply not

enough to get lawyers who took such cases two years ago to accept them today.  

Why were thousands of  Massachusetts lawyers willing to take assigned counsel

cases two years ago, but are refusing to do so now?  They have learned the coercive

power of the joint boycott (and of the mere threat to do it again).   They believe they can

simply keep on squeezing and scaring the public – because accused felons will soon

be released back onto the streets for lack of counsel — and then start taking what they

see as “deferred clients” later, when their demands have been met. 

 

Just last month, I stated:


Many Massachusetts Bar Advocates have no shame: they are willing to 
publically break the antitrust laws, and disrupt the judicial process, in order

to coerce the State to raise their assigned counsel fees.  Some of them have

started another per se illegal joint boycott, refusing to take cases of indigents

charged with murder. (see Boston Globe article, June 8, 2005).  They’ve been

egging themselves on, at their Yahoo Group ListServe, since April — talking

about taking “summer vacations” again (like last year’s boycotts), with the chant

of “NNC!” (“No New Cases!”). 

Sadly, although their tactics got them Legislative action for significant hikes, they appear

to be too greedy, irresponsible and immature to wait another year for the next legislative

cycle like responsible adults and lawyers. Here are some of their current excuses:


tiny check They say the increases to $50/$60/$100 an hour (depending on the court and the

type of case)  are “below market” rates. This ignores their own statistics, in a

press release from the Massachusetts Association of Court-Appointed Attorneys

(MACAA, Aug. 9, 204), which declares that “80% of the business of criminal defense,

and defending the poor, is controlled by the Commonwealth.”   If 80% of the criminal

defense services in the State are provided at the assigned counsel rates (and the lower,

per-hour wage of public defenders), the actual “market” fee for those services is surely

much closer to $50 to $100 per hour than the fanciful $200+ figures the bar advocates

would like to think they could make from other hypothetical clients. 

 

tiny check  They are enraged that the House bill would reduce the cap on annual hours billed

by a bar advocate to 1400 hours, down from the current 1850.  Of course, this suggests

that– contrary to their posturing and assertions — bar advocates do not have a lot of private

clients waiting in the wings, willing to pay them top dollar for their services.  Otherwise,

why would so many of them worry about a 1400 hour ceiling?  Many bar advocates need

the money they make from the State very much — if there were no concerted boycott,

and decisions were truly made on an individual basis, many more of them would be willing

to take the new rates.  


update: The House bill would only limit income from new cases after the lawyer

reaches 1400 hours — he or she could still bill for pending matters.




  • According to the Overworked Counties Chart posted at the Bristol County bar

    advocate website, the average amount billed by a bar advocate in FY2004 was

    $33,147.    In the 6 counties where the 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 this month, 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.   A pretty good raise.




  • The Chart indicates that the average bar advocate in Massachusetts

    handled 90 cases per year for FY2004 — Bristol County had the highest

    average (119 cases) and Norfolk County the lowest (52 cases).




  • The Overworked Chart also shows that the average bar advocate devotes 67% of his

    or her time to bar advocate work.  In Hampden County it’s 85%, in Bristol County

    it’s 77%.  Let’s be frank: If if weren’t for their assigned counsel fees, many of these

    lawyers would be working at Wal-Mart in second jobs or would have been forced to

    leave the profession long ago.   


tiny check  Other assigned counsel are complaining that a mere $10 differential between

district court (mostly misdemeanors) and superior court (major felonies) is not enough

to get them to take the “more complex” cases.  Where I come from, real lawyers seek

out the more complex cases — and probably wouldn’t even need a higher fee as an

incentive.  Instead, one MACAA leader explains this week on their Listserve:


“Who needs the headache of cases that take years to resolve

when you crank out the district court cases and never look

back!”

                     [name withheld to protect the guilty]

How’s that for an edifying attitude? 

 

tiny check They adamantly oppose the hiring of more public defenders, even though

national guidelines make it clear that relying almost exclusively on private,

assigned counsel leads to the overall lowering of efficiency and quality. (See

below for more on this issue)

wolf dude There are many more points worth making, and the interested can refer

to our prior postings, many of which are excerpted below, going into detail on

the issues and arguments presented.   It seems clear to me that MACAA

and bar advocates across the Commonwealth have decided to put their

financial interests above service to clients and communities — to act like

a cartel first and a learned, helping profession second (or third?).  No matter

what pieties they spout, they’ve made it clear by their actions that this is

about the money.  I’m sure there is an admirable cadre of assigned counsel

in Massachusetts, who choose to do this less remunerative work out of a

sense of public duty, and they work hard and well.   But, from my vantage

point, most of them just look like unruly, greedy lawyers, willing to use whatever

tactics are necessary to achieve their financial ends — and who give the public

even more reason to distrust and loathe the profession. 

