June 1999
ACAPITAL
IDEA : Bar Counsel’s New Attorney and
Consumer Assistance
Program
by Anne Kaufman
On
March 1, 1999, the Office of the Bar Counsel’s newly-established central
intake division, the Attorney and Consumer Assistance Program (ACAP), opened
for business. Since then, the ACAP staff has spoken with approximately forty
consumers each day, all of whom contact the office with concerns about their
lawyers.
Modeled on similar programs in
Georgia, Florida, Arizona and Colorado, the goal of ACAP is to transform
the intake procedures of the Bar Counsel through a sophisticated complaint
screening process which includes consumer and attorney education as well
as informal resolution of minor problems between client and attorney. The
program was initiated by former Bar Counsel Arnold R. Rosenfeld, with the
support of the Board of Bar Overseers, in response to the concerns of lawyers
and consumers alike that there should be a better and faster way than the
complaint process to handle minor problems. The hope is that many of these
issues, if identified early, can be resolved quickly to the satisfaction
of the parties without disciplinary investigation.
Telephone inquiries from consumers
are now screened by ACAP to determine whether they fit within certain established
criteria. Cases appropriate for ACAP resolution often include failure to
return a file or calls and other minor neglect, delayed reimbursement of
an unearned retainer, minor conflict of interest, and failure to pay a professionally
incurred debt. ACAP will also try to assist with certain types of disputes
between counsel. More serious matters, of course, are still referred immediately
to Bar Counsel for disciplinary investigation.
If the matter falls within ACAP’s
jurisdiction, the ACAP staff will attempt resolution first by discussing
the problem with the client or other caller. Although ACAP is willing to
(and in a fair number of matters does) subsequently call the lawyer in an
effort to work matters out, in many instances the ACAP staff has found that
more service can be provided by assisting the client to understand the parameters
of the attorney-client relationship and the nature of any misunderstanding.
Even at this early stage of the program, numerous callers have advised the
ACAP staff that the information provided and questions suggested enabled
them successfully to resolve their problems and obtain the needed information
from their lawyers on their own.
In addition to assisting clients
in better understanding their relationship with their lawyers, ACAP has
been able to provide suggestions to lawyers about the effective resolution
of disputes and the prevention of such problems in the future. Many, if
not most, misunderstandings with clients can be prevented by returning calls
promptly, keeping clients informed about the status of their cases, providing
written fee agreements, following regular billing practices, and meeting
deadlines. It should be noted, however, that ACAP is not a "lawyer
assistance program" as defined in Rule 1.6(c) of the Massachusetts
Rules of Professional Conduct.
Matters that the ACAP staff successfully
deals with or resolves are not docketed as either complaints or grievances
pursuant to Rule 2.4 of the Rules of the Board of Bar Overseers. Although
the caller is permitted to refuse the assistance of ACAP and to insist upon
filing a complaint, that has so far been a relatively rare occurrence.
The experience of the other jurisdictions
in which similar programs have been implemented has been that as word of
the existence of the consumer assistance program spreads, the number of
calls to the program increases. As a result, instances of serious attorney
misconduct which might previously have gone unreported come to light. By
the same token, these same jurisdictions have been very successful in resolving
numerous small problems that formerly would have involved the opening of
a disciplinary file even if-- as is true in the majority of cases-- no discipline
ultimately resulted. Thus, whether or not in the long run the ACAP program
results in fewer complaints to Bar Counsel, many minor matters will be screened
out.
To some degree the success of ACAP
depends on the level of cooperation of the lawyers of the Commonwealth in
responding promptly to client concerns. This is true regardless of whether
the clients themselves communicate those concerns to lawyers after speaking
with ACAP staff or whether ACAP staff members call lawyers seeking to resolve
the problem. It should be to the lawyer’s advantage, as much as the client’s,
to resolve the matter outside the disciplinary process. We therefore look
forward to working with the Bar in making the ACAP program a success for
lawyers and clients alike.
For additional information concerning
the program, please call ACAP at (617) 728-8750.
---------------------------
Anne Kaufman has been an Assistant Bar Counsel with the Office
of Bar Counsel of the Board of Bar Overseers since 1985 and is the new director
of the ACAP program.
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