MBA Task Force on Lawyer Discipline recommends 22 changes to system

Issue May 2005

In its report "Protecting the Public: Reforming the Disciplinary Process," the MBA Task Force on Lawyer Discipline has recommended 22 changes. This includes major recommendations, such as the imposition of time standards and a statute of limitations not exceeding five years, as well as technical rule changes.

The recommendations are listed below and will be discussed and debated at the Wednesday, May 25 House of Delegates meeting at The Wesson Estate in Northborough.

Major recommendations

•  Implement and adhere to time standards of six months for each of the following steps in the bar discipline process: time from complaint to decision to prosecute; time from petition to hearing; and time from hearing to decision.

•  Adopt a statute of limitations for lawyer discipline of five years with appropriate exceptions.

•  Change the manner of reporting of inventory and aging of unresolved cases by the Office of Bar Counsel to the SJC or, in the alternative, an audit of the Office of Bar Counsel to determine and report this information to the SJC.

•  Change the standard of proof for lawyer discipline cases as set forth in BBO Rule 3.28 to the standard of "clear and convincing evidence."

•  Implement a Lawyer Practice Assistance Program with a provision for diversion of appropriate bar discipline cases.

•  Implement a formal mediation process or program for all contested bar discipline cases.

•  Revise BBO Rule 3.17 to provide for bilateral discovery including deposition discovery in a manner similar to that afforded to judges in proceedings before the Judicial Conduct Commission.

Technical rule changes

•  Revise BBO Rule 2.1(b)(1) to give Bar Counsel discretion to not investigate a complaint that he or she deems to be frivolous or outside of the board's jurisdiction.

•  Change BBO Rules 2.12 and 3.22 to clarify that formal proceedings following the rejection of an admonition will be presumptively non-public.

•  Revise BBO Rule 3.17 to mandate disclosure of certain exculpatory information to the respondent as well as disclosure of information obtained from certain agencies.

•  Revise BBO Rule 3.18 to require service on respondent of a summary of the charges of misconduct, a copy of any investigative report and all exculpatory material followed by an opportunity for motion to dismiss or for summary judgment.

•  Revise BBO Rule 3.18 to allow the chair of the local Hearing Panel or the Special Hearing Officer to entertain a dispositive motion to dismiss at the close of Bar Counsel's case.

•  Apply SJC Rule 4:01, ß 2, Subparagraph 2, to ensure that the right to a local Hearing Panel will not be lost for respondent attorney without a right to be heard.

•  Adopt a specific rule limiting the use of prior discipline as an "aggravating factor" in bar discipline cases.

Other recommendations

•  Provide specific written disclosures of certain information to potential claimants on the OBC Web site, in brochures published by the OBC, and on the form BBO-1.

•  Adopt a rule requiring that all consumer inquiries to Bar Counsel be reduced to writing (with exceptions for those who face physical or language barriers).

•  Eliminate immediately, upon the issuance of a hearing panel recommendation of "no discipline" or of "private discipline," any reference to pending disciplinary proceedings on the BBO "attorney search" Web site.

•  Require that Bar Counsel interviews and all board proceedings outside of the metropolitan Boston area should be held in the location of the respondent attorney and that facilities in the county in which the respondent maintains his or her law practice be used for such proceedings.

•  Adopt a procedure whereby attorneys facing potential criminal convictions may confer in advance and determine the position of the Office of Bar Counsel concerning the effect of conviction on the attorney's right to practice law.

•  Modify procedures regarding reinstatement to allow (a) an attorney to apply for reinstatement at a time period six months prior to the expiration of the term suspension, (b) to eliminate lengthy hearings concerning "moral qualifications" in cases of specific term suspensions and (c) to respect and enforce the original term of the suspension without re-litigation in the reinstatement hearing.

•  Analyze the manner by which certain litigation costs are apportioned as between Bar Counsel and respondents. Successful respondents should be eligible for award of costs.

•  Publish "John Doe" cases where an attorney is not disciplined by the board (including past and future cases).