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Commonwealth of Massachusetts

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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