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Commonwealth of Massachusetts


October 1999

The New Kid on the Block

by Daniel Crane

 

Do you remember the feeling of the first day of school? That it is what it felt like to me as I assumed the position of chief bar counsel on the first of September. It was ironic for me to have that feeling again simultaneously with the beginning of the school year. It had been a long time since I experienced the sense of change that students encounter each year.

Many of you may know that I have served as president of the MBA and later as a member and chair of the Board of Bar Overseers. Some of you may also know that I was in a two attorney, general practice in Cambridge for the last twenty years. Hopefully, this background and experience has furnished me with an appreciation for the interests of the bar and the public in our system of attorney discipline.

My first hand understanding of the demands placed on practicing attorneys by client, economic, and personal needs will not remain current and accurate for long. This is because of the dynamic changes that are and will continue to occur in our profession and its practice. I am committed to maintain my understanding of these demands as I perform my duties as chief bar counsel. This will require me to make the effort to reach out to you, the members of our profession, to stay abreast of the changes that you will experience in your practices.

While it may mean change for me, I expect that it will not mean change for the high level of performance and professionalism that has been a tradition in the Office of Bar Counsel (OBC). It is extremely important that the attorneys of the OBC continue and expand their outreach to the bar and the public. This means participation as faculty in continuing education programs that provide lawyers with direction about how to practice successfully without getting into trouble. It means being available to provide responses to inquiries on ethical issues. It also means raising the public visibility of the OBC and Board of Bar Overseers so that members of the public who are dissatisfied with their lawyer’s performance know where to go to seek redress. It means operating the OBC in a manner that is "consumer friendly" so that members of the public who are dissatisfied with an attorney’s performance are not further put off by the process of investigation and evaluation of their grievances.

An area of special concern to me is the need to reduce the time elapsed from receipt of a client/consumer grievance to final disposition. Disposition of grievances should be prompt, regardless of whether it is a minor or serious matter. Reducing the time to disposition will increase public confidence in our system of attorney discipline. It should also be welcomed by attorneys who are the object of complaints and investigations.

After investigation, the vast majority of grievances made against attorneys are closed without any form of discipline or sanction. However, the time consumed by the investigation and evaluation of the grievance is a stressful one for any attorney, regardless of how innocent the attorney may be. The implementation of the Attorney/Consumer Assistance Program (ACAP) is one effort that should assist with that problem.

ACAP is designed to expeditiously resolve minor grievances. Examples of minor grievances may include failure to communicate with the client, delay in turning over file materials, or delayed reimbursement of an unearned retainer. Before ACAP, all grievances, regardless of their gravity, were docketed and processed by asking the attorney subject to a grievance for a written response. By contrast, under ACAP, in appropriate circumstances, a representative of the OBC may make a series of telephone calls to both the attorney and client to attempt to reach a prompt resolution of the dispute, satisfactory to both attorney and client. Provided a satisfactory resolution of the minor matter is achieved, no formal disciplinary file will be opened. If these efforts fail, then the matter may still be investigated in the traditional manner.

Obviously, the delay inherent in the traditional process is not desired by either the attorney or client, nor do attorneys wish to have a disciplinary file opened if that can be avoided. However, for ACAP to be successful requires the cooperation of those members of the bar who are the object of minor client grievances. This will occur if attorneys who are the object of minor grievances respond promptly and thoroughly to inquiries made by the ACAP staff. It is anticipated that a short period of time (30 days) will be established during which all matters receiving ACAP treatment must be resolved. Otherwise, they will be transferred to traditional investigation and disposition.

A word of caution about the nature of ACAP. It is not a diversion program. It is not a program for alternative disposition of serious offenses. Allegations of serious misconduct will be investigated, prosecuted and disposed of in the thorough and professional manner to which we are all accustomed.

The implementation of ACAP should also indirectly improve the time necessary to process serious grievances. If the minor grievances are eliminated from the traditional investigation process, this will permit resources to be better organized and allocated to investigations of allegations of serious misconduct.

ACAP is not a panacea for addressing the concerns of the Board and the public as to the processing of grievances against attorneys. However, it has considerable potential as a solid step in the right direction. Its implementation and success are a high priority for me as I embark in my service as chief bar counsel. Other changes must also be made to make the process more responsive.

The members of the OBC staff and I will be working hard at all of these "courses" during the coming months. I hope our efforts will warrant "good grades" in all of these subjects over the coming semesters.



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