PROPOSALS FOR IMPROVEMENT OF THE MASSACHUSETTS SYSTEM OF ATTORNEY DISCIPLINE
Prepared by the Office of Bar Counsel
The Office of Bar Counsel has reviewed the Report of the American Bar Association’s Standing Committee on Professional Discipline and identified the following measures it believes will improve the quality of the system of attorney discipline in Massachusetts and reduce delay in completing investigations and prosecuting contested matters where appropriate. We ask the Supreme Judicial Court to consider these measures favorably and approve or adopt them.
1. Aspirational time standards should be established across the lawyer discipline system for both bar counsel and the board. (ABA Recommendation Two (D))
The ABA recommends internal, aspirational time standards as guidelines for conducting investigations and prosecutions. Bar counsel agrees that aspirational time standards are important and submits that aspirational time standards should extend to the decision-making and appeal process. (See point 4 below.)
Bar counsel currently has in effect internal time standards that take into account the current caseload, resources, and structure. The reviewing team specifically suggested that the time for either closing an investigation without discipline or prosecution of disciplinary charges should be six months for routine matters and twelve months for complex matters. OBC’s view is that these are appropriate goals for future standards, but they are not realistic without other important changes in the process.
Bar counsel opposes mandatory time standards. Only nineteen discipline systems report time standards for completing investigations. All but two (Ohio and Maryland) of these are aspirational with no consequences to the prosecution if they are not met. While delay is a problem that must be addressed, mandatory time standards are not the answer and will not protect the public interest.2. The Process of Holding Some Files Should be Eliminated (ABA Recommendation Two(C))
When a petition for discipline is filed against a lawyer that does not include charges on all matters that are then under investigation, bar counsel “holds” the other files that are not charged in the petition. Depending upon the outcome of the charges contained in the petition, bar counsel may bring additional charges on the investigations that were held or subsume them. Bar counsel also holds investigations pending the conclusion of any criminal prosecution of a lawyer.
The ABA recognized that “holding” files pending the outcome of criminal proceedings was appropriate but recommended eliminating the practice of holding investigative files that are not the subject of a petition for discipline. Bar counsel agrees with this recommendation. The bar associations made no comment on this recommendation. Unless the Court directs it to do otherwise, bar counsel will eliminate this practice. No change to the rules is necessary.3. Bar Counsel Should Be Granted Discretion Not to Open and to Close Files (ABA Recommendation Two (E))
The ABA recommended that SJC Rule 4:01 and the Rules of the BBO be amended to grant bar counsel discretion not to open and to close investigative files and to eliminate the designation of “B” and “C” files. The bar associations took no position on these recommendations.
- No investigation of frivolous complaints (by OBC or ACAP)
In the spring of 2004, the Board of Bar Overseers and the OBC proposed an amendment to our procedural rules to permit bar counsel to decline to open an investigative file on matters that are outside the jurisdiction of bar discipline, are frivolous, or do not warrant investigation. No objections were submitted when the proposal was published. The matter is currently pending before the Supreme Judicial Court.
Currently, bar counsel is required to open an investigative file for any grievance the complainant insists on filing, even if the complainant has been informed by the Attorney Consumer Assistance Program (ACAP), the intake unit in OBC, that the grievance does not rise to the level of a rule violation or does not otherwise warrant discipline. When bar counsel closes these matters, the complainant has the right to request a review from a member of the board. Historically, 29% of all complainants do request review. Of these, the board has required less than 2% of them to be reopened following review. And, of those matters, a scant few have ultimately resulted in any discipline. More importantly, a disproportionate number of the complainants in the matters that ACAP did not feel were meritorious are the ones who request review.
Adoption of such an amendment would eliminate opening more than 100 investigative files each year. In addition, it will eliminate the need to engage in a round of correspondence with an attorney-respondent and to prepare a memo to the board in response to the complainant’s request for review.
If the rule is adopted, ACAP, as it has since its inception, will make a recommendation whether each written complaint filed should be investigated or not. As a matter of internal policy, bar counsel or one of the first assistant bar counsel will read each file that ACAP identifies as not appropriate for investigation and provide a second screening of these matters. The board could then review a representative number of the matters that bar counsel declines to open as an investigative file on an annual or semi-annual basis to determine whether bar counsel is properly exercising his discretion.
