Task force to review state's bar discipline process

Issue September 2004

MBA President Kathleen M. O'Donnell has appointed a MBA Task Force on the Bar Discipline Process to examine the existing rules, procedures and practices in the commonwealth's bar discipline process and, if necessary, make recommended changes to Rule 4:01 of the Rules of the Supreme Judicial Court and/or to the Rules of the Board of Bar Overseers.

The task force is chaired by Roy A. Bourgeois, of Bourgeois, Dresser, White and Beard in Worcester, and includes Michael Angelini of Worcester, Ilene B. Belinsky of Brockton, Kevin M. Burke of Boston, Jerry Cohen of Boston, James R. DeGiacomo of Boston, Rosemary Macero of Charlestown, the Hon. Bonnie H. MacLeod of Wakefield, Frances A. McIntyre of Boston, Michael E. Mone of Boston, Michael Najjar of Lowell, Lawrence F. O'Donnell of Quincy, Paul Sugarman of Boston and J. Owen Todd of Boston.

As outlined in the task force's mission statement, "Attorneys against whom disciplinary charges are brought face a potential loss of the privilege to practice law and the resultant loss of their ability to support themselves and their families. Given these serious ramifications, it is crucial that lawyers in this position are afforded fundamental due process rights, are provided necessary procedural protections and are charged and disciplined in a manner commensurate with the nature of the offense charged."

The task force has been directed to complete its investigation and prepare a report for submission to the House of Delegates at its March 2005 meeting.

"The concept is to get lawyers back involved in the question of lawyer discipline," Bourgeois said.

For instance, the rules by which lawyers are disciplined are issued by the Rules Committee, which consists of a representative from the Supreme Judicial Court office, the Office of Bar Counsel and a representative of the Board of Bar Overseer. No one representing solely the interests of lawyers has any input.

"The result of this situation is that we deal with in Massachusetts is a situation that is not followed in many other jurisdiction," Bourgeois said. "There is no pre-trial discovery, no summary judgment mechanism, no statute of limitations. None of these procedural protections we afford to criminals are afforded to lawyers."

Bourgeois has a healthy agenda for his committee. Among the issues it will consider are diversion programs; why decisions on cases in which lawyers win aren't distributed; why there is an absence of mediation or arbitration; and whether lawyers should continue to have to go through a public hearing if they want to appeal a private reprimand.

"Probably the most flagrant problem is the combined absence of time standards for handling bar discipline cases and statute of limitations," he said. "Many lawyers are under investigation for a complaint who are having difficulty applying in other states because other states are told (the lawyer is) under investigation."

Another example is diversion programs.

"There is no mediation between respondents and bar counsel prior to trial," he said. "Other states do it and it is very effective."

Some states offer mentor systems or training in law office management for lawyers who making an accounting mistake or are disorganized.

"Certainly a number of cases handled by the disciplinary system are better served by education and a management system," Bourgeois said.

Bourgeois said he is most excited by the caliber of people on the committee.

"We have Judge MacLeod, retired judge Owen Todd and many lawyers who have handled a number of important bar disciplinary cases and former prosecutors," Bourgeois said. "It's a really good group, a really strong group."

Among their tasks, committee members will look at rules used by other states in disciplinary proceedings.

Bourgeois emphasized that the committee's role will not be in analyzing or discussing ethics, or the policy on how lawyers should lawyer. This group's job will be solely to scrutinize the process by which lawyers are disciplined.