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Commonwealth of Massachusetts


November 2000

ACAPital year
Report on the B.B.O.'s attorney and consumer assistance program

by
Anne Kaufman

In the June 1999 Bar Overseer column, the Office of Bar Counsel introduced the bar to its newly established central intake division, the Attorney and Consumer Assistance Program (ACAP). ACAP began answering telephone inquiries from consumers on March 1, 1999 and became fully operational in mid-November of that year when, in addition, it began to screen letters of complaint. With the completion of its first fiscal year (9/1/99-8/31/00), ACAP has become an essential part of the functioning of the Office of Bar Counsel.

The goal of the Office of Bar Counsel in creating ACAP was to transform the intake procedures of the office through a sophisticated complaint screening process which includes 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 resorting to disciplinary investigation. And where, under the old system, it might take several months or more before a response to a grievance was received from the attorney or a concern was resolved, problems would now be addressed in a matter of days. As a result, potential complainants would receive timely personal attention and (optimally) solutions to their problems. In addition, lawyers would be spared having to provide lengthy written answers on minor problems not rising to the level of disciplinary matters, often including minor neglect, failure to return clients' files or calls, delayed reimbursement of the unearned portion of a retainer, minor conflicts of interest, and certain disputes between counsel.

Based on ACAP's first year, these goals have been reached with flying colors. In fiscal 1999, 2262 files were opened against attorneys. In fiscal 2000, 1570 were opened. Fiscal 2000 thus saw a decrease by 692 in the number of complaints opened in the Office of Bar Counsel.

More critically, ACAP had contact during fiscal 2000 with 6620 potential complainants, an average of more than 550 individuals each month. The ACAP staff issued forms for filing complaints with the Office of Bar Counsel in 28% of the cases. Another 15% of the callers were able to work out their problems without ACAP assistance. ACAP resolved the balance of inquiries in a variety of ways, including discussion with clients of what would be reasonable expectations and timetables in the processing of legal cases; assistance in obtaining the return of files or in securing itemized bills, status reports, or other information; and referral to legal services and organizations, legal referral agencies, or fee dispute resolution services.

Domestic relations cases were the subject of the greatest number of inquiries to ACAP, with real estate, personal injury, criminal cases, and trusts and estates also representing significant causes of consumer concern.

The ethical issue most frequently raised in inquiries to ACAP is lack of diligence on the part of the lawyer. In many instances, ACAP was able to answer the caller's needs by ascertaining the status of the case and reconnecting the lawyer and the client. In this regard, ACAP's experience confirmed the truism that the primary cause for complaints is the lawyer's failure to return the client's telephone call or letter. The importance of this simple courtesy cannot be overly stressed. Nothing angers a client more than not being called back by a lawyer who has been paid the client's hard-earned money. On the other hand, little is more appreciated by the client than the knowledge that the lawyer is thinking about the case and respecting the professional relationship that has been established.

Complaints about lack of diligence also often claim that the lawyer has not worked on the client's case. In these matters, ACAP has frequently been successful in sounding the alarm that makes the lawyer realize that the time has come to place the file on the front burner. The client also is satisfied because securing successor counsel may have been difficult and the case has begun to receive immediate attention.

Other types of matters in which ACAP has been involved in the past year include fee disputes and disagreements over client files, either between client and attorney or attorney and attorney. As to fee issues, attention is called to M.R.Prof.C.1.5 (b), requiring that the client be advised of the basis of the fee at the outset of the representation, preferably in writing. ACAP's experience shows that clear fee agreements, periodic itemized bills, and (when a dispute cannot be resolved) timely agreement to submit the matter to fee arbitration would in almost every instance have prevented a complaint or ACAP inquiry. As to issues involving the turnover of files, the key to avoiding complaints is adherence by attorneys to M.R.Prof.C.1.16 (d) and (e), which ultimately mandate the return of the client file regardless of payment issues if failure to do so would prejudice the client unfairly. Along the same lines, lawyers involved in firm breakups or other disputes with successor counsel need to insure that clients are not caught in the middle and that the clients' directives as to who should have the file are followed.

ACAP frequently receives complaints from stenographers, expert witnesses and other third parties who have been hired but not paid by the lawyer for their services. Although these problems generally are not within the jurisdiction of the Board of Bar Overseers unless a capias or contempt order issues against the lawyer after a civil judgment, ACAP as a courtesy will alert the lawyer to the initial inquiry and suggest that the lawyer may wish to resolve the dispute before it becomes a disciplinary matter.

Lawyers contacted by ACAP about client concerns have to date provided a generally high level of cooperation. Continued or increased success will require full cooperation of the bar. ACAP will leave two messages for a lawyer. If no return call is received within a reasonable time, a complaint form will be sent to the caller for filing. ACAP staff will identify itself as calling from ACAP or the Attorney and Consumer Assistance Program of the Office of the Bar Counsel. Lawyers therefore may wish to advise their staffs to note this affiliation on any message and to make sure that the message is received by the attorney.

Lawyers should also understand that a call from ACAP often reflects a client's request for help, not the client's desire to get the lawyer in trouble. And whatever the merit of the client's assertions, cases are resolved most swiftly and successfully when the lawyer recognizes that what is being offered is a golden opportunity to rectify a problem often, at least in part, of the lawyer's making. Assuming the complaint is within Bar Counsel's jurisdiction, matters in which the lawyer is unresponsive or uncooperative with ACAP will result in the opening of a traditional complaint with the Office of Bar Counsel.

In the next year, the Office of Bar Counsel plans to take steps to make the public more aware of the availability of the services of ACAP. Comments and suggestions from the bar are always welcome. For additional information concerning the program, please call Anne Kaufman at (617) 728-8701 or view the ACAP homepage at http://www.state.ma.us/obcbbo/.



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