Mass.gov
   
Mass.Gov home Mass.gov  home get things done agencies Search Mass.Gov


Commonwealth of Massachusetts


January 1998

New standards clamp down on incompetence and neglect

by
Arnold R. Rosenfeld

Each year, charges of neglect of either a case or a client lead bar counsel's annual statistical report, comprising the highest percentage of both complaints filed and disciplinary sanctions imposed against Massachusetts lawyers. Allegations of neglect span from failures to return telephone calls, to failures to meet statutory filing deadlines, to failures to investigate or failures to prepare.

In an article in the Massachusetts Bar Association's Massachusetts Law Review in 1994, then Justice (now Chief Justice) Herbert P. Wilkens, reviewing the 20-year period since the inception of the Board of Bar Overseers, stated with regard to neglect cases, "The board has not seriously pursued incompetence as a matter of discipline for the court's consideration."

Although 20 percent of private discipline and 20 percent of public reprimands are imposed in neglect cases, the continuing volume of both complaints and discipline in this area makes it clear that the bar discipline system does not meet its stated goal of public protection when it comes to lawyer neglect.

In recognition of the fact that this problem exists and should be confronted, the Board of Bar Overseers and the Office of the Bar Counsel are tackling the issue of lawyer incompetence and neglect. In Matter of Kane, Public Reprimand No. 97 15 (11/21/97), the Board imposed a public reprimand for neglect and, at the same time, announced standards for the imposition of discipline for neglect in future cases. The Office of the Bar Counsel intends to bring charges and recommend discipline in accordance with these standards. The standards are based upon the American Bar Association's Standards for Imposing Lawyer Sanctions. The recommendation in each case will be made on an individual basis. However, absent aggravating or mitigating circumstances, the basic standards are as follows:

  1. Admonition is generally appropriate when a lawyer has failed to act with reasonable diligence in representing a client or otherwise has neglected a legal matter, and the lawyer's misconduct causes little or no actual or potential injury to a client.

  2. Public reprimand is generally appropriate where a lawyer has failed to act with reasonable diligence in representing a client or otherwise has neglected a legal matter and the lawyer's misconduct causes serious injury or potentially serious injury to a client.

  3. Suspension is generally appropriate for misconduct involving repeated failures to act with reasonable diligence, or when a lawyer has engaged in a pattern of neglect, and the lawyer's misconduct causes serious injury or potentially serious injury to a client.

It is important to note that if there are aggravating factors present in the case, the discipline is likely to be increased. For example, if a lawyer neglects a legal matter causing little or no injury to a client, but makes representations to the client to conceal the neglect, the lawyer may receive a public reprimand instead of an admonition. Similarly, a case that would ordinarily warrant an admonition may result in a public reprimand if the lawyer either has a prior disciplinary history (such as a previous admonition) or fails to cooperate with bar counsel's investigation. If a public reprimand would otherwise be the appropriate discipline but there are matters in aggravation, bar counsel and the board may recommend to the court that the lawyer be suspended. In a like manner, lawyers who would otherwise receive suspension for their misconduct under these standards may face a recommendation of indefinite suspension or disbarment if there are additional aggravating factors in the case. On the other hand, special mitigating factors may reduce the discipline imposed from what would otherwise be the standard sanctions. Matter of Alter, 389 Mass. 153, 157 (1983).

The guidelines were written to be implemented with the new Massachusetts Rules of Professional Conduct. Of particular importance are M. R. Prof. C. 1.1, M. R. Prof. C. 1.3, and M. R. Prof. C. 1.4. These rules replace DR 6-101(A)(1),(2),(3) and DR 7-101(A)(1),(2),(3) and define a lawyer's duties of competence, diligence, promptness, and communication with the client.

For lawyer discipline to be truly effective, sanctions must be based upon clearly defined standards. In 1984, in the Three Attorneys case, and again in November 1997 in Matter of Schoepher, the Supreme Judicial Court put the bar on notice of standards for imposing discipline when a lawyer has misused or commingled client funds. In the Matter of Concemi and Matter of Nickerson cases in 1996, the court clarified its position as to discipline of lawyers convicted of felonies. The Board's neglect standards, as announced in Kane, are a step in the same direction, a step which it is hoped will help lawyers to avoid complaints of neglect and, at the same time, afford better protection to clients.

CORRECTION: In the January 1998 Bar Overseer column, Bar Counsel Arnold R. Rosenfeld described the BBO's new neglect guidelines as set forth in the Board memorandum in Matter of Kane, Public Reprimand no. 97-15 (11/21/97). The Board has since amended Kane to correct a ministerial error in the guidelines, adding the words "or others" to the end of each of the three principal sanction standards enunciated in the decision, as follows. (New language in italics):

1. Admonition is generally appropriate when a lawyer has failed to act with reasonable diligence in representing a client or otherwise has neglected a legal matter, and the lawyer's misconduct causes little or no actual or potential injury to a client or others.
2. Public reprimand is generally appropriate where a lawyer has failed to act with reasonable diligence in representing a client or otherwise has neglected a legal matter and the lawyer's misconduct causes serious injury or potentially serious injury to a client or others.
3. Suspension is generally appropriate for misconduct involving repeated failures to act with reasonable diligence, or when a lawyer has engaged in a pattern of neglect, and the lawyer's misconduct causes serious injury or potentially serious injury to a client or others.

Since the misconduct may include neglect of any legal matter and not merely a matter being conducted for a client, the addition of these words was necessary to clarify the Board's intent that injury to nonclients caused by the attorney's neglect is also a factor. As just one frequent example, a lawyer's neglect of his or her obligations as executor may damage a beneficiary who is not a client.
 



BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org.
© 2003. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.