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Commonwealth of Massachusetts


April 2007

PAST IS PROLOGUE: A Short History of the Bar Discipline System in Massachusetts

by
Constance V. Vecchione, Bar Counsel

The year that I was sworn into the Massachusetts bar, 1974, is the year that the Massachusetts Board of Bar Overseers, Office of Bar Counsel, and Clients’ Security Board first opened their doors. Although it may seem to the generation of lawyers admitted since then that bar discipline complaints have always been processed through the board and bar counsel, in fact the system is not yet 33 years old.

When the Supreme Judicial Court appointed me as chief bar counsel in January of this year, I became only the fifth person to hold this position. But I have been at the Office of Bar Counsel, as an assistant bar counsel and then a first assistant, since 1980. So, given the parallel track of my tenure at the bar and the history of the office, perhaps now is a good time to take a brief look back over the history of bar discipline in the Commonwealth to see how far we have come and where the Office of Bar Counsel hopes to be heading.

Thirty-seven years ago, led by retired Supreme Court Justice Tom Clark, the ABA Special Committee on the Evaluation of Disciplinary Enforcement published Problems and Recommendations in Disciplinary Enforcement (1970). Lawyer discipline around the country was then uniformly the province of local bar associations with no professional staff. The Clark report was the first national survey of these systems. Its conclusion was that the situation was “scandalous,” that the norm was a fragmented, secretive maze of proceedings with little available by way of guidance or precedent.

The Massachusetts system was no exception. As later described by Chief Justice Wilkins, bar discipline in Massachusetts was “regionalized, uneven in its quality, largely unpublicized and subject to the charge of discriminatory or at least indifferent enforcement.” A Justice’s Perspective of the First Twenty Years of the Board of Bar Overseers, 79 Mass. L. Rev. 134 (1994).

In the aftermath of the Clark report, Massachusetts and most other states adopted new disciplinary rules and disciplinary structures, with full-time staff and statewide jurisdiction. Massachusetts followed the Clark report recommendation by establishing a Board of Bar Overseers and Office of Bar Counsel under the court’s control rather than enforcing the rules through a bar association. The Massachusetts Code of Professional Responsibility, patterned on the Model Code adopted by the ABA in 1969, was enacted in 1972, the first formal set of disciplinary rules for Massachusetts attorneys. Supreme Judicial Court Rule 4:01, establishing the Board of Bar Overseers and Office of Bar Counsel, and Rule 4:04, the Clients’ Security Board, were adopted in 1974.

The basic organizational model adopted at that time for the board and bar counsel still remains—a bar counsel and staff who investigate and prosecute and a board that comprises adjudicative and administrative functions including appointment and oversight of hearing committees and hearing officers. Within those confines, however, there have been significant changes over the years to both the disciplinary rules and the disciplinary process.

The ABA in 1983 replaced the Model Code of Professional Responsibility with the Model Rules of Professional Responsibility. In 1998, Massachusetts joined (what was by then) the majority of other states in adopting the RPC, with some changes, in place of the old Code. Since 1998 there have been other important amendments to the rules, most recently changes to Rule 5.5 on multijurisdictional practice and, perhaps most notably, an extensive overhaul in 2004 of Rule 1.15 on trust account record keeping.

The disciplinary system has also continued to develop in the years since 1974. As just one example, nonlawyers were initially not part of the process. However, the Board of Bar Overseers, nine attorneys in 1974, quickly grew to be eight attorneys plus four nonlawyers. Laypersons were added to hearing committees in 1993.

The disciplinary system was also influenced and affected by a second ABA report. Nineteen years after the Clark Commission, the ABA again undertook a national evaluation of lawyer disciplinary systems. New, largely consumer-driven concerns had emerged in the intervening years. The second committee, known as the McKay Commission, published its report, Lawyer Regulation For a New Century, in 1992.