- Amend rules to eliminate the designation of B and C files.
Currently, files are classified either as “B” files or “C” files. These designations are generally assigned at the discretion of the assistant bar counsel handling the case. Typically grievances are designated as “B” files, and do not become “C” files unless bar counsel determines that the matter is grave, the lawyer has been disciplined previously, the lawyer is the respondent in a pending petition for discipline, a formal complaint has been filed against the lawyer for a similar offense, the lawyer has failed to cooperate with bar counsel, or there is sufficient evidence of misconduct to justify treating the matter as a formal complaint.
Practically, the only difference between a “B” and “C” file is that bar counsel must obtain the board’s approval to close a “C” file. This requires the preparation of a memorandum explaining why bar counsel has decided to close the file. Occasionally, bar counsel also communicates to the reviewing board member that the respondent will be cautioned, although the board does not formally approve or disapprove the giving of a caution.
Eliminating the designations of “B” and “C” files will permit bar counsel to close files without the need of a memorandum and the board’s approval. The complainant will continue to have the right to request a review by a board member, which will trigger the need for a memorandum justifying the closing.
4. Reduce the length of time to conduct hearings and issue decisions (ABA Recommendation Three)
The length of time to conduct hearings and to issue decisions is too long. During the fiscal year ending August 2005, twenty contested hearings consumed an average of 6.2 days each. In the same fiscal year, hearing committees and officers issued 20 decisions. Twelve of them were issued more than a year after the close of the evidence. Two of the twelve were issued just short of two years after the close of the evidence. This length of time impairs the effectiveness of and reduces respect for the discipline system. To address this delay, the ABA recommends:
5. Create a process for handling petitions for discipline involving lesser misconduct on an expedited basis (ABA Recommendation Six)
- Allowing fewer continuances with priority for discipline proceedings over civil proceedings
Frequent continuances and delays in scheduling of hearings absorb an enormous amount of time, causing counsel for the parties to prepare for hearings repeatedly as the process stretches out for months. In addition, respondents understand that, even after formal proceedings commence, ultimate resolution of the case is likely several years off, thus making negotiation of a stipulated sanction more difficult. All of these factors contribute to delay in investigation and disposition of matters by bar counsel. Granting continuances only for genuine emergencies and instituting provisions that give precedence to disciplinary proceedings will address this problem.
- Scheduling consecutive and closer hearing dates
We have urged the board and its hearing committees and hearing officers to conduct disciplinary hearings on consecutive days to the greatest extent possible. When breaks are necessary, we urge that they last no more than two weeks so that the parties and the hearing officers are able to keep the thread of the proceedings in mind. The board has been receptive to these suggestions, and recent hearings have been scheduled accordingly. Formalizing consecutive hearing dates as the standard will substantially reduce the number of hearing days and make it easier for the committees to render decisions promptly.
- Working with the board, hearing committees, and special hearing officers to determine what type of post-hearing papers and argument are most useful.
The committees will frequently entertain oral argument after the parties have filed proposed findings instead of at the close of evidence. Postponing oral argument causes unnecessary delay, as another day must be found to accommodate the schedules of busy lawyers and the parties must revisit a case that may have been tried several months in the past. Oral argument should be presented to the hearing committee or officer without delay after the close of the evidence. In addition, the hearing committee or officer could take the opportunity at oral argument to focus the attention of the parties on the issues that are of critical importance so that those issues can be addressed in the parties’ proposed findings of fact.
- Drawing hearing committee members from a single statewide panel regardless of the location of the hearing or the respondent’s office
Under the present system, the state is divided into six geographic districts. S.J.C. Rule 4:01, § 2. Generally, disciplinary hearings are held in the district where the lawyer practices, and the hearing committee comprises lawyers or lawyers and a layperson residing in that district.
The ABA recommends that all hearing committee members be drawn from a single statewide panel and that all hearings be conducted at the offices of the Board of Bar Overseers at Boston. Bar counsel agrees with this recommendation.
