Practice Tips for Navigating the Disciplinary Investigation Process Before the Office of Bar Counsel

by Heather LaVigne

Practice Tips

Introduction

Massachusetts attorneys may find themselves involved in disciplinary investigations conducted by the Office of Bar Counsel, and disciplinary proceedings before the Board of Bar Overseers (“BBO”), either as the subject of the proceedings, or as counsel to a lawyer facing misconduct allegations. This article provides an overview and practice tips for navigating disciplinary investigation by bar counsel. It is not a substitute for reading the Rules of the Board of Bar Overseers and Supreme Judicial Court Rules 4:01 and 2:23 governing bar discipline procedures. Additionally, practitioners should consult the BBO’s website, which contains the BBO’s policies and guidance relating to bar discipline; the Board’s treatise, “Massachusetts Bar Discipline, History, Practice, and Procedure”; and information and orders relating to bar discipline practice in light of the COVID-19 pandemic.

The Board of Bar Overseers and Office of Bar Counsel

The BBO has a volunteer board and a full-time staff. It is charged with administering the bar disciplinary system and the attorney registration system. The BBO appoints hearing officers to conduct disciplinary proceedings and to make recommendations on discipline to the BBO. The BBO’s Office of General Counsel advises and assists the BBO and hearing officers throughout the process.

The Office of Bar Counsel is charged with investigating allegations of attorney misconduct and, if warranted, prosecuting disciplinary charges before the BBO.  Within bar counsel’s office, the Attorney Consumer Assistance Program (“ACAP”) serves as the office’s intake unit. In carrying out its duties, ACAP may be able to resolve minor issues or may refer the complaint to be opened for formal investigation.

Representation by Counsel in Bar Discipline Proceedings

While there is no right to counsel in bar discipline proceedings, it is recommended that attorneys facing allegations of misconduct exercise their ability to choose to be represented by counsel.  Attorneys who are under investigation are referred to as “respondents” and their counsel as “respondent’s counsel.” For attorneys who cannot afford counsel, the BBO’s General Counsel can assist in locating pro bono representation.  Counsel must be licensed to practice law in Massachusetts to appear in a bar discipline proceeding. In some situations, a lawyer licensed in another jurisdiction may request permission to appear. 

Investigation by the Office of Bar Counsel

The Complaint and Response

It is important that attorneys are responsive, cooperative, and forthcoming at all stages of bar counsel’s investigation.  The disciplinary process begins when bar counsel first receives information about alleged attorney misconduct. Typically, information about alleged misconduct comes from:

• A client, opposing party, or lawyer who contacts the office by phone or in writing;
• Banks who report dishonored checks drawn on IOLTA accounts;
• The BBO registration department, which reports attorneys who pay registration fees from an IOLTA account;
• Courts and tribunals in any jurisdiction who may report concerns about attorneys appearing before them in professional and personal capacities; and
• Other disciplinary authorities.

Bar counsel may also open an investigation based on information from any source, which may include newspapers, court decisions, and internet postings that come to bar counsel’s attention.

Many concerns about attorney conduct, such as a failure to return a phone call or a delay in providing the client their file, can be resolved by ACAP without opening a formal investigation.  It is important that attorneys who receive calls from ACAP staff respond to those calls, as this may resolve the issue to the client’s satisfaction and avoid the need to open a formal investigation. For serious allegations, the matter is assigned to an assistant bar counsel to begin a formal investigation. The purpose of the investigation is to gather facts to determine whether the allegations are supported and, if so, whether formal disciplinary charges are warranted. 

The assistant bar counsel informs the respondent of the complaint, in writing, at the primary address listed on the respondent’s annual registration statement.  As a result of remote work protocols due to the COVID-19 pandemic, this notice may be sent to the respondent’s registered email address.  It is, therefore, important that attorneys keep their email and mailing addresses up to date with the BBO registration department and check those mailboxes regularly.  If there is a written complaint or some other writing (such as a dishonored check notice), that writing is typically provided to the respondent at this time. If the complaint is brought by an individual, that person is typically referred to as the “complainant.”

