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FTC v. Superior Court Trial Lawyers Ass'n

Supreme Court of the United States

October 30, 1989, Argued ; January 22, 1990, 1 Decided

No. 88-1198


 [*414]  [***860]  [**770]    JUSTICE STEVENS delivered the opinion of the Court.

 Pursuant to a well-publicized plan, a group of lawyers agreed not to represent indigent criminal defendants in the District of Columbia Superior Court until the District of Columbia government increased the lawyers' compensation. The questions presented are whether the lawyers' concerted conduct violated § 5 of the Federal Trade Commission Act and, if so, whether it was nevertheless [****8]  protected by the First Amendment to the Constitution. 3

 [**771]   I

The burden of providing competent  [***861]  counsel to indigent defendants in the District of Columbia is substantial. During 1982, court-appointed [****9]  counsel represented the defendant in approximately 25,000 cases. In the most serious felony cases, representation was generally provided by full-time employees of the District's Public Defender System (PDS). Less serious felony and misdemeanor cases constituted about  [*415]  85 percent of the total caseload. In these cases, lawyers in private practice were appointed and compensated pursuant to the District of Columbia Criminal Justice Act (CJA). 4

Although over 1,200 lawyers have registered for CJA appointments, relatively few actually apply for such work on a regular basis. In 1982, most appointments went to approximately 100 lawyers who are described as "CJA regulars." These lawyers derived almost all of their income from representing indigents. 5 In 1982, the total fees paid to CJA lawyers amounted to $ 4,579,572.  [****10]  

 In 1974, the District created a Joint Committee on Judicial Administration with authority to establish rates of compensation for CJA lawyers not exceeding the rates established by the federal Criminal Justice Act of 1964. After 1970, the federal Act provided for fees of $ 30 per hour for court time and $ 20 per hour for out-of-court time. See 84 Stat. 916, codified at 18 U.S.C. § 3006A (1970 ed.). These rates accordingly capped the rates payable to the District's CJA lawyers, and could not be exceeded absent amendment [****11]  to either the federal statute or the District Code.

Bar organizations began as early as 1975 to express concern about the low fees paid to CJA lawyers. Beginning in 1982, respondents, the Superior Court Trial Lawyers Association (SCTLA) and its officers, and other bar groups sought to persuade the District to increase CJA rates to at least $ 35 per hour. Despite what appeared to be uniform support for the bill, it did not pass. It is also true, however, that nothing  [*416]  in the record indicates that the low fees caused any actual shortage of CJA lawyers or denied effective representation to defendants.

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493 U.S. 411 *; 110 S. Ct. 768 **; 107 L. Ed. 2d 851 ***; 1990 U.S. LEXIS 638 ****; 58 U.S.L.W. 3468; 58 U.S.L.W. 4145; 1990-1 Trade Cas. (CCH) P68,895



Disposition:  272 U.S. App. D. C. 272, 856 F.2d 226, reversed in part and remanded.


boycott, lawyers, per se rule, First Amendment, market power, respondents', anti trust law, antitrust, condemnation, cases, price-fixing, governmental interest, Sherman Act, regulation, prices, per hour, anticompetitive, rates, communicate, concerted, rights, indigent defendant, appointments, competitors, regulars, attract, courts, restraint of trade, incidental, immunized

Antitrust & Trade Law, Regulated Practices, Trade Practices & Unfair Competition, General Overview, Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, Sherman Act, Price Fixing & Restraints of Trade, Horizontal Refusals to Deal, Regulated Industries, Higher Education & Professional Associations, Exemptions & Immunities, Noerr-Pennington Doctrine, Bill of Rights, Expressive Conduct, Per Se Rule & Rule of Reason, Practices Governed by Per Se Rule, Boycotts, Sherman Act, Per Se Rule Tests, Manifestly Anticompetitive Effects