The Massachusetts Bar Association Task Force on Lawyer
Discipline, appointed in September by MBA President Kathleen M.
O'Donnell, has completed its study and report on the lawyer
discipline system in Massachusetts.
The report, entitled "Protecting the Public: Reforming the
Disciplinary Process," lists recommended changes to the lawyer
discipline system including the introduction of time standards and
a statute of limitations of five years with appropriate exceptions.
Together, there are 22 recommended changes including those related
to technical rules.
"The most controversial issue will be the issue on delay," said
Task Force Chair Roy A. Bourgeois. "The most significant
recommendations are the cluster involving the delay problem and
those that involve imposition of time standards, use of a statute
of limitations and reporting the inventory and aging of unresolved
"They identify a problem that is important more so for the
public than for the lawyers because the public deserves a bar
discipline system that deals with attorney misconduct faster than
five or 10 years."
The report will be debated and slated for action at the House of
Delegates meeting on Wednesday, May 25 at The Wesson Estate in
The report may be found on the MBA's Web site at
www.massbar.org. Individuals may make comments on the report prior
to the meeting. Comments may be mailed to the MBA at 20 West St.,
Boston, MA 02111.
If the report is approved by the House of Delegates, the MBA
will ask regional and county bar associations to support the report
and collectively ask the Supreme Judicial Court to act favorably on
O'Donnell called the report "comprehensive, thoughtful,
innovative and impressive."
"I commend the authors for producing this extraordinary
document, which strikes the necessary balance between protecting
the public and protecting practicing lawyers in Massachusetts,"
O'Donnell said. "Clearly, a review of the discipline process in
Massachusetts was necessary and appropriate 30 years after its
"I am hopeful the House of Delegates will embrace this proposal
and will empower Roy Bourgeois and me to enlist the support of
other bar associations and bar leaders so when this proposal is
presented to the Supreme Judicial Court, the court will understand
these changes are necessary and are endorsed by all segments of the
"The members of the Task Force, particularly its chair, Roy
Bourgeois, deserve our thanks for their commitment to this project.
The final product is a testament to their dedication and to their
hours of work on behalf of all lawyers."
Time for change
Bourgeois said that Massachusetts needs change because it has not
thoroughly reviewed its discipline system in decades, unlike other
"The things we are talking about here - statute of limitations,
time standards, mediation, fair bilateral discovery - are not
radical concepts," Bourgeois said. "What is remarkable is they are
missing from the bar discipline system. That is what's
The committee discovered cases were in the bar discipline system
sometimes eight and 10 years or longer.
"The public deserves a system that is more responsible than
that," Bourgeois said. "We need to be taken seriously as a
profession that polices itself. We can't do that if a bad lawyer
continues to practice for 10 years. Also, don't we look silly when
we suspend a lawyer for six months or three months for something he
or she did 10 or 12 years ago? We see this over and over again.
This is a problem that is not experienced in other states to the
extent it is happening in Massachusetts."
Massachusetts trailed almost every jurisdiction in the
timeliness of its handling of the more serious cases.
The committee attributed this to a combination of absence of
time standards, the absence of statute of limitation and the
"peculiar manner" in which an inventory of aged cases is reported
to the SJC. Though the court, which oversees the BBO, is told how
many cases are disposed of in a given year, the court is not told
about the number of cases that remain active.
"The Office of Bar Counsel reports to the SJC how many cases of
a certain age are resolved within a year … what they don't do is
say how many unresolved cases are in the inventory and that's
what's important," Bourgeois said.
He said the average processing times for more serious cases is
approximately four years, from the time of the client complaint to
the commencement of the disciplinary proceeding. But years of delay
can be tacked on to the four years for more serious cases that take
longer to process, he said.
In addition to its potential negative consequences on the
public, the delay in processing cases also can have terrible
repercussions for attorneys on a range of issues from malpractice
insurance to bar admission in other states.
"It becomes almost impossible to change jobs," Bourgeois said.
"You have to disclose to the new law firm you have a pending
complaint. Many lawyers we talked to are reluctant to take a
community position or positions with charitable organizations
because they are afraid at some point in the future if they are
prosecuted, charities would be embarrassed. … it causes enormous
Diverse task force
Bourgeois credited the committee for its work, saying its diverse
representation led to the creation of a thoughtful report.
"And this report was largely unanimous," Bourgeois said. "Of the
23 recommendations, 22 of them were unanimous and that one only had
one dissent. That's a pretty remarkable consensus for a diverse
Committee members included Michael Angelini, Ilene B. Belinsky,
Barbara Buell, Jerry Cohen, James R. DeGiacomo, Rosemary A. Macero,
Judge Bonnie H. MacLeod, Michael E. Mone, Michael Najjar, Lawrence
F. O'Donnell, Kenneth D. Small, Paul Sugarman and J. Owen Todd.
A wide array of recommendations
The report recommends a wide array of changes, from those
involving technical rules to changing the standard of proof used in
deciding if lawyers should be disciplined.
Massachusetts, for example, is one of only four jurisdictions
where the standard of proof used is "preponderance of the
"The vast majority use 'clear and convincing,'" Bourgeois
And, in Massachusetts the more difficult standard of "clear and
convincing" is used for disciplinary proceedings concerning judges
and for clerks. For attorneys in Massachusetts, "clear and
convincing" is used only when Massachusetts attorneys filed
contested applications for reinstatement, according to the
"It is troublesome that Massachusetts lawyers can be sanctioned
for offenses occurring many years ago by a mere '51% probability'
as is inherent in the 'preponderance of the evidence' standard,"
states the report. "The Task Force sees little difficulty if the
lesser standard of proof remains for proof of aggravating factors
or mitigating factors, but the basic and essential finding of
attorney wrongdoing should be made upon the higher standard of
'clear and convincing evidence.' Massachusetts should come into
line with the overwhelming number of jurisdictions on this