Respondents may decide to hire an attorney to prepare the response.  While there is no formal process for entering an appearance, respondents’ attorneys should alert bar counsel that they represent the respondent in the matter. An email to the assistant bar counsel handling the case suffices.

The respondent must respond to the complaint in writing, within 20 days.

Key Tip: It is imperative that the response be provided in a timely manner, as failure to respond itself constitutes misconduct that may result in the issuance of a subpoena or the administrative suspension of a respondent’s license to practice law. Contact the assistant bar counsel promptly if an extension is required.  Except in exigent circumstances, the first request for a reasonable extension typically will be granted. 

In the letter to the respondent, bar counsel will ask the respondent to address the allegations in the attached complaint and may also ask the respondent to address specific issues and provide certain documents such as a fee agreement, IOLTA records, billing statements, or an entire client file. 

The response should provide a narrative explanation of the respondent’s version of events. It must not simply admit or deny allegations. Further, the respondent should not make inflammatory statements about the complainant in the response. The focus of the response should be to explain the matter to bar counsel, and to correct any inaccuracies that the respondent believes exist in the complaint. 

While the respondent should provide whatever information he or she thinks will aid bar counsel in understanding the matter, the respondent should pay attention to the specific requests made by bar counsel as these will often indicate the main areas of concern. 

Key Tip: Respondents must provide the documentation bar counsel specifically requests.  Respondents should also provide any additional documentation that supports their version of events. If the respondent is unclear as to what documentation bar counsel requests, respondent (or respondent’s counsel if represented) should contact the assistant bar counsel for clarification. Similarly, if the respondent does not have or is working on obtaining a document, the respondent should indicate that in the response.

The respondent should organize the response and supporting documentation with exhibit designations or Bates numbers and refer to those designations in the narrative response. 

In the response, the respondent may suggest a certain outcome, such as closing the file. In cases of more serious misconduct, the respondent’s counsel may advise the respondent that the investigation is likely to result in a finding of misconduct and suggest a resolution in the answer.

The answer typically will be provided to the complainant, in full, for comment. Therefore, if the respondent provides documents that he or she believes should be withheld from the complainant, the respondent must specifically and clearly make such a request. At least initially, bar counsel usually will agree to withhold documents such as personal medical information or bank statements but will not often agree to withhold an entire response. The complainant’s comments typically are not provided to the respondent unless the assistant bar counsel believes they warrant an additional response.

Bar Counsel’s Additional Investigatory Options

Bar counsel may also obtain information from other sources. These sources include, but are not limited to, publicly available court filings, information obtainable by a Freedom of Information Act or Public Records Law request, interviews of potential witnesses, and information from banks and other entities, pursuant to a subpoena approved by a reviewing member of the Board.  A respondent should not, however, decline to produce a requested document on the grounds that bar counsel can locate it elsewhere. During the investigation, the respondent is not entitled to copies of the documents and information bar counsel obtains. At this stage, the respondent has no right to issue discovery or request the issuance of subpoenas but will be permitted discovery if formal charges are brought. 

As part of the investigation, bar counsel may also decide to take the respondent’s statement under oath. A statement under oath is similar to a deposition. The respondent will be sworn in and the assistant bar counsel will likely show the respondent exhibits and ask questions about them. The statement will be recorded, and if warranted, may later be transcribed and sent to the respondent. The respondent may choose to be represented by counsel at a statement under oath.  The statement under oath may be scheduled with the participation of the respondent or by subpoena in the case of non-cooperating respondents.

Key Tip:  If a subpoena to appear has not already been issued, the failure to appear can result in a subpoena requiring the respondent to appear on a new date. Especially in circumstances where a subpoena to appear has already been issued, a respondent’s failure to appear is likely to result in the immediate administrative suspension of the respondent’s license to practice law without hearing. Failure to be truthful during a statement under oath may be grounds for additional discipline beyond what is warranted for the underlying misconduct. Additionally, if there is a hearing in the matter, the respondent’s statement under oath may be used as substantive evidence and to impeach the credibility of the respondent’s hearing testimony. 

Depending on the circumstances, the assistant bar counsel may be able to discuss possible resolutions to the investigation with the respondent or respondent’s counsel after this meeting.