Finding qualified lawyers able to serve as hearing officers and committee members, particularly in extended hearings, is a persistent problem. Scheduling hearings is also a logistical feat, particularly when there is an effort to choose from the pool of lawyers in a particular district.
A solution to all of these problems is to draw hearing officers and committee members from a single statewide list. A statewide pool will give the board a larger number of volunteers and greater flexibility in choosing hearing committees or special hearing officers and will allow the board to draw on special expertise when required in a particular case. Other than the four most western counties, hearings should be conducted at the offices of the Board of Bar Overseers in Boston.
The ABA also points out that a statewide panel would eliminate any appearance of a “home field advantage” for the lawyer that a local panel may create. The MBA opposes this recommendation because it disagrees that there is any appearance of a “home field advantage” and claims that local hearing panels better understand community standards. It also points out that local hearings are more convenient for complainants and witnesses, particularly in the western part of the state.
As to the MBA’s first point, ethical standards and obligations do not (or should not) vary from one district to another. As to the second point, witnesses might have more confidence in the outcome and be willing to travel a little farther if the hearing were not before the lawyer’s colleagues. Moreover, a statewide panel is not necessarily inconsistent with convenience, as there would be no impediment to holding a hearing conducted by a panel drawn from a statewide pool in a location convenient to witnesses and the parties if the circumstances warranted it.
Amendments to S.J.C. 4:01, §2, will be necessary to establish a statewide panel of hearing officers and committees. The other proposals only require changes in board policy.
The ABA Report recommends that whenever bar counsel seeks a sanction less than a suspension, a special hearing officer should conduct the hearing. The hearing should be conducted within thirty days of assignment to the hearing officer without a pre-hearing conference. Any appeal from the hearing officer’s findings and recommendation should be to the Board of Bar Overseers and appeal to the Court should be at the Court’s discretion. The MBA opposes this recommendation because it prefers that all matters be heard before a hearing committee and asserts that bar counsel would not ever agree to limit the sanction it seeks to less than a suspension.
We support the ABA’s recommendation. A hearing for a sanction less than a suspension does not have to be as formal as other bar discipline proceedings. We believe that such hearings can be informal and expedited.6. Administer admonitions by mailing notice of approval by the BBO unless lawyer requests formal proceedings within 14 days (ABA Recommendations Seven)
The current system for administering an admonition provides that a respondent must appear for an admonition, which is approved by a board member but administered by an assistant bar counsel. The respondent may reject private discipline and take the matter to a hearing any time within 30 days after the admonition has been administered, even if the respondent initially agrees to accept the admonition. If the admonition is rejected, the matter is to go to hearing and is handled as any other bar discipline case.
We agree that this procedure is too cumbersome. There is no real advantage gained in requiring a lawyer personally to appear to be admonished. Also, there is no reason that a lawyer should have thirty days to retract his or her acceptance of an admonition. It should suffice to serve the admonition on the lawyer and consider it done unless the lawyer, within fourteen days, rejects the admonition and demands a hearing.7. Streamline appeals at various levels of the disciplinary process (ABA Recommendation Ten)
The ABA recommends and we agree with all of the following recommendations:
- Eliminate bar counsel’s right to appeal denial of prosecution of formal charges beyond the board chair
- Limit appeals to the BBO from hearing officer or committee decisions to one level
- Eliminate remand from BBO to hearing officer or committee
- Provide only one level of appeal from the BBO to S.J.C. (eliminate mandatory single justice review)
- Provide discretionary review of board decisions by the S.J.C. in cases involving significant or novel issues of law or significant departure from established precedent.
Currently, if the Board of Bar Overseers recommends suspension or disbarment, the board files an information with the Supreme Judicial Court for Suffolk County together with the record of the disciplinary proceedings. A single justice sits in the county court and issues an order, which either party then has the right to appeal to the Supreme Judicial Court for the Commonwealth.
Use of the single justice system presents several problems. First, the single justice often does not write an opinion. When there is no opinion, Board of Bar Overseers publishes a board memorandum or hearing committee report, or the assistant bar counsel who handled the case writes a summary of the facts that the Board of Bar Overseers publishes. Clearly, this is not optimal.