 


 

update: scroll down to the July 29, 2005 update to this post for news on

the final Legislation, signed July 29, which follows closely the House bill

(including the 1400 cap and hiring of 110 new public defenders).

 












wolf dude neg

 


“noyabutsSN”  Here are excerpts from our prior discussion of issues relating to the assigned-counsel

fee battle in Massachusetts:

 

- from Please End the Boycott, an Open Letter to Bar Advocates (Aug. 12 2004), which discusses whether there has been an antitrust violation, the relationship of fees to actual overhead, and what the true “market rate” might be for legal defense services:


[L]awyers should not be flouting the law and ethical duties in order to advance their own

financial interests.




  • I am a retired lawyer, who spent more than a decade as an antitrust lawyer at the

    Federal Trade Comn and then another decade in a solo law practice focused on

    serving as assigned counsel for children in NYS.  After taking hundreds of assigned

    cases (prior to a health-related retirement a few years ago), I know what it is like to

    work for $25/hr.   Massachusetts rates should be increased.  But, I believe it is

    inappropriate to use unalwful, coercive tactics to achieve that goal. . .  . . .

As independent sellers of legal services in private law practices, assigned

counsel are not permitted under federal antitrust laws to act together to force 

a buyer of their services (here, the State and its taxpayers) to increase fees. 

In 1990, the U.S. Supreme Court heard all the same arguments made now by the bar

advocates, in a case involving indigent defense counsel in Washington, D.C.  [i.e.,

fighting for 6th Amendment rights and better quality service; Legislature has failed to act

quickly enough; fee is too low to attract experienced counsel in adequate numbers; the

District/State has monopoly power, etc.]  The Court rejected each of the reasons for the

so-called “strike,” and declared that a group boycott aimed at increasing fees is a clear

violation of the antitrust laws.  (FTC v. Superior Court Trial Lawyers Assn., 493 U.S.

411, 1990).   Less than two months ago, the Federal Trade Commission filed a complaint

and accepted a consent decree for similar conduct by assigned counsel in Clark County,

WA (whose experienced antitrust counsel did not even bother to raise the jurisdiction issue).

 

In Indiana Federation of Dentists, 476 U.S. 447, 465 (1986), the U.S. Supreme Court held

that no sellers can decide their cause is so right that they can violate antitrust laws with

impunity, in seeking to impose higher fees or other terms on their customers. 

 

. . . [D]o not fool yourselves that there is no “concerted action,” without public or written 

statements by a group refusing to accept cases.  Of course, those lawyers who have publically

and jointly declared a “strike” in their districts are clearly engaged in unlawful boycotting. 

Furthermore, lawyers who were taking new cases until the last month, and have suddenly

stopped, cannot immunize their decisions simply by calling them individual or  “unilateral,”

or pointing to an overhead figure above the current fee.  If the near-simultaneous decisions

have been faciliated, coordinated or otherwise encouraged to happen at the same time —

whether through sophisticated cyber-information sharing or courthouse gossip — they will

be found to be joint action.

 

. . .


 

Whatever a “fair fee” might be, it should not be the result of unlawful coercion on the courts and

the legislature by “officers of the court.” Yes, politicians should set a fee level that takes into

account the long-term effects on the supply and quality of legal services.   But, they should not

have to act under the gun of coercive, collective refusals to deal.   If each lawyer could and did

decide individually whether or not to accept the higher fee, there can be no doubt that many would

want to take cases again — both out of duty and commitment, and to pay their bills.   (Unless they

 already have enough work, independent providers sell their services at marginal cost, not average

overhead.)   It is only due to the courage of a collective refusal to deal that the assigned counsel

are willing to risk taking no cases now — with the intention of recouping later with what they

themselves have called “deferred clients“.


Links to relevant news articles, along with my analysis of last year’s two-day

“strike,”, can be found in the following postings to my weblog, then called

ethicalEsq [now called f/k/a/..

