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When Lawyers Misbehave
The Boston Globe - June 27, 2005

By Suzanne M. Blonder and James C. Turner

If your boat was taking on water, would you try to save it by drilling new holes in the hull? Amazingly, that's exactly what a special Massachusetts Bar task force is trying to do with the state's attorney discipline system.

Massachusetts has the slowest attorney discipline in the nation, taking as long as eight years to deal with some cases. With the average case taking more than 30 months, our 2002 Lawyer Discipline Report Card awarded Massachusetts an F in the category of ''promptness."

But instead of addressing this crisis, the state's task force proposes ''reforms" that will allow discipline cases to drag on for 18 months, make it harder to sanction dishonest lawyers, throw out complaints that aren't filed within five years of the lawyer's misconduct, ignore complaints that aren't submitted in a formal written document, and add new legitimacy to secret disciplinary proceedings.

Each of these proposals is a step in the wrong direction -- protecting unethical lawyers at the expense of victimized consumers. When an attorney victimizes a client, discipline should be swift and certain. Where the majority of the evidence shows a lawyer committed misconduct, the public deserves protection. Whenever unethical behavior is discovered, the lawyer involved should be accountable. Clients should not be discouraged from reporting misconduct through hotlines and e-mail. And all attorney discipline should be on the public record.

Does the Massachusetts Bar really believe that it needs 18 months to deal with an unethical lawyer? Mississippi, North Dakota, and Wyoming all process cases in half that time, and Massachusetts's own medical board deals with complaints against physicians in less than a year.

If the bar is serious about fixing the Massachusetts discipline mess, it should adopt a strict timetable that moves from complaint to sanctions in nine months -- 90 days to investigate, 90 days to conduct a hearing and 90 days to impose sanctions. If Delaware, Maine, Rhode Island, and eight other states can meet this timetable, why not Massachusetts?

Just as troubling, the bar apparently thinks the way to deal with the delays is to make it harder to prove misconduct. It would only discipline lawyers if there is ''clear and convincing" proof (the standard courts use in quasi-criminal proceedings), instead of the ''preponderance of the evidence" (the standard courts use in medical malpractice and other negligence cases). Lawyers don't need this kind of special treatment.

The bar also wants a special statute of limitations for lawyers, and to throw out any case that is more than five years old. This proposal would simply stop valid complaints from being heard. Even the ABA recoils at such proposals because ''conduct of a lawyer, no matter when it occurred, is always relevant to the question of fitness to practice."

Yet another bar brainstorm: the Office of Bar Counsel should just ignore all oral communications from consumers because they ''take an inordinate amount of time," and only consider written complaints that are submitted on an ''inquiry form." In an age where telephone hotlines and Internet sites are greatly enhancing consumer access to protective services, the bar should be developing innovative ways to increase access, as did disciplinary officials in Colorado, who not only make time to deal with oral inquiries, but accept complaints over the telephone.

Finally, the Massachusetts Bar wants to expand its policy of imposing private sanctions on unethical lawyers with new secret appeals procedures. Such secrecy is one of the main reasons so many people don't think their complaint will be fairly heard. Secrecy is not the way to speed-up complaint processing, but it is a certain way to further erode public confidence. If Massachusetts really wants a disciplinary system that is trusted and used by consumers, it should embrace principles of sunshine and transparency by opening all proceedings and sanctions to public view.

Despite its chronic delays, our 2002 Report Card rated the Massachusetts attorney discipline system with a B minus -- the best in the nation -- because of its openness, accessibility, and consumer protection. Sadly, if the Bar's proposals are adopted, the state will plummet to one of the worst. The citizens of Massachusetts deserve better.

Suzanne M. Blonder is associate counsel and James C. Turner is executive director at HALT—An Organization of Americans for Legal Reform.