Resolutions Without Public Discipline

Once bar counsel has completed the investigation, there are several possible resolutions short of disciplinary charges. Bar counsel may determine that the file should be closed with no disciplinary action. In some cases, bar counsel may close a case with a warning concerning conduct that may not warrant disciplinary charges. This is also considered closed without disciplinary action. For minor misconduct that can be remediated through education or counseling, bar counsel may offer to enter into a diversion agreement with the respondent. Pursuant to the diversion agreement, the respondent will pledge to engage in certain remedial efforts which may include mental health counseling, anger management counseling, career/practice assistance, trust account training, continuing legal education, and ethics courses. Bar counsel provides the diversion agreement to a reviewing Board member for approval. If approved, the respondent must complete the terms of the diversion agreement or be subject to discipline.

Key Tip: Even before the resolution stage, respondents’ counsel may serve their clients well by suggesting they contact Lawyers Concerned for Lawyers and the Law Office Management Assistance Project when the situation so warrants.

Bar counsel may also propose to resolve the file by admonition, which is considered private discipline. An admonition may be appropriate when the misconduct did not cause harm. An admonition must be approved by a reviewing Board member. If approved, the complainant is informed that the respondent has been admonished, but it is otherwise confidential. If bar counsel believes an admonition is warranted, but the respondent does not agree, bar counsel will present the admonition to the reviewing Board member. If approved, the respondent will be notified that he or she has 14 days to request a hearing on the admonition. The hearing is held on an expedited basis before a special hearing officer and remains confidential.

Agreements to Public Discipline

For more serious misconduct, bar counsel may offer to stipulate to public discipline in the form of a public reprimand, a suspension, or a disbarment. If the respondent agrees, the stipulation must be presented to the BBO for approval. Included with the stipulation are bar counsel’s petition for discipline explaining the charges, the respondent’s answer, and a stipulation to the facts and rule violations. 

Stipulations prior to the filing of a petition for discipline is often preferable to many respondents because it provides the respondent with some input as to what becomes part of the public disciplinary record. For example, bar counsel may agree to omit some disputed issues from a petition for discipline filed with a stipulation that would otherwise appear in a petition for discipline filed in a contested disciplinary proceeding. A respondent, however, should not expect bar counsel to agree to a sanction that is less severe than the typical sanction for the misconduct in the stipulation. 

Key tip: If a respondent has evidence of mitigating circumstances that he or she believes warrant consideration, the respondent should provide that evidence to bar counsel as early as possible, and certainly by the time settlement discussions begin.

Once a stipulation is submitted to the BBO, the BBO can accept or reject the stipulation. If the BBO rejects the stipulation, it will notify the parties and provide 14 days to submit briefs in support of the stipulation. In case the BBO does not accept the stipulation, respondent’s counsel should consider whether to reserve the right to dispute the facts and rule violations at a future hearing or whether the respondent and bar counsel will be bound to the facts and rule violations in the stipulation. Such language must be in the stipulation documents presented to the BBO.

Additionally, a respondent under investigation cannot simply resign in order to avoid the disciplinary process. A respondent may decide, however, to waive hearing and agree to a resignation as a disciplinary sanction for misconduct warranting a suspension or a resignation and disbarment for misconduct warranting disbarment. Further, a respondent who can no longer practice due to a physical or mental impairment may consider discussing disability inactive status with bar counsel.

If the parties cannot come to an agreement on discipline, and bar counsel has determined that public discipline is warranted, bar counsel will initiate public disciplinary proceedings. Public proceedings before the BBO will be the subject of a forthcoming Practice Tips article.

Conclusion

Throughout any disciplinary investigation, respondents would do well to remember that the mission of the Office of Bar Counsel is to protect the public from unethical conduct by attorneys and to preserve and enhance the integrity and high standards of the bar.  As a result, cooperation in the investigative process is key, and failing to respond appropriately to bar counsel’s requests, and/or to participate in each stage of the investigative process, can only result in additional adverse action.  Respondents should also review their malpractice insurance policies, as many provide at least some coverage for representation in disciplinary proceeds.  Respondents’ counsel provide a valuable service to respondents by helping them navigate the process, and in negotiating a resolution with bar counsel.