 

  • Why the Bay State Bar Advocate Boycott is Illegal
  • Even Struggling Lawyers for the Poor Don’t Get Antitrust Immunity
  • Bristol County Bar Advocate Website Walks a Legal and Ethical Tightrope

  • [update, Aug. 15, 2004, In response to a sample Refusal of Appointment drafted by bar

    advocates and available at the Bristol County Bar Advocate website:]

     

    Some questions for bar advocates planning to refuse to take emergency assignments: 

     

    . . . 2.  If you’re going to refuse new cases on the basis of financial hardship, shouldn’t

    each individual attorney show:


    - whether taking the assignment would prevent the particular attorney from doing

    work for actual clients already represented, with realistic projections of the amount

    of attorney time available that would not otherwise be fee-generating.  The court

    deserves a good faith projection of lost opportunity costs (caused because actual

    clients could not be accepted or served).  If you have time available during your

    customary working hours, refusing an appointment causes more hardship than not

    taking it., doesn’t it? 

     

    - specific overhead figures for individual practices

     

    3.  You keep talking about the State’s fees not meeting your “overhead.”  Please be more specific

    about what expenses you include in such overhead, whether it is per-attorney overhead, and if your

    numbers pertain to practices of attorneys who typically take assigned counsel work (many of whom

    have no secretary or library and use a home office).  Of course, depreciation and similar expenses

    that do not involve actual outlay of money shouldn’t be counted (the original investment is reimbursed

    quickly through tax deductions from income).   Aren’t marginal costs of accepting appointment more

    relevant than overhead for lawyers who have excess capacity? 

     

    4.  What do you believe is the “market value” for criminal defense services?  According to

    MACAA’s Aug, 9, 2004 Press Release, “In Massachusetts, 80% of the business of criminal defense,

    and defending the poor, is controlled by the Commonwealth.”   If 80% of the criminal defense services

    in the State are provided at the assigned counsel rates (and the lower, per-hour wage of CPSC employees),

    the actual “market” fee is surely rather close to $30 to $40 per hour.  Another way of thinking about his: If

    the State were not paying for services to represent indigent defendants, how much would the indigents be

    paying you?  (From an economics or market perspecitve, are there just too many lawyers in your segment

    of the profession to support the fee levels you believe you deserve because you have law degrees?) 


    of ethical violations by the boycotting bar advocates:


    Mr. Crane, please consider this my informal ethics complaint against all bar advocates in Massachusetts

    who acted jointly in refusing to take new cases — especially the officials and members of Suffolk County

    Lawyers for Justice, whose 300+ members gave it immense coercive clout, and the Bristol County Bar

    Advocates.   [Bay State residents, taxpayers and attorneys are urged to go to the Massachusetts Bar

    Counsel Complaints Page for informatiion on lodging their own official complaint.]

     

    Of course, individual lawyers have the right to chose not to accept a case or client.   That is not

    what happened here.   Independent competitors decided to act jointly to pressure the Government

    into meeting their demands for immediate pay.   They intended to disrupt the court system and to

    scare political leaders into accepting their demands.  This was not mere First Amendment speech

    or lobbying — it was a group boycott supported by the joint refusal to deal with the “buyer” until

    demands were met.  The boycott was supplemented by activities meant to police or harrass other

    members of the group to assure their participation in the boycott.  

     

    This activity appears to fall clearly within the type of lawyer misconduct proscribed in Massachusetts

    Rule 8.4 (emphasis added):


    RULE 8.4 MISCONDUCT


    It is professional misconduct for a lawyer to:

    (a) violate or attempt to violate the Rules of Professional Conduct, knowingly

    assist or induce another to do so, or do so through the acts of another;

    (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness,

    or fitness as a lawyer in other respects;

    (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

    (d) engage in conduct that is prejudicial to the administration of justice 

    (h) engage in any other conduct that adversely reflects on his or her fitness to practice law.


    Without a doubt, Rule 8.4(d) has been violated, by intentional conduct highly prejudicial

    to the judicial process — and not just in one case, but across the entire system.   If Bar

    Counsel winks at this, Massachusetts can expect to be held up periodically by their criminal

    defense counsel.   On the other hand, disciplinary action will demonstrate that lawyers are

    not above the law — even when they are fighting (at least partially) for the rights of others. 

    Public denunciation of the tactics will prove that the Office of Bar Counsel is indeed working,

    in the words of its Mission Statement, “to protect the public from unethical conduct by lawyers

    and to preserve and enhance the integrity and high standards of the bar.”  

     

     

    - from will MACAA react like a guild to indigent defense report? (April 4, 2005) on opposition

    to increasing the number of public defenders, and on rejecting fee proposals as inadequate:


    [The pilot projects proposed by the Commission studying the Massachusetts


    situation] are, I believe, especially important, because:



    (1) They will help increase the ratio of private to public defense


    counsel to levels meeting national standards.