Second, as recognized by the justices themselves, there is greater opportunity for inconsistency in sanctions in the single justice system. See discussion of this issue in Matter of Schoepfer, 426 Mass. 183, 186-187 (1997). This lack of consistency undermines the bar discipline process.
Finally, the single justice system may cause delay. Even in cases of disbarment, no judgment is entered until a single justice hears the matter. Once the single justice rules, the suspension or disbarment takes effect, even if there is an appeal, unless a stay is granted. Nevertheless, there can be and have been substantial delays between the filing of an information recommending disbarment and the decision of the single justice.
The ABA team addresses these problems by proposing that the Board enter orders of suspension and disbarment with a right to petition the full Court for review.
The OBC agrees with the ABA recommendations. A party aggrieved by the board’s decision would have the right to petition to appeal to the full bench, which would then have the discretion to grant appellate review, reserving review for those cases that present substantial issues or substantial deviation from precedent.
The MBA considers these recommendations to be unnecessary because it believes that the appellate process does not contribute significantly to delay. The MBA also asserts that elimination of single justice review will undermine the precedential value of single justice decisions that currently exist. In addition, the MBA argues that there may be cases heard by the full court that could have been disposed of by the single justice. The BBA urges that lawyers should continue to have a right to appeal to the full bench whether or not there are novel or significant issues of law but agrees that eliminating single justice review might have some merit.
Single justice review may not account for most of the delay, but that is not an argument for eliminating unnecessary delay. Nor is the supposed threat to the precedential value of single justice decisions a reason to avoid full court review when required. Finally, making review by the full court discretionary addresses the MBA’s concern that the full court will be hearing appeals that are not warranted.8. Diversion from ACAP to a Law Office Management Assistance Program (ABA Recommendation Thirteen and Fifteen)
The bar associations agree with this recommendation. Lawyers Concerned for Lawyers, the BBO, and OBC have proposed a law office management assistance program in the BBO budget for FY 2007. This program will require amendments to S.J.C. Rule 4:01 granting bar counsel discretion not to open investigative files and to close them. The ABA recommended adoption of these rules changes elsewhere in its Report (Recommendation Two (E)), and the bar associations do not oppose them. If the Court approves the budget and the necessary rules changes, the program could go into operation as early as January 1, 2007.
Massachusetts has no law office management assistance program. We conduct a twice-yearly full day ethics school. This program has been effective and well-received, but it cannot achieve the same results as a LOMAP program.
We believe that a LOMAP would reach lawyers whose primary problems stem from inadequate law office management skills, not dishonesty or fraud or other substantial problems. We expect that ACAP would identify problem lawyers who are the recipients of this type of complaint and would make the appropriate referral. Other referrals may come from assistant bar counsel if complaint files have been opened. However, LOMAP must be run by an organization outside the BBO and OBC for lawyers other than those referred by this office to use its services without concern that information obtained could become part of a disciplinary complaint.
As to matters referred by ACAP or bar counsel, the LOMAP we envision would conduct an audit of the attorney’s practice, make recommendations for improvement, and return within 45 days after the recommendations to determine what action has been taken on the recommendations. The extent to which the lawyer cooperates with the audit and implements the recommendations of the auditor must be disclosed to bar counsel. Whether LOMAP would function as an alternative to discipline, in conjunction with discipline as a condition of probation, or both, may depend on the facts of the particular case.
The impact of LOMAP on delay in the prosecution of our cases remains to be seen. If referrals are made from ACAP, it will be necessary to add an additional attorney to the ACAP staff to negotiate the terms of the diversion and monitor the lawyers who are sent to LOMAP.
