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.