     


    (2) They will help assure that future attempts at coercive joint boycotts


    aimed at increasing fees (or decreasing PDs) will be less effective.


    The recent landmark American Bar Association report on the nation’s indigent

    defense system, “Gideon’s Broken Promise” (Feb. 2005) concluded that
    defendants are more likely to receive consistently competent representation in

    a system with fulltime public defenders, having statewide monitoring and funding,

    than from situations that rely heavily on assigned counsel.  The Study specifically





    “Although national standards recommend the use of public defender


    programs wherever the population and caseload are sufficient to


    support such organizations, in many areas of Massachusetts, there is


    almost complete reliance on private assigned counsel, especially in


    misdemeanor and juvenile delinquency cases.”


    The Gideon Report [at 27]  favorably quotes one witness who explained “we

    have to overcome the private defense lawyer’s fear that a public defender office

    will result in a loss of business.”   That fear is clearly widespread in Massachusetts,

    as it was throughout Upstate New York, for many years, where assigned counsel

    fought hard to prevent the establishment of public defender offices.  (The Mass.

    assigned counsel are also complaining about the Report’s proposal to limit their

    yearly hours to 1500 .)

     

    There is already chatter on the Massachusetts assigned counsel ListServe about the

    pilot projects being merely a means of  “control.”  The Massachusetts public, Courts

    and Legislature — having been subjected to group boycotting by the bar advocates,

    (who now understand the power of their concerted coercion and seem willing to hint at

    using it again) — have every right to attempt to control the system.   As I said on Saturday,

    the Commission’s proposals appear to take into account the legitimate goals of all the

    stakeholders.

     

    . . .

    MACAA says it was formed “to ensure that the highest quality of legal


    representation is given to each and every person entitled to court appointed


    counsel regardless of ability to pay.”   It will be interesting to see whether


    it chooses to focus on the goals of a guild:  securing higher fees and assuring


    work for its members (through opposition to the increased use of public defenders,


     which would help the State comply with national standards for indigent defense)  or


    whether MACAA chooses good faith cooperation with state leaders to build an


    indigent defense system that will work effectively and efficiently for their clients,


    the courts and the public.




    Supplement (July 26, 2005): National standards for indigent defense favor fulltime public defenders, whenever the population and caseload can support them. (Gideon’s Broken Promise, ABA, 2005.)     In Massachusetts, 95% of indigent defense is handled by private assigned counsel. [See the 2005 Mass. Study Commission Report, at pp. 9 - 10.]  Nevertheless, the bar advocates have rabidly opposed the Study Commission’s proposal to have test projects, which would hire more public defenders in the rural counties where the problem is most extreme, and to move toward a more appropriate ratio PDs to BAs — because they do not want to lose the income.



    In Hampden County virtually all district court cases are handled by bar advocates.  According to MACAA, the average panel member spends 85% of his or her time on bar advocacy work, in Bristol County it’s 77%. (per Bristol County Bar Advocates chart)


    In its section on Massachusetts, the recent landmark American Bar Association report on the nation’s indigent defense system, “Gideon’s Broken Promise: Massachusetts” (Feb. 2005) specifically noted as a problem in the Massachusetts system that:



    “Although national standards recommend the use of public defender programs wherever the population and caseload are sufficient to support such organizations, in many areas of Massachusetts, there is almost complete reliance on private assigned counsel, especially in misdemeanor and juvenile delinquency cases.”

    Despite this statement, bar advocate spokespersons continuously say that the ABA Gideon Report praised the Massachusetss system. [See., e.g., quote from MACAA press secretary Nancy McLean, to the Lowell Sun Times.] The Gideon Report actually praised the “approach” used in Massachusetts of training the assigned counsel and monitoring them. The Report stated that the basis for their conclusion was the testimony of one witness — Bill Leahy, who is in charge of CPSC, the agency that oversees the bar advocate system, and has the task of training and monitoring the assigned counsel. [See fn. 401 of the full Gideon Report.]

     

    The Massachusets Study Commission noted that when the system was originally set up:


    “The idea was that representing indigent persons would allow private attorneys to supplement their income while simultaneously building a private practice.35   Moreover, as noted in Lavallee, the work voluntarily undertaken by private attorneys willing to accept CPCS cases is in the nature of public service because the source of compensation is the ‘limited public treasury’.36

    “There has been, however, a gradual yet persistent movement away from that original intent, as an ever increasing number of private attorneys derive all or a significant part of their income from CPCS cases. As more and more private attorneys have come to rely almost exclusively on CPCS cases for their livelihood it is understandable how this group has come to feel underpaid for their services. Such feelings, however, overlook the fact that the hourly rates paid to CPCS private attorneys were never intended to be sufficient to sustain a private practice.”

