20 « August « 2003 « f/k/a archives . . . real opinions & real haiku

August 20, 2003

Bar Counsel Gives Too-Hasty Absolution to Boycotting Bar Advocates

Filed under: pre-06-2006 — David Giacalone @ 5:59 pm

It sure is easy to get your sins forgiven in Boston, at least if you’re a lawyer (or a priest) — no confession or penance required. Boycotting lawyers were still trading their sneakers for dress shoes when Massachusetts Bar Counsel Daniel C. Crane indicated they would not be penalized for their group refusal to take new assignments of criminal cases. Their misnamed “strike” only took two days to have its intended effect — sufficiently throwing the judicial system into chaos to force the Legislature and Governor to immediately ensure payment for Fiscal ’03 services.

According to the Boston Globe, Bar Counsel Crane pointed out that “Lawyers don’t have an obligation to take on any new case” — they simply can’t abandon a case once they accepted it. (Boston Globe article, 8/20/03)

Yes, ethicalEsq is always ranting about lax lawyer discipline. But, this instance of unethical conduct by attorneys — so open and coercive — especially needs to be addressed by Bar Counsel to protect the public from the future use of the same tactics (group boycotts or threats to use them again). Before the back-pay issue arose in July, bar advocates were already planning to stop taking cases in the fall to force higher fees. This quick victory can only increase the likehood of future boycotts or boycott threats.

While supporting an increase in higher assigned counsel fees, as the “Cost of Justice,” the Boston Globe editorial page noted today (emphasis added):

Some of the protesting attorneys were no better than Romney or the legislators at forgetting their poor clients caught in the crossfire this week. Indigent defendants appeared in courtrooms across the state without benefit of legal representation. Some waived their rights under questionable circumstances. One attorney called another who decided to help out a “scab.” It was the right cause but an unfortunate tactic.

Likewise, I support significantly higher assigned counsel fees. But, I cannot support the use of such coercive tactics, which clearly violate the antitrust law (see posting, July 17, 2003), disrupt the judicial process, put clients and potential clients at risk of losing their rights, and mock the rule of law.

The state bars to which I am a member have rules similar to Massachusetts Rule 8.3, which requires that

“(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the Bar Counsel’s office of the Board of Bar Overseers.”

So, 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.”

When absolution comes too cheaply for the Watchdog’s friends, who’s going to protect the sheep from the wolves?

Update (8/21/03): According to the Taunton Daily Gazette, lawyers were beginning to accept new assigned cases at the local district court, but the attorneys are already saying “they may have to strike again next spring“, when the State is expected to run out of appropriated funds for their services. (8-21-03, by Gazette staff writer Scott Dolan). It’s always easier to use coercive tactics the second time — especially if they were successful. Even without being verbalized, the threat of a repeat hangs over the head of the target. Without firm disciplinary action against them for their group refusal to take new cases, the bar advocates of Massachusetts will become chronic bullies.

Update (Aug 5, 2004): My worse fears have come true. As I said today in a short commentary: Sadly, Bar advocates (assigned counsel) in Massachusetts are continuing their unlawful and unethical collective boycott. Click here to see ethicalEsq’s letter to the editor.

District Court Chief Justice Lynda Connolly told the Boston Herald, “It is disturbing to me that the attorneys would put their personal interests in terms of compensation ahead of the interests of their clients.”

Comments (1)