Understanding our disciplinary system

Issue July/August 2017 By Richard P. Campbell and Suzanne Elovecky

The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may" are permissive and define areas under the Rules in which the lawyer has professional discretion. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion.

- Rule 3:07 Professional Conduct, Scope.

Every practitioner knows intuitively that the Supreme Judicial Court sits at the apex of the state's legal system. Many of us took our oath of office as a lawyer at a ceremony at Faneuil Hall led by a justice of the SJC. Likewise, practitioners realize that the Board of Bar Overseers is a state agency that has significant power over them. After all, we pay our annual license fees to the BBO and get a (flimsy) bar card in return.

The Rules of Professional Conduct do not, however, inform us of the methods and means by which the imperatives of proper conduct are enforced by the SJC. In order to understand the dark side of professional conduct, we need to turn to Rule 4:01 Bar Discipline and to the subordinate rules and policies promulgated by the BBO and the Office of Bar Counsel under a delegation of authority by the SJC.

The SJC asserts "exclusive disciplinary jurisdiction" over any lawyer or foreign legal consultant engaging in the practice of law in the commonwealth. Rule 4:01, §1. The court's paradigm for lawyer discipline is a so-called "unitary system," where a single agency of the court carries responsibility for all administration, investigation, litigation and adjudication related to the oversight of practicing lawyers.

The SJC created the BBO in 1974 through Rule 4:01, §5. The SJC appoints its members, and empowers the BBO to appoint Bar Counsel (with the approval of the court), promulgate rules, lease office space, enter into contracts, and perform other acts necessary or proper in the performance of its duties. Through Rule 4:01, §3(c) and (d) and §6, the BBO is empowered to create hearing committees and appoint hearing committee members and special hearing officers. In Rule 4:01, §7, the SJC gave separate duties and powers to Bar Counsel, despite being appointed by the BBO, including responsibility to "prosecute all disciplinary proceedings before hearing committees, special hearing officers, the Board, and [the] court."

The BBO and the Office of Bar Counsel self-define their respective roles as "an independent administrative body to investigate and evaluate complaints against lawyers." The BBO also describes its administrative role as that of a "tribunal to consider disciplinary charges brought by Bar Counsel." The Office of Bar Counsel adds to its administrative role the "prosecut[ion of] complaints against lawyers."

The BBO and the Office of Bar Counsel share office space at 99 High Street in Boston and operate a common website, where they proudly report that "no public funds are spent to support them" because "[t]he Bar Counsel's and the Board's expenses come solely from the annual registration fees paid by lawyers." The Client Security Board, created by Rule 4:04, also shares office space and the website with the BBO and the Office of Bar Counsel. (Lawyers Concerned for Lawyers, a private nonprofit corporation, and its Law Office Management Assistance Program operate out of offices located at 31 Milk St. in Boston.)

A lawyer who becomes the subject of a bar complaint deemed worthy of investigation by Bar Counsel must appreciate the considerable differences between defending herself in administrative proceedings related to her license and civil and criminal proceedings in the commonwealth's District and Superior courts. Perhaps one glaring difference is the obligation to cooperate with the "prosecutor."

Rule 4:01, §3 imparts an affirmative duty to respond to requests for information from Bar Counsel or the BBO made in the course of processing a complaint. Failure to cooperate by providing the requested information,  failure to respond to a subpoena, or failure to file an answer to a complaint results in "an order of administrative suspension" from the practice of law. Rule 4:01, §3(2). The Rules of the Board of Bar Overseers go further and state: "Failure of the Respondent to cooperate with Bar Counsel's request and any subsequent investigation may result in disciplinary action or administrative suspension under Supreme Judicial Court Rule 4:01, Section 3." BBO Rule 2.6.

Another difference of consequence is manifested by the very strict time sequence for actions and proceedings set forth in the Rules of the Board of Bar Overseers. BBO Rule 3.7(a) provides that "All disciplinary proceedings under these Rules shall be as expeditious as possible, and all time limits shall be mandatory and not discretionary." When a formal petition is served, the lawyer has 20 days to file her formal answer. BBO Rule 3.15 (a) (2) provides that "failure to file a timely answer to the petition shall be deemed an admission of the charges" and that "averments in the petition are admitted when not denied in the answer." BBO Rule 3.15 (a) (3) provides that failure to file a timely answer "shall be deemed an act of professional misconduct" and "shall be grounds for administrative suspension." The answer to the petition must set forth in detail any facts and circumstances "in mitigation." "Failure to include facts in mitigation constitutes a waiver of the right to present evidence of those facts." BBO Rule 3.15 (f).

