Below is a letter (never published) to the editor that I submitted to the Boston Herald on Aug. 5, 2004, concerning the collective refusal to deal by Massachusetts “bar advocates” and other assigned counsel for indigent defendants; links to related materials follow:
To the Editor:
It appears that no lawyer in all of Massachusetts has the courage and integrity to stand up and tell the Bar Advocates:
“Your group boycott is clearly unlawful and unethical. Go back to serving the interests of your clients, rather than your pocketbooks. You’ve received a 25% pay raise, after only one session of lobbying. Declare victory and prepare for further lobbying next year. Stop mocking justice and your ethical duties by continuing to violate the antitrust law, disrupt judicial processes, and injure your clients.” As independent sellers of legal services in private law practices, the assigned counsel are not permitted under federal or state antitrust laws to act together to force a buyer of their services (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. The Court rejected each of the excuses 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 FTC filed a complaint and accepted a consent decree for similar conduct by assigned counsel in Clark County, WA.
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 mob-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”.
If any other group of professionals tried this form of coercion, the state antitrust enforcers would be chomping at the bit to prosecute — e.g., if doctors had a joint boycott to increase Medicaid fees. Lawyer sympathy for other lawyers cannot justify a failure to act now by Attorney General Tom Reilly and Bar Counsel Daniel Crane.
s/David A. Giacalone (Member NY, DC bars, retired)
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