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Commonwealth of Massachusetts

November 1997

by Arnold R. Rosenfeld
Bar Counsel

    In this first column of what we hope will be a regular feature of the Lawyers Journal, we would like to offer an overview of the bar disciplinary procedures in Massachusetts.

    The Board of Bar Overseers, which oversees bar discipline for the Supreme Judicial Court, and the Office of Bar Counsel, which is responsible for investigating and prosecuting complaints against lawyers for violation of the disciplinary rules, both were created in 1974 by Supreme Judicial Court (S.J.C.) Rule 4:01, which was most recently amended (in a significant way) as of July 1, 1997. S.J.C. Rule 4:01 and the Rules of the Board of Bar Overseers, which most recently was amended as of September 1, 1997, govern the operations of both the Board of Bar Overseers and the Office of Bar Counsel and establish bar disciplinary procedures.

    Complaints, which must be in writing, are made to Bar Counsel (approximately 2500 in 1997). Most complaints are from clients, but others are received from opposing clients, opposing counsel, and judges. In addition, Bar Counsel may initiate an investigation based upon information he obtains, such as through court decisions, newspaper articles, or from other sources. If the complaint alleges a violation of the disciplinary rules, the rules require that it be investigated. This means, at the least, the lawyer complained about (the respondent) will be sent a copy of the complaint and asked to respond.

    Considering the fact that there are over 40,000 active lawyers in the Commonwealth, this means it is unlikely you will be asked to respond to correspondence from our office. However, if you do receive a letter from our office requesting a reply, it is very important that you answer promptly because you are required to do so by the rules (S.J.C. Rule 4:01 § 3) and failure to cooperate with Bar Counsel can result in discipline in and of itself, Matter of McDermott, 6 Mass. Atty. Disc. R. 222 (1989), or can aggravate discipline for other violations, Matter of Garabedian, 416 Mass. 20 (1993). Replies should be as detailed as is necessary to respond to the grievance and should include documentation about the matter where it will allow for a better understanding of the case. If more time is needed to prepare the response, the respondent should contact the Assistant Bar Counsel assigned to the case.

    The large percentage of complaints are disposed of without disciplinary action upon the decision of bar counsel and, if appealed by a complainant, with the approval of a member of the Board of Bar Overseers. This does not mean that the grievance was without merit, although there are many that fit into that category. Some complaints are resolved between the complainant and the lawyer after the grievance is filed, others are resolved through the intercession of Bar Counsel; still others, which are deemed not sufficiently serious to warrant further proceedings, are dismissed with a warning to the lawyer, after being converted to a formal complaint.

    The extent of the investigation prior to closing the case, offering private discipline, or recommending the prosecution of formal charges depends on the specifics of the allegations. Most files are closed shortly after receiving the attorney's reply or the complainant's response to the attorney's answer. In other cases, we may require the attorney to take some further action before we close the file. In yet other instances, we may obtain court documents, speak with witnesses, or subpoena bank or insurance company records before making a decision. The complexity of the matter and whether or not formal charges are brought most affect the amount of time before the case is completed.

    During fiscal 1996, 1865 files against 1565 attorneys were closed without any action; 187 attorneys received warnings; and 74 received an admonition, the only form of private discipline. All investigations (until formal charges are brought) and private discipline are kept confidential (with some limited exceptions). Many of these lawyers also were required to attend a continuing legal education program and some were placed on probation.

    In fiscal 1996, 77 lawyers were publicly disciplined, after formal charges had been brought by Bar Counsel and approved by the Board. Once formal charges are brought, we recommend that the respondent obtain counsel to represent him or her in the proceedings. While all of these lawyers were entitled to a hearing, many received discipline by agreement with Bar Counsel and approval by the Board and, if appropriate, the Court. There were 23 hearings consuming 126 days held before hearing committees appointed by the Board. The breakdown of public discipline in fiscal 1996 includes 17 who were publicly reprimand by the Board; 3 who were placed on disability inactive, 20 who were given a term suspension, 3 an indefinite suspension, 12 who were disbarred, 3 who were allowed to resign in lieu of disbarment, and 19 who resigned and were disbarred, all by the Supreme Judicial Court. Most Supreme Judicial Court bar discipline cases are decided by a Single Justice, but there is a right to appeal to the full bench. In fiscal 1996, there were seven full court bar disciplinary decisions.

    Beginning on January 1, 1998, the bar will be governed by new ethical rules, the Massachusetts Rules of Professional Conduct. Training programs on these new rules will be offered throughout the Commonwealth beginning in the fall by the Massachusetts Bar Association and others. In addition, as was mentioned earlier, there recently have been significant revisions of the procedural rules (S.J.C. Rule 4:01 and the Rules of the Board of Bar Overseers). The Office of the Bar Counsel and the Board of Bar Overseers hope to work with the members of the bar in Massachusetts to improve the standards of practice in the Commonwealth and the public perception of the bar through the enforcement of these rules of professional responsibility.

    The Office of Bar Counsel can be contacted by Email at OBCBBO@TIAC.NET.

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