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Commonwealth of Massachusetts

November 2004

Five Years of ACAP

Anne Kaufman

Five years ago there was no Attorney and Consumer Assistance Program (ACAP) in the Office of the Bar Counsel in Massachusetts. Although some informal screening was done, when an individual called asking for a complaint form, one was generally sent. Under this system, in fiscal 1998 the Office of Bar Counsel opened 2349 complaints against attorneys for investigation. With few exceptions, each was opened in the name of the attorney and a copy of the complaint sent to the attorney for a written response.

While unwarranted complaints were subsequently closed without disciplinary action, the complaint remained in the name of the lawyer in the Office of the Bar Counsel database for at least six years. Information concerning the closed complaint was not public, but was reportable in the variety of questionnaires that attorneys complete, including malpractice insurance renewals or applications for judgeship and bar admission in other jurisdictions. At the same time, when the file was closed, frequently all the complainant received was a letter explaining that the matter would not be pursued further, but not why. In some instances the filing of the complaint had the unintended consequence of the lawyer’s withdrawal from the representing the complainant when all the complainant wanted was information.

As of March 1, 1999, all this changed. On this date, the Office of the Bar Counsel established ACAP, its central intake system. The goal of the Office of the Bar Counsel in creating ACAP was to transform the intake procedures of the office through a sophisticated complaint screening process that included consumer and attorney education, as well as mediation and informal resolution of minor problems between client and attorney. It was hoped that a large number of consumer legal problems, if identified early, could be resolved quickly, and to the satisfaction of the parties, without filing a disciplinary complaint. And where, under the old system, it might take several months to address concerns, now problems would be resolved in a matter of days. As a result, potential complainants would receive timely personal attention and (optimally) solutions to their problems. At the same time, lawyers would be spared having to provide lengthy written responses to minor problems not rising to the level of disciplinary matters.

Fully operational since November 1999, today ACAP screens all written and telephone inquiries from consumers to determine whether the problem involves minor misconduct appropriate for resolution without formal investigation. Wherever possible the ACAP staff discusses the problem in detail with the client or other caller. ACAP frequently then calls the lawyer in an effort to arrive at a mutually satisfactory solution to the complaint.

Where the professional relationship is generally sound and the case is ongoing, callers are often hesitant to have ACAP intervene. In these instances, ACAP assists the client in understanding the parameters of the attorney-client relationship and the nature of the misunderstanding without contacting the attorney. To facilitate communication between the parties, ACAP suggests questions the client may want to ask the lawyer and more effective ways of approaching the lawyer for information. Similarly, when talking to lawyers, ACAP recommends ways to avoid future client complaints and effectuate resolution of disputes when they occur.

ACAP is now well established in the Office of the Bar Counsel and is nationally recognized as an effective model for intake and screening of bar discipline complaints. It succeeds in the informal resolution of more than 75% of the over 6000 matters it handles annually. Although not exhaustive, typical assistance provided by ACAP includes obtaining itemized legal bills, status reports, and the return of files and unearned retainers; discussing reasonable expectations and timetables in legal cases; and making referrals to lawyer referral, fee dispute resolution services, and legal services organizations.

This effort has happily resulted in a dramatic reduction in the number of complaints opened against lawyers in the Office of the Bar Counsel, from the 2349 complaint files in fiscal 1998 to 1081 in fiscal 2004. This decrease is more remarkable in light of the 17% increase in the number of lawyers registered for active practice in Massachusetts during the same period. That number rose from 40,873 in fiscal 1998 to 47,837 fiscal 2004.

Given the large volume of inquiries ACAP handles, there has nonetheless been surprising consistency over the years as to the legal areas from which complaints arise. Without fail, domestic relations cases generate the most complaints. Five years in a row, family law concerns constituted more than 15% of all matters screened by ACAP. Similarly, each year civil litigation (non motor vehicle injuries) has been the second largest category, comprising 11-15% of all matters. Complaints concerning real estate, motor vehicle personal injury, and criminal matters each constituted 8-12% of ACAP’s cases. And contacts about trust and estate matters have accounted for approximately 7.5% of all ACAP matters.

Year after year there has also been consistency in the nature of the problems clients experience that motivate contact with the Office of the Bar Counsel. Cumulatively, complaints alleging lack of diligence, failure to return telephone calls, or incompetence have annually accounted for 24-27% of calls to our office. The importance of returning client calls cannot be overemphasized. Nothing angers a client more than not being called back by a lawyer. On the other hand, little is more appreciated by the client than the knowledge that the lawyer is thinking about the case and is respecting the professional relationship that has been established. Mass. R. Prof. C 1.4 requires that lawyers promptly reply to reasonable requests for information and keep clients informed about the status of the case. The numbers reveal that simple expedients on the part of the lawyer—largely issues of improved communication— are likely to minimize client complaints to the Office of the Bar Counsel.

Complaints about lack of diligence often relate to cases no lawyer should have undertaken in the first place. A lawyer does a client no favor by accepting a case that should never see the light of day. It is wisest to be honest from the start and decline the case. Similarly, when investigation reveals that a case is not viable, the lawyer must inform the client clearly, in writing, and while there is ample time for the client to consult another lawyer, of this negative conclusion and any intention to withdraw.

A solid 8–10% of ACAP calls involve fees. These include not only the garden-variety fee dispute, but also delays in providing itemized bills and returning the unearned portion of a retainer. Amendments to Mass. R. Prof. C. 1.15, effective July 1, 2004, impose an unequivocal obligation upon the attorney to provide the client with an itemized bill at or before the time the lawyer withdraws funds from a trust account to pay for services rendered. The bill must include a description of the services provided, the amount and date of any withdrawal of fee, and a statement of the balance of retainer remaining. Furthermore, although lawyers are not required to maintain flat fees in a trust account, the lawyer is obligated to justify retention of such a fee pursuant to Mass. R. Prof. C. 1.5 (prohibits a clearly excessive fee) and return any unearned portion pursuant to 1.16(d) should the client object.

ACAP provides a public service to consumers and lawyers alike in resolving minor disciplinary complaints outside of the disciplinary process in an effective and salutary manner. Continued success of ACAP depends on full cooperation of the bar. Whatever the merits of the client’s assertions, it is always preferable to resolve these issues swiftly and appropriately. Resolution will most likely occur when the lawyer recognizes that the primary goal of the client is to obtain the lawyer’s attention, not the lawyer’s ticket, and accepts at least partial responsibility for the problem. It is our hope that ACAP will continue to serve a constructive role in facilitating a positive relationship between clients and lawyers and in educating both as to their respective rights and responsibilities.

Anne Kaufman is an Assistant Bar Counsel in the Office of the Bar Counsel and Director of the Attorney and Consumer Assistance Program.

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