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Commonwealth of Massachusetts

July 1998

Myths and Realities

Arnold R. Rosenfeld

The Office of the Bar Counsel has been submitting regular columns to Lawyer's Journal for approximately six months. The genesis of these columns came from a meeting with a special committee of the Massachusetts Bar Association with whom, I and my two fist assistant bar counsel, met to discuss concerns of the bar about the functioning of the Office of the Bar Counsel. It was agreed at that meeting that we should attempt to provide more information to the bar about our procedures and our policies. In our first column, I offered a brief description of the bar disciplinary process. Since then we have written about a variety of ethical issues that commonly confront lawyers in Massachusetts. We hope these columns have been informative.

The recently announced dues increase for Massachusetts lawyers has raised additional questions about the functioning of the Office of the Bar Counsel and the Board of Bar Overseers. We have tried to respond to these questions by submitting detailed budget proposals, as well as statistical and operational information, to the Massachusetts Bar Association Executive Committee. It is clear, however, that despite our columns in Lawyer's Journal and our making available budget and other materials, there remain some misperceptions about the Office of the Bar Counsel. I will try to deal with these concerns in the remainder of this article.

Myth: Many Office of the Bar Counsel investigations arise from complaints by stenographers or other litigation-related providers who haven't been paid by lawyers and such complaints automatically trigger investigations into the lawyer's accounts.

Reality: When complaints are received from stenographers or other litigation-related providers who have not been paid by lawyers, they do not automatically trigger investigations into lawyers' accounts. In fact, the Office of the Bar Counsel policy on these complaints is to call the lawyers and inform them that a provider has either called or filed a grievance and to suggest that the matter be resolved. Complaints are not opened in these cases unless the matter remains unresolved after a reasonable period of time. Note that complaints concerning nonpayment of most other types of business or personal debts are summarily closed without inquiry. The confusion may arise from the procedures followed upon the reporting of dishonored checks on lawyers' trust accounts by financial institutions, pursuant to Mass. R. Prof. C. 1.15. When the Office of the Bar Counsel receives one of these reports (approximately 300 were received in fiscal 1997) lawyers are asked to provide client fund account records for a six month period so that a determination can be made whether there has been a conversion, whether the client fund accounts are being maintained properly, or whether there merely has been a mistake.

Myth: A large number of investigations stem from complaints filed by prisoners in correctional institutions who are claiming ineffective assistance of counsel.

Reality: The Office of the Bar Counsel receives a substantial number of complaints from prisoners in correctional institutions. Where the claims are post-conviction claims alleging that lawyers were not competent, or provided ineffective assistance of counsel, the complaints are summarily closed, with the advise to complainants that if and when a holding is made by a court that there was ineffective assistance of counsel, the complaint will then be investigated. Where complaints allege that lawyers are currently neglecting them or their cases or have otherwise violated the rules of professional conduct, then the complaints will be investigated no differently than any other complaint.

Myth: The Office of the Bar Counsel staff consists of lawyers who have spent their entire careers in public service and do not understand the demand of private practice.

Reality: In fact, of the 16 lawyers on the staff of the Office of the Bar Counsel, 12 have experience in private practice. The staff includes lawyers who have been solo practitioners, and members of small, medium-sized and large firms. The attorney staff has extensive experience in the various fields of practice, including personal injury, estates and trusts, domestic relations, housing, criminal, civil litigation, appellate and other areas. In addition, there are experienced prosecutors and defense counsel in the criminal area. No assistant bar counsel has less than ten years experience as a member of the bar. Three of the last four lawyers hired as assistant bar counsel came from private practice.

Myth: The Office of the Bar Counsel harasses lawyers by assuming misconduct upon receiving a complaint, by demanding responses to complaints in unreasonably short times, and by requiring unnecessary supporting documentation in the answers filed.

Reality: When complaints are received and docketed because they allege misconduct in violation of the Mass. Rules of Professional Conduct, Supreme Judicial Court Rule 4:01, § 7(1) states that the bar counsel shall investigate the complaint. Thus, even though the lawyers may consider the grievances to be specious, we are obligated to check them out. The procedure followed is to send a letter to the attorney, along with a copy of the complaint, asking the lawyer to respond in 20 days. The letter also points out that failure without good cause to cooperate may result in discipline, citing Supreme Judicial Court Rule 4:01, § 3 (see also, Mass. R. Prof. C. 8.4(g)). Subsequent letters usually request that the response be filed within 10 days of its receipt. Supporting documentation is requested where relevant and appropriate.

The reason for the short time frame for responses is to try to get the lawyer to deal with the complaint in a timely way. Neither lawyers being investigated not the Office of the Bar Counsel want a long investigation. We recognize it creates problems for the lawyer to have these matters unresolved. Keep in mind that 80 percent of complaints are closed within 60 days. This is most likely to occur when there is a complete initial response. If a lawyer receiving a complaint needs more time to prepare the response, a request for an extension to the bar counsel assigned will, in most instances, be granted without difficulty. The only exceptions to granting these extension requests occur when there is reason to believe that funds are being converted or otherwise misused. The same situation is true for the letters asking for responses in 10 days. In all instances, we try very hard to be reasonable and courteous in both our oral and written responses to lawyers (and complainants).

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