Within 20 days of filing the answer, Bar Counsel and the lawyer must exchange the names and addresses of all persons having knowledge of facts relevant to the proceedings and, within 10 days, comply with reasonable requests made within 30 days following the filing of an answer for (1) non-privileged information and evidence relevant to the charges or the respondent. BBO Rule 3.23 mandates that a pre-hearing conference be convened where, "to the extent possible … all procedural and substantive issues in the proceeding" will be addressed, including discovery disputes, contested issues, admissions or stipulations as to facts not in dispute, authenticity of documents, matters that might shorten the hearing, limiting the number of witnesses, and establishing a date for the exchange between or among the parties of witness and exhibit lists and exhibits intended for use in the party's case-in-chief or for matters in aggravation and mitigation. The rule mandates that the parties "shall be fully authorized to make commitments regarding those matters." The rulings made at the mandatory pre-hearing conference "control the subsequent course of the hearing, unless modified by the Board chair for good cause shown." BBO Rule 3.26.

The parties then proceed to an evidentiary hearing before a hearing committee or special hearing officer. The BBO rules call for the direct and cross examination of witnesses and the submission of documentary evidence. However, "the hearing and other proceedings shall proceed with all reasonable diligence and with the least practicable delay." BBO Rule 3.29(a). If permitted, closing arguments must follow immediately on the heels of the end of evidence.

Unless modified by the hearing committee chair or special hearing officer, post hearing briefs must be filed within 30 days of receipt of the transcript. "No extensions shall be granted for the filing of proposed findings and rulings or briefs except for good cause shown." BBO Rule 3.43. The rules command the hearing committee or special hearing officer to "report promptly to the Board its findings, conclusions and recommendations, together with a record of the proceedings before it." Objections to the report in the form of a brief on appeal must be filed within 20 days and oral argument is waived unless explicitly demanded (and even then the board need not permit it). BBO Rule 3.50 (b). Objections to the Board of Bar Overseers' final action (in the form of a demand for the filing of an Information) must be filed within 20 days.

A lawyer confronting an investigation and prosecution by Bar Counsel under this paradigm will (or should) find it daunting. Nonetheless, prompt handling of bar complaints is clearly in the best interest of the practicing bar and the general public. The Massachusetts Bar Association's 2004 Report by its Task Force on Lawyer Discipline ("Protecting the Public; Reforming the Disciplinary Process") demonstrated in exquisite detail the "unappealable" hardships imposed on lawyers subjected to inordinately long investigations, including one lawyer who was under investigation for one-half of her 24 year career. "It is simply not possible for us to hold our heads up as a profession that adequately policies itself when it takes longer than four years to even commence discipline against an attorney on a serious charge or 10 to 12 years for the charge to be adjudicated." MBA Report at 24; see Hearing Report, Bar Counsel v. Grossman, BBO File C1-94-0084, pp. 21-22.

The MBA Task Force Report was followed in October 2005 by a "Report of the American Bar Association's Standing Committee on Professional Discipline" and Bar Counsel's May 2006 "Proposals for Improvement of the Massachusetts System of Attorney Discipline." Amendments to SJC Rule 4:01 and the Rules of the Board of Bar Overseers addressing recommendations from the October 2005 American Bar Association report on the Massachusetts disciplinary system were approved by the SJC on April 21, 2009, and took effect Sept. 1, 2009.

The bottom line is the strict timelines for bar discipline benefit the practicing bar. They are here to stay. In the unhappy event that a lawyer hears from the BBO on a potential discipline matter, she should immediately retain experienced counsel. These are not matters to handle pro se.

Richard P. Campbell is a fellow of the American College of Trial Lawyers and a past president of the Massachusetts Bar Association. He founded Campbell Campbell Edwards & Conroy, P.C., a firm with a national practice, in 1983.

Suzanne Elovecky practices at Todd & Weld LLP, where she enjoys a diverse complex commercial litigation practice representing individuals and corporations in contract disputes, employment disputes, automobile dealership matters, shareholder disputes, and trademark, trade secret and copyright disputes. Suzanne is a member of the Women's Bar Association, the Boston Bar Association and the Massachusetts Bar Association (Complex Commercial Litigation Committee; Professional Ethics Committee).