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Commonwealth of Massachusetts


Notice

The Board of Bar Overseers and the Office of Bar Counsel
Invite Comments on Proposed Revisions to
Supreme Judicial Court Rule 4:01 and the Rules of the Board of Bar Overseers

The Board of Bar Overseers and the Office of Bar Counsel invite comments on proposals to revise Supreme Judicial Court Rule 4:01 and the Rules of the Board of Bar Overseers. The amended rules, in redlined as well as clean copy format, can be found below and at www.mass.gov/courts/sjc/rules-announcements.html. The Board and Bar Counsel welcome all comments and will provide the comments to the Supreme Judicial Court and make further recommendations after reviewing the submissions.

Comments should be submitted by November 15, 2008 and directed to Michael Fredrickson, General Counsel, Board of Bar Overseers, 99 High St., Boston MA 02110. Comments may also be sent to: m.fredrickson@massbbo.org.

The genesis of these amendments is a letter dated April 30, 2007 from the Supreme Judicial Court requesting that the Board of Bar Overseers and the Office of Bar Counsel provide proposals for implementation of those recommendations the Court indicated it was inclined to adopt from the October 2005 American Bar Association Report on the Lawyer Regulation System of Massachusetts. The full report of the ABA committee can be found online at http://www.mass.gov/courts/abareport06.pdf.

The following is a synopsis of the significant proposals for amendment.

General administrative changes

1. The proposal gives Bar Counsel discretion not to open files on frivolous complaints, subject to notice to the complainant of the right to request review of Bar Counsel’s decision by a member of the Board. Supreme Judicial Court Rule 4:01, §§ 7(1),(2), 8(1); Board rules §§ 2.1(b), 2.8(a) The proposal also gives Bar Counsel discretion to close a file after diversion to an alternative educational, remedial, or rehabilitative program. Supreme Judicial Court Rule 4:01, §§ 3, 7(b) and 8(b); Board rules §§ 2.7 and 2.10

2. The proposal recommends eliminating the distinction in § 2.4 of the Board rules between so-called “B” files (“grievances”) and “C” files (“formal complaints”). The term “grievance” has been eliminated and every statement of alleged misconduct throughout the rules is denominated as a “complaint”.

3. The proposal adds the concept of diversion to an alternative educational, remedial or rehabilitative program as an option for disposition of a complaint. Supreme Judicial Court Rule 4:01, §§ 3, 7, and 8; Board rules §§ 2.7, 2.10

Admonitions

4. The proposal eliminates the need for a lawyer to appear in person for an admonition and otherwise simplifies administering an admonition. Under the proposal, the admonition is effective upon written notice of the admonition mailed to the Respondent-lawyer. A Respondent seeking to contest the admonition is required to notify the Board within fourteen days of the date of service that he or she demands a hearing. The demand must include a detailed statement of objections to the facts and violations set forth in the admonition summary, as well as any matters claimed in mitigation. Supreme Judicial Court Rule 4:01, § 8(2)(b); also Board rules § 2.11.

5. The revisions propose an accelerated hearing process if a Respondent demands a hearing on an admonition. Bar counsel’s summary and the Respondent’s statement of objections and mitigation would be filed with the Board as pleadings, and the case would be assigned to a special hearing officer for an expedited hearing under new § 8(4) of Supreme Judicial Court Rule 4:01. The Board’s notice of assignment of a hearing officer and hearing date for an expedited hearing would also include an order to the parties requiring exchange and filing of witness lists and exhibits. Expedited matters will proceed to hearing promptly, without a mandated prehearing conference and the right to request discovery depositions, which are reserved for formal proceedings. The proposal also eliminates the filing of proposed findings and briefs following expedited hearings except for good cause. At the conclusion of the hearing, and similar to Rule 18(H) of the ABA Model Rules of Lawyer Disciplinary Enforcement, the hearing officer would have the option of imposing an admonition, recommending dismissal, or remanding the matter for filing of formal proceedings. Supreme Judicial Court Rule 4:01, § 8.4; also Board rules §§ 2.12, 3.13(b) and 3.43.

6. The revisions also propose limitations on appeals related to admonitions. First, it is proposed that Bar Counsel be permitted to appeal a modification by the reviewing Board member of a recommendation of an admonition only to the Board chair, eliminating further appeals to the Board or the Supreme Judicial Court. Second, it is proposed that, following an expedited hearing, the parties be permitted to appeal the hearing officer’s recommendation to the full Board but that there would be no right thereafter to demand the filing of an information if the hearing officer’s recommendation is for dismissal or admonition. If, however, formal proceedings are instituted -- following either the hearing officer’s decision or appeal to the Board -- the parties’ rights of appeal after that formal hearing would be the same as after any other formal proceeding. Third, it is proposed that appeals to the Board from expedited hearings be on the papers only, without oral argument. Supreme Judicial Court Rule 4:01, § 8(1), (2), (4); Board rules §§ 2.9,(c), 3.50, 3.57.

Formal proceedings

7. In order to facilitate the hearing process on formal petitions for discipline, the proposal would a) amend SJC Rule 4:01, § 2, to eliminate disciplinary districts, b) amend § 3.20 of the Board rules to provide that the office of the Board is the default location for hearings unless the Board specifies otherwise, c) amend Board rule § 3.42 to provide that closing arguments generally must take place directly following the hearing, and d) amend § 3.43 of the Board rules to provide that, except for good cause, post-hearing paper in formal proceedings must be filed within 30 days following receipt of the final transcript or such shorter time period as is set by the chair or hearing officer.

8. The proposal makes the following recommendations for changes to the Board rules relating to prehearing motions and prehearing conferences

a. Amend § 3.18(a) to provide that

  • prehearing motions must be filed at least 10 (rather than 14) days before a hearing, with the requirements for late filing restricted;
  • a motion or response grounded on facts must be verified by an affidavit unless the facts are agreed to or established by the pleadings;
  • all prehearing motions except motions to dismiss and motions for issue preclusion will be decided by the hearing committee chair or the special hearing officer;
  • all motions will be decided on the papers without hearing or argument; and
  • there shall be no interlocutory appeal except as to the allowance of motions to dismiss and rulings alleged to exceed the authority or jurisdiction of the person ruling on the motion.

b. Amend § 3.18(b) to spell out that motions to dismiss must be decided by the Board chair or another member of the Board designated by the chair, i.e., the chair cannot designate the hearing committee chair or special hearing officer. Another proposed revision to this section clarifies that a hearing shall not be stayed after the filing of a motion to dismiss except for good cause. The final revisions to this rule rewrite the procedures for appeal from the decision on a motion to dismiss.

c. Add new § 3.18(c) to provide that motions for issue preclusion are to be decided by the Board chair or the chair’s designee. In this instance, the designee could be the hearing committee chair or the special hearing officer.

d. Amend § 3.23 to make prehearing conferences mandatory in formal proceedings other than conviction cases. The rule delineates matters to be addressed at the conference. Of particular importance in this respect is a new requirement that objections to a witness or exhibit be specified and that objections to authenticity must be supported.

e. Strike and reserve § 3.24 as subsumed in revised § 3.23.

9. The proposal suggests revisions to §§ 4.9 to 4.15 of the Board rules on deposition practice. The amendments would provide for discovery depositions in addition to depositions to preserve testimony that are currently allowed. The core of the proposal is revised § 4.9(a) and (b), requiring applications for discovery depositions to be approved by the Board chair or the chair’s designee and providing that the application will be allowed only upon a showing of substantial need. The proposal also suggests revising § 4.15 to clarify that all or part of any deposition (discovery or testimonial) offered in evidence at the hearing may be admitted so far as admissible under the rules of evidence applicable to bar proceedings as though the witness were then present and testifying.

10. In addition to the changes concerning deposition practice, the proposal also suggests revisions to § 3.17 of the Board rules to expand current discovery practice. Consistent with Rule 15 of the ABA Model Rules for Lawyers Disciplinary Enforcement, the revised rule provides that, after the answer to a petition for discipline is filed, Bar Counsel and the Respondent shall exchange names and addresses of “all persons having knowledge of relevant facts” and thereafter each shall comply with reasonable requests for “non-privileged information and evidence relevant to the charges or the Respondent” and other material upon good cause shown to the special hearing officer or hearing committee chair.

Contempt

11. The proposal amends SJC Rule 4:01, § 17(7) and (8) to provide that lawyers found to have engaged in the practice of law or unauthorized paralegal work while suspended, disbarred, or subject to a disciplinary resignation, may not be reinstated until after the expiration of a “specified term determined by the court.” The current rule sets a fixed additional term of two times the original suspension or ten years for lawyers who are indefinitely suspended, disbarred or who have resigned. The proposal also clarifies that lawyers on disability inactive status who engage in either legal or paralegal work shall be removed from disability status and temporarily suspended pending further disciplinary proceedings.

Reinstatement

12. To reduce delay in reinstatement proceedings, the Board and Bar Counsel propose amending SJC Rule 4:01, § 18, to provide that lawyers serving suspensions of a year or less be allowed six months, rather than three months, to apply for automatic reinstatement. The revisions further provide that lawyers for whom reinstatement hearings are required be permitted to file petitions three months in advance of the expiration of the original terms of suspension or three months in advance of five years for an indefinite suspension and eight years for a disbarment or resignation. The rule makes clear that the hearing shall not be held until the full term has expired. Similarly, the proposal clarifies that a lawyer whose term of suspension or resignation or disbarment is extended by a contempt finding under SJC Rule 4:01, § 17(8), is not eligible to apply for reinstatement until the expiration of the extended term.



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