by David A. Kluft
This year marks the 50th anniversary of the modern bar discipline system in Massachusetts. In 1974, the Supreme Judicial Court (“SJC”) adopted new rules that created three independent administrative bodies, all of which are funded by the annual registration fees paid by attorneys. First, the Board of Bar Overseers (“BBO”), in addition to its responsibility for attorney registration, appoints hearing committees to adjudicate disciplinary matters and makes disciplinary recommendations to the SJC. Second, the Office of Bar Counsel (“OBC”) investigates complaints alleging professional misconduct by lawyers and prosecutes formal disciplinary charges before the BBO. Third, the Clients’ Security Board (“CSB”) manages a fund available to reimburse eligible clients who were victims of theft by attorneys who have resigned, have been suspended or disbarred, or died before they could be disciplined.
Bar Discipline Before 1974
The history of attorney discipline in Massachusetts is nearly as old as the practice of law in Massachusetts. London attorney Thomas Lechford emigrated to Boston in 1638, becoming the first practicing lawyer in New England. On September 3, 1639, Lechford also became the first lawyer disciplined in New England. After he tried to plead a case to the jury outside of court, he was “debarred” from making further appearances in court on behalf of clients. Records of the Court of Assistants of the Massachusetts Bay Colony vol. 2, 1630-1692, 87 (Rockwell and Churchill Press, 1904).
In the 19th century, attorney discipline was meted out by individual judges “in the nature of a punishment for contempt,” as part of each court’s inherent power to control the courtroom. Matter of Randall, 93 Mass. (11 Allen) 473, 482 n. 2 (1865). By the early 20th century, attorney discipline could be initiated by bringing a petition to the attention of the Superior Court, with appeal to the SJC and its authority to preserve the “purity and dignity of the court by removing an unfit officer.” Bar Association of the City of Boston v. Casey, 211 Mass. 187, 192 (1912). More often than not, the petitions were brought by local bar associations. At the time, there were no written ethical rules in Massachusetts, but by statute an attorney could be removed for “deceit, malpractice or other gross misconduct.” G.L. c. 221, § 40.
By 1970, bar discipline across the country was often dominated by bar associations, which conducted largely secretive proceedings with no professional staff. Board of Bar Overseers, Massachusetts Bar Discipline History, Practice and Procedure 3 (2018). Chief Justice Wilkins observed that this system was “regionalized, uneven in its quality, largely unpublicized and subject to the charge of discriminatory or at least indifferent enforcement.” Wilkins, A Justice’s Perspective of the First Twenty Years of the Board of Bar Overseers, 79 Mass. L. Rev. 134, 137 (1994). In 1970, an American Bar Association report described the situation as “scandalous” and called for “the immediate attention of the bar.” ABA Special Commission on Evaluation of Disciplinary Enforcement, Problems and Recommendations 1 (1970). Simultaneously, states were also beginning to implement measures for the reimbursement of client losses due to attorney misconduct.
Bar Discipline Since 1974
In 1972, the SJC began reforming the Massachusetts bar discipline system by adopting the Canons of Ethics and Disciplinary Rules Regulating the Practice of Law (359 Mass. 796 (1972)), which were modeled after the recently adopted ABA Code of Professional Responsibility. These became the first written rules for attorney ethics in the Commonwealth. Then, in June 1974, the SJC adopted S.J.C. Rule 4:01, which created the BBO and OBC, establishing a disciplinary system to enforce the new rules with an appointed board, a full time staff and statewide jurisdiction. At the same time, the SJC also adopted S.J.C. Rule 4:04, which created the CSB and its appointed board.
The new rules became effective on September 1, 1974. Almost immediately, the new system was confronted with perhaps the two most high profile cases in the history of Massachusetts bar discipline. First, bar counsel recommended, and the SJC ordered, that former White House Counsel Chuck Colson should be indefinitely suspended following his guilty plea to obstruction of justice in connection with the “Pentagon Papers” trial of former Defense Department analyst Daniel Ellsberg. Matter of Colson, 1 Mass. Att’y Disc. R. 64 (1975). Second, accused spy Alger Hiss, who had been convicted of perjury in 1950 and then disbarred in 1952 based on an information filed by the Boston Bar Association, was reinstated by the SJC despite contrary recommendations by the BBO and OBC. In the Matter of Alger Hiss, 368 Mass. 447 (1975).
Some of the most notable developments and important cases since then include:
- In 1978, the SJC appointed the first layperson to serve as a BBO member alongside the lawyer members. The BBO now has four laypeople among its 12-member board. In 1993, nonlawyers also began serving on hearing committees in individual cases. Hearing committees now contain two lawyers and one layperson.
- In 1985, the SJC created the Interest on Lawyer’s Trust Accounts (IOLTA) program (now part of R. Prof. C. 1.15). The program became mandatory in 1990, requiring lawyers to safeguard client funds in trust accounts.
- Originally, disciplinary proceedings were confidential until the BBO’s recommendation for discipline reached the SJC. In 1993, the SJC amended Rule 4:01 to make formal proceedings before the BBO public. Investigations by the OBC remain confidential until formal proceedings are initiated.
- In Matter of Fordham, 423 Mass. 481 (1996), a lawyer was publicly reprimanded after he billed a client over $50,000 for a single OUI criminal case, even though he had never litigated an OUI case before. Bar counsel alleged, and the SJC agreed, that the fee had been excessive, and that it was improper to bill the client for the time spent learning a new area of law, even though the lawyer’s work on the case had been competent. The case also established the OBC’s right to appeal from a decision of the BBO.
- In Matter of Kane, 13 Mass. Att’y Disc. 321 (1997), the BBO established guidelines for disciplinary recommendations in cases involving allegations of neglect and incompetence. Those guidelines are still used today. Private admonitions are generally appropriate where there is no client harm; public reprimands when there is harm; and suspensions for harm coupled with a pattern of neglect or other aggravating factors.
- In 1998, the Canons of Ethics at J.C. Rule 3:07 were replaced by the Massachusetts Rules of Professional Conduct, which are based upon but not identical to the ABA Model Rules. S.J.C Rule 3:08, which had contained separate rules for lawyers engaged in criminal prosecution and defense, was stricken.
- In 1999, the OBC established the Attorney Consumer Assistance Program (“ACAP”) as a central intake unit to screen initial complaints from the public and to resolve minor matters without referral for investigation. Since its inception, ACAP has evaluated and processed well over 100,000 consumer inquiries and grievances, and now resolves over 95% of client complaints at the intake stage.
- In Matter of Curry, 450 Mass. 503 (2008), and Matter of Crossen, 450 Mass. 533 (2008), two attorneys were disbarred for their roles in a scheme to influence the outcome of a contentious litigation, which included trying to force a judge’s recusal and secretly recording one of her clerks during a sham job interview. These cases established that the duty of zealous representation does not justify conduct intended to harm the orderly administration of justice.
- The important amendments to the Massachusetts Rules of Professional Conduct since 1998 are too numerous to catalogue here, but a particularly notable set of amendments became effective in 2015. Among other things, they overhauled the duty of confidentiality (Rule 