Many of the changes recommended by the McKay Commission either already existed in Massachusetts (for example, a procedure for immediate temporary suspension where the lawyer posed a threat of substantial harm to clients or prospective clients) or have since been implemented. Perhaps the most important post-McKay modification occurred in 1993, when the SJC amended Rule 4:01 to provide that disciplinary proceedings would be open to the public after a petition for discipline was filed, that is, at the commencement of formal proceedings, rather than after hearing and upon the filing of an information in the Supreme Judicial Court for Suffolk County. This change reduced the secrecy found by the McKay Commission to be “the greatest single source of public distrust of lawyer disciplinary systems.” In addition, the levels of discipline less than suspension were streamlined, the board was authorized to administer public reprimands, and complainants were accorded absolute immunity for filing complaints.

Other important changes to reduce delay and improve access to help and information have also been made over the years. In 1999, in line with another McKay Commission recommendation, the Office of Bar Counsel, under former bar counsel Arnold Rosenfeld, established an Attorney and Consumer Assistance Program (ACAP). The ACAP unit provides assistance to approximately 6000 consumers and attorneys each year, informally resolving more than 75% of these matters, usually in less than thirty days. As a result, the number of files opened against lawyers has been reduced since 1999 by more than 50 %.

Another major step forward in making information available to the bar and the public was the launching in the late 1990’s of the OBC/BBO website, www.mass.gov/obcbbo. The website includes, among other materials, all disciplinary decisions since 1999, as well as articles by staff on numerous issues of professional responsibility and the full text of the disciplinary and procedural rules. (The board, of course, since 1979 has also published Massachusetts Attorney Discipline Reports, comprising all disciplinary decisions since 1974.) And the Office of Bar Counsel not only is a frequent participant in an array of CLE programs, but also co-sponsors a twice-yearly program on ethics and law office management and a monthly program on trust account record keeping.

So, with this history in mind, what lies ahead?

In 2005, at the request of the Supreme Judicial Court, the ABA sent a visiting team to evaluate the Massachusetts disciplinary system. The ABA evaluation followed a report that same year by the MBA Task Force on Lawyer Discipline. The ABA report, issued in October 2005, noted the strengths of the system and recognized the dedication of the board, board staff, and staff at the Office of Bar Counsel to serving the public and the profession and to improving the disciplinary system. Both the ABA and the MBA observed, however, that delay was a problem plaguing the system.

The ABA noted that bar counsel, the board, and respondents all bore responsibility for delay. Among the ABA recommendations aimed at reducing the time it takes to process complaints are the following proposals, all strongly supported by bar counsel and the board:

  • granting discretion to bar counsel not to open frivolous complaints;
  • expediting procedures for disciplinary proceedings involving lesser misconduct;
  • replacing local hearing committees with statewide hearing committees;
  • requiring that hearings on bar discipline cases take precedence over trial schedules;
  • scheduling hearings on bar discipline cases in advance and on consecutive dates;
  • denying continuances in bar discipline matters except for good cause;
  • reducing the levels of review after the hearing report as to both appeals to the board and to the Supreme Judicial Court;
  • adopting an “alternatives to discipline” program; and
  • studying the institution of mandatory fee arbitration at the option of the client.
  • The full report can be found at http://www.mass.gov/courts/abareport06.pdf

    As new bar counsel, I recognize that our greatest challenge remains to reduce the time elapsed before a petition for discipline is filed. The staff and I appreciate that the Supreme Judicial Court, the bar and the public are rightly unhappy with the age of some of the disciplinary cases recently decided. However, under former bar counsel Daniel Crane and in the nine months since his departure, we have made great strides in attacking this problem. The number of lawyers with pending disciplinary files is currently at its lowest point in six years.

    That said, we recognize that there is much more to be done. While we await direction from the Supreme Judicial Court as to those recommendations from the ABA report that require rule changes, both the Office of Bar Counsel and the Board of Bar Overseers have already implemented, or are working on implementing, other of the suggestions recommended by the ABA. But self-regulation is a privilege and an effective bar discipline system also requires a bar committed to the process. In that respect, we anticipate working with the bar in a cooperative relationship that will foster public confidence in the disciplinary process.

    The bar discipline system in Massachusetts is still relatively young, as such things are measured. The staff and I hope to effect changes in the upcoming months and years that will improve our ability to fulfill the mission of the Office of Bar Counsel: protecting the public from unethical conduct and preserving and enhancing the integrity and high standards of the bar while striving for fairness in all dealings with lawyers and consumers alike.



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