In principle, Lawyers Concerned For Lawyers (LCL), is willing to take responsibility for operating the program at no charge to lawyers. LCL is the Massachusetts lawyer assistance program and historically has functioned as a support for lawyers with substance abuse problems or other personal issues that interfere with their ability to practice law effectively. See www.lclma.org. It is funded in large part with lawyer registration fees. If LCL expanded its mission to include LOMAP, there would need to be a modest increase in the annual registration fee. A fee increase in FY 2007 is already under consideration.9. Establish a mechanism for summary disposition of alleged probation violations to permit the use of suspended suspension as a sanction
In past years, suspended suspensions and other sanctions were coupled with terms of probation. When probationary terms were violated, however, bar counsel was required to initiate new formal proceedings involving all the usual trappings. In addition, we found that we did not have the resources to monitor probation effectively. For these reasons, the OBC generally does not currently recommend or stipulate to suspended suspensions. There may be matters, such as some short suspensions, that could properly be disposed of by suspended suspension and probation, but we need to address these two impediments.10. Study whether to adopt mandatory fee arbitration at the option of the client (ABA Recommendation Seventeen)
The ABA recommended that a study be conducted of whether mandatory fee arbitration should be adopted. We agree and have urged adoption of mandatory fee arbitration at the option of the client. See “Why Not Arbitrate Fee Disputes?” by Ken Luke and Alison Mills Cloutier, http://www.mass.gov/obcbbo/arbitrate.htm. We expect that mandatory fee arbitration would reduce the number of matters that ACAP has to deal with and the time it takes deal with them. It has been a successful program in Maine, New York, New Jersey, and other states for many years, and is recommended by the ABA.
We propose accomplishing mandatory fee arbitration by making revisions to the ABA Model Rule on Arbitration of Fee Disputes appropriate for Massachusetts. The arbitration could be conducted before and pursuant to the rules of any bar association-operated fee arbitration program or by any ADR provider approved the courts. The Massachusetts Bar Association has operated a high-quality fee arbitration program for more than 25 years. Several county bar associations also run fee arbitration programs. The court also has a panel of approved ADR providers who could serve in fee arbitration cases.
While it viewed this matter as outside the mandate of its study, the MBA indicated that it was willing to assist in implementation if mandatory arbitration was adopted.
11. Split board—administrative and adjudicative (ABA Recommendation One)
S. J. C. Rule 4:01, § 5, establishes the Board of Bar Overseers. There are twelve members, who have been nominated by the MBA, the BBA, county bar associations, and lawyers in general, and who are representatives of the various geographical areas in Massachusetts. They serve staggered, four-year terms.
The Board of Bar Overseers approves the closing of files, reviews appeals from dissatisfied complainants, conducts disciplinary hearings, and reviews appeals from hearing committee reports. The same board also handles all administrative matters involving both the board and the bar counsel’s office. Board committees not only consider rule changes and other matters related to bar discipline, but also pass on the salaries of bar counsel and his employees, set personnel policies, and otherwise conduct the business of the board.
The board’s involvement not only as an adjudicator but also as the administrator of the Office of Bar Counsel leads to public confusion and problems in public perception regarding the independence of the Office of Bar Counsel from the Board of Bar Overseers. Indeed, for many lawyers and laypersons, there is no distinction.
Problems arise from the commingling of responsibilities within the two offices as well. It is difficult for the board, composed as it is of volunteers, to devote the necessary time both to adjudicative and administrative functions. Both the administrative functions and the adjudicative functions suffer due to a lack of clear accountability. Segregating the two functions would permit the board members to focus more clearly on problems that arise.
We suggest that the board clearly separate its administrative functions from the adjudicative functions by assigning four members of the board to handle administrative responsibilities only and eight members to handle only the adjudicative functions. Alternatively, the number of board members could be increased with twelve members continuing to be designated to perform adjudicative functions and three additional members to handle administrative functions.
We also suggest that, when the members meet in executive session, only the general counsel to the board be present. Staff attorneys from either office should not be present during executive sessions of the board, particularly when appeals are being decided. Currently, the practice is for staff attorneys from the board to attend executive sessions when deliberations take place. This process gives an appearance of impropriety.
We recognize that there are some matters, such as rule changes affecting the bar discipline process, that will require the entire board’s deliberations. We think, however, that separating these two distinct functions will enhance the ability of the board to handle both, will improve the public’s and the bar’s perception of the process, and will improve the relationship between the Office of Bar Counsel and the board.
The ABA Report recommends creation of a separate administrative oversight committee. Dividing the B.B.O. into separate administrative and adjudicative agencies would accomplish at least some of the goals recommended by the ABA. While the bar associations oppose the ABA recommendation as unnecessary, they do not offer any solution for overseeing the administrative operations of the board and they do not address the problem of mixing administrative oversight with adjudicative functions.
© 2006. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.