MBA task force releases report on lawyer discipline

Issue May 2005 By Krista M. Zanin

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 cases.

"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 Northborough.

The report may be found on the MBA's Web site at 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 the recommendations.

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 inception.

"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 bar.

"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 jurisdictions.

"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 remarkable."

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 stress."

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 group."

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 evidence."

"The vast majority use 'clear and convincing,'" Bourgeois said.

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 report.

"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 point."