Lawyers for poor feel slap from US

By Kathleen Burge, Globe Staff, 10/17/2003

The Federal Trade Commission has launched an investigation into the state's bar advocates, probing whether the private lawyers who represent poor defendants in criminal cases violated antitrust laws during a protest last summer.

In mid-August, dozens of lawyers around the state refused to take new criminal cases, saying the state hadn't paid them for past work. The protest ended in a day and a half, after lawmakers quickly approved $15.4 million for back payments to the lawyers.

The unusual FTC investigation -- begun late last month by the agency best known for scrutinizing multibillion-dollar corporations -- angered and surprised some prominent lawyers in Boston.

"I think this is politically motivated because I don't really see a regulatory purpose to an FTC investigation," said Randy Gioia, a cochairman of the nonprofit group that provides the lawyers, who are called bar advocates, in Suffolk County.

The FTC would not comment yesterday. But in a letter to the lawyers, the agency said it is investigating whether the group violated the Federal Trade Commission Act, designed to protect consumers from unfair or monopolistic business practices, by agreeing to withhold lawyers from poor people. The bar advocates are the only private lawyers who represent indigent defendants in Massachusetts.

The commission does not confirm whether investigations have been opened, said FTC public affairs specialist Mitch Katz. If the commission determines that illegal activity took place, the FTC can sue the alleged perpetrators, seeking court orders prohibiting future activity and demanding the return of ill-received profits.

The breadth of the investigation is unclear. Although a letter announcing the probe was sent to Gioia, the FTC also requested information about other bar advocates in Massachusetts.

Suffolk Lawyers for Justice, which is made up of 335 bar advocates, is fighting the investigation and refused to turn over papers the FTC had requested by Wednesday. Instead, a lawyer for the group wrote the FTC, questioning the agency's authority to open the case and calling the probe a "broad ranging fishing expedition into protected legal activities."

"In short, the requests . . . appear to constitute a wholly inappropriate and illegal incursion into protected political activities, strategy and commentary," wrote Joseph L. Kociubes of Bingham McCutchen, former president of the Boston Bar Association. His firm is representing the bar advocates for free.

The FTC had asked officials at Suffolk Lawyers for Justice to turn over all documents since Jan. 1, 2001, that pertain to the bar advocates' refusal to take new cases and their attempts to receive payment for past work, as well as efforts to seek higher reimbursement from the state. The lawyers, who receive hourly fees of $30 or $39 for most cases, are paid the third-lowest rates in the country.

The state's Committee for Public Counsel Services is responsible for representing criminal defendants who cannot afford lawyers. But because the group has only 115 staff attorneys, it contracts with groups in counties around the state to provide bar advocates -- private lawyers who take court-appointed cases -- to handle 90 percent of its cases.

John Salsberg, cochairman of Suffolk Lawyers for Justice, noted that although the group's board of directors voted not to assign lawyers to cases, attorneys could still choose to take them. In Dorchester District Court, for example, a Brockton lawyer agreed to represent the day's defendants after other lawyers refused.

"The lawyers themselves decided that they weren't going to come and take new cases," Salsberg said.

Bar advocates fear the investigation may discourage lawyers from representing poor defendants. Among the documents the FTC has requested is a list of the names and addresses of Suffolk Lawyers for Justice members.

"We're not giving those documents to the FTC unless our lawyers tell us to or there's a court order," Gioia said.

Renee M. Landers, the president of the Boston Bar Association, said she could not discuss the FTC investigation in detail but said her group supported the bar advocates' right to get paid for their work. She, too, worried that the investigation could reduce the number of lawyers willing to represent the indigent.

"It does add to the hassle factor of taking these cases," she said. "The added aggravation of having to be involved in an investigation like this could have the effect of discouraging people. And that would be unfortunate."

Lawyers for the poor also fear another budget shortfall, worse than the last, will again leave them unpaid. Governor Mitt Romney reduced the budget for their reimbursements by $13 million in the current fiscal year's budget, and lawyers expect the money to run out during the winter.

Kathleen Burge can be reached at kburge@globe.com