    As MyShingle‘s Carolyn Elefant recently explained, responding to bar advocate opposition to a cap of 1400 hours per year per panel member, Court Appointed Work Is Not Supposed To Be A Full Time Job! (July 23, 2005).  I also agree with her Comment at the Andrew Winters Blawg, that – when using an assigned counsel panel as part of the indigent defense system — we can expect better attention to indigent cases from lawyers with self-sustaining law practices who take indigent work out of a sense of public service, and from less experienced lawyers who take the cases to gain valuable experience.  When assigned counsel spend the vast majority of their time on indigent work, but are still attempting to find more lucrative private clients, they will surely give the private client special attention.

     

    f- rom Bar & Guild (April 26, 2005):


    You might have thought that the The Massachusetts Association of Court  wolf dude neg

    Appointed Attorneys (MACAA) and MBA would have been thrilled with the

    Report issued earlier this month by a special commission formed to study the

    “indigent defense crisis” in the State.  The Report recommends a 50% increase

    in fees over the next three years (on top of a 25% increase received this year),

    and the establishment of two pilot projects that would use more public defenders

    in two rural counties, helping to bring Massachusetts closer to national standards,

    which advise against the almost total reliance on private attorneys for indigent

    defense that now exists in those and other Massachusetts counties. (see our post

    on the Report, and on MACAA’s response; and MACAA press release, April 22, 2005))

     

    Sadly, you’d be wrong.  Both MBA and MACAA have instead called for immediate   

    implementation of the full pay hike (MACAA wants even more, including interest, 

    for a total of a 113% increase in the past two years) and for full rejection of the pilot

    concept (see MBA press releaseMass. Lawyers Weekly, April 11, 2005).  The

    answer to my question “will MACAA react like a guild to indigent defense report?” is 

    clearly “yes’.   Saving private counsel jobs and increasing their fees will clearly come

    before the public interest or the smooth operation of the justice system.




    On April 17th, MACAA’s board voted unanimously that rates should be “fully

    implemented now” and that the pilot programs should be rejected.  In paragraph

    after paragraph, MACAA President Thomas Workman whines that “No professionals

    in Massachusetts have ever had pay rates ‘phased in’” (and nor have assigned counsel

    in any other state or nation!).  Of course, Workman doesn’t mention the size of those

    other pay hikes or the fiscal situation (imagine giving policemen or judges, or independent

    snow plow operators a 67% increase in one year).   As for the pilot projects that would use

    state-employed public defenders MACAA’s Board states:


    “Pilot programs are only needed to collect data, and this is not
    necessary. Either the programs are being implemented for some
    ulterior purpose
    , or they are not needed. In either case, the state
    should not waste money on unnecessary pilot programs.”

    [if/when available online, I will supply a link]

    More to the point, MACAA President Workman vows


    MACAA will not ‘sell out’ court appointed attorneys on any panel”

    by recommending pilot panels.”  


     

    - from mass. lawyers still looking out for #1   (Nov. 29, 2004)


    The Massachusetts bar advocates are continuing to put put their own financial interests above the law,

    their ethical duties and the needs of their clientele:



    • First, they held a practice statewide boycott in 2003, shutting down courts and showing their destructive power;


    • then, they used a website to facilitate their joint action to raise their fees; 


    • in July, they orchestrated statewide illegal group boycotts last summer, to force the State to pay them higher fees — virtually closing down a number of courts and forcing the release of some prisoners;



    • in August, they insisted that a coerced 25% pay hike passed by the Legislature was insufficient and refused to return to work;




    • next, they screamed and whined when desperate judges used emergency powers to appoint lawyers to indigent defendants, in order to stem the crisis created by the boycotting bar advocates;




    • predictably, they intensified their fee boycott and resisted emergency recruitment, including drafting sample Refusal Motions for lawyers to use to avoid service



    • today, The Massachusetts Association of Criminal Defense Lawyers, the Massachusetts Association of Court Appointed Attorneys, and three Springfield lawyers filed a lawsuit asking the full court to reverse the Interim Order by Justice Francis X. Spina that upheld the emergency appointment power 







     

     

    the mountain moon              
    gives the blossom thief
    light

     

    - haiku of Kobayashi ISSA, translated by D.G. Lanoue

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