Maintaining the confidence of the public

Issue February 2006

Despite public opinion, which would suggest the contrary, Americans place great trust in us as lawyers. Although we don't deserve most of the negative public opinion, we actually do deserve the trust. We are trusted to hold people's secrets, people's money and people's lives. We understand that our system of justice, in fact our entire American social system, depends upon the preservation of that trust.

One of the keys to keeping that trust is our adherence to a strict ethical code and the public's knowledge that it is enforced. We in Massachusetts have the bar discipline system created by our Supreme Judicial Court in 1974. To administer the ethical code established by the SJC, it created a Board of Bar Overseers, supported by general counsel, for administration and adjudication within the disciplinary system and an Office of Bar Counsel for prosecution of those who breach the code. These are complemented by the Clients' Security Board for the administration of funds for recompense of clients harmed by lawyer misconduct.

It is an impressive and sophisticated system. Most of the staffing throughout the disciplinary system is by lawyers Ñ some paid professional staff, many volunteers. We fund the system entirely from our annual professional dues. We are, to a large extent, a successfully self-policing profession. As our practice assists society in operating according to the rule of law, so also we appropriately govern our profession by it. It is also a system which had existed for over 30 years without substantial review or revision.

I am particularly proud that the MBA, in September 2004, under the direction of President Kathleen O'Donnell, established the MBA Task Force on Lawyer Discipline to study the state's lawyer discipline system. She appointed a committee from the most respected members of our profession with vast experience within the bar, the judiciary and the Board of Bar Overseers. They conducted an extensive review of the system and issued a report: "Protecting the Public: Reforming the Disciplinary Process," which was approved by the MBA House of Delegates in May 2005.

The MBA report describes a complex disciplinary system staffed by talented professionals at the BBO and Office of Bar Counsel together with volunteers at many levels. The report also revealed that numerous programs and operational changes have been made in recent years to improve the delivery of bar discipline. But the committee also found substantial delay still existing in many areas of the disciplinary process, a number of systemic impediments to efficiency and some simply inequitable rules and processes. The report contains 22 recommendations for change.

The SJC requested a review of the system by the ABA in the spring of 2005. The ABA review was undertaken over the summer of last year and its report issued to the public by the SJC in mid January 2006 concurrently with a request to bar associations for comment. The ABA report contains 17 recommendations: many in line with, a few in addition to and a couple at odds with the MBA's. The scope and number of the MBA recommendations s exceeded those of the ABA, presumably because the MBA addressed some issues which the ABA's review did not intend to cover.

The MBA task force is reviewing the ABA report and will be recommending a response to the SJC's request for comment, which will be presented, to the House of Delegates in March. What has been achieved to improve the system of bar discipline in the state thus far is something about which MBA members should be very proud. The improvements to the system which we will recommend to the SJC will certainly lead to improving the public's appreciation for the profession's self discipline as well as the fairness of the system for all involved in it. This is truly an example of shaping the future of the legal profession.