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Commonwealth of Massachusetts


January 2002

DUES AND DONT'S

by
Roger Geller and Susan Strauss Weisberg

Do not ignore letters from the Board of Bar Overseers or the Office of Bar Counsel. Engaging in unethical conduct in the course of representing clients is not the only way for a lawyer to get suspended from practice. Massachusetts lawyers are required by S.J.C. Rules 4:02 and 4:03 to register annually with the Board and pay the specified registration fee. In addition, under S.J.C. Rule 4:01, § 3, and Mass. R. Prof. C. 8.4(g), lawyers must reply to disciplinary grievances and otherwise cooperate with bar counsel. A violation of either obligation will subject a lawyer to summary or “administrative” suspension without the need to find underlying professional misconduct.

The Board sends every registered lawyer an annual registration statement that must be completed, signed and returned with the required fee within 30 days. Failure to remit the payment results in a notice that a late fee will be assessed absent compliance within 15 days, and lawyers who still do not pay are notified that nonpayment will lead to the filing of a petition for their suspension. See S.J.C. Rule 4:03(2). The registration statement and notices are mailed to the lawyer’s last registered address. It is therefore important for lawyers to apprise the Board promptly of all changes of address, as required by S.J.C. Rule 4:02(1). Address updates can now be submitted on line at www.state.ma.us/obcbbo/bboreg/address.htm

Petitions for administrative suspension based on failure to register or pay the registration fee are filed by the Board in the Supreme Judicial Court for Suffolk County. The petitions, supported by documentation of nonpayment and notice, are granted without hearing and as a matter of routine. Upon entry of an order on the petition, the subject lawyers are suspended from the practice of law. See S.J.C. Rule 4:03(3).

The investigation of bar discipline complaints is governed by S.J.C. Rule 4:01, § 3, and Chapter 2 of the Rules of the Board of Bar Overseers. Pursuant to Section 2.6 of the Board Rules, bar counsel must notify a lawyer about a grievance filed against him and seek a response to the grievance before making any recommendation for discipline. The lawyer ordinarily has 20 days to submit a response. Even if the grievance is without merit, the lawyer’s failure to answer or to comply with bar counsel’s further requests for information is misconduct in and of itself and can have serious disciplinary consequences. See, e.g., Matter of McDermott, 6 Mass. Att’y Disc. R. 222 (1989) (public censure, now called public reprimand, imposed solely for failure to cooperate in bar counsel’s investigation); see also Matter of Garabedian, 416 Mass. 20, 24-25 (1993) (explaining the need for serious discipline for repeated failure to cooperate).

Sanctions imposed as a result of disciplinary proceedings are not, however, the only consequences of noncooperation. A lawyer who does not respond to bar counsel is subject to summary, administrative suspension on that basis alone. S.J.C. Rule 4:01, § 3(2), provides that a lawyer’s failure to cooperate “shall result the entry of an order of administrative suspension” by a single justice of the Supreme Judicial Court if bar counsel files a petition demonstrating that the lawyer was served with a request for information, afforded a reasonable time for compliance, and advised that failure to comply would result in administrative suspension without further hearing. Administrative suspensions, whether for nonpayment or for noncooperation, are effective immediately upon entry of the suspension order. See S.J.C. Rule 4:01, § 3(3), and Rule 4:03 (3). If an administratively suspended lawyer is not reinstated within 30 days after the entry of the order, she becomes subject to the same requirements imposed by S.J.C. Rule 4:01, § 17, on lawyers under disciplinary suspension. These include withdrawing all appearances as counsel, resigning all fiduciary appointments, and giving notice of the suspension to all clients, opposing counsel, wards, heirs and beneficiaries. In addition, administratively suspended lawyers must refund all unearned fees, close all IOLTA or other trust accounts, and properly disburse all client, fiduciary and other trust funds in their control. They are also required to file an affidavit and documentation of compliance with the court and bar counsel. See S.J.C. Rule 4:01, §§ 17(1), (5) and (6).

A lawyer who continues practicing after administrative suspension is subject to penalties for contempt of court and to discipline for violation of the Rules of Professional Conduct prohibiting unauthorized practice of law and conduct prejudicial to the administration of justice. See, e.g., Matter of Erickson, 5 Mass. Att’y Disc. R. 127 (1987) (contempt adjudication for continued practice of law in violation of administrative suspension order; disciplinary suspension was imposed on lawyer as sanction for contempt). Suspended lawyers are prohibited from engaging in paralegal work, and other lawyers are prohibited from knowingly employing them or using their services in any capacity. S.J.C. Rule 4:01, § 17(7).

Lawyers can save themselves a lot of trouble by paying their bar dues on time and by paying timely attention to mail from bar counsel. An ounce of prevention is worth a pound of cure.



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