MASSACHUSETTS BAR ASSOCIATION
LAWYERS JOURNAL
BAR COUNSEL COMMENTS
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.
BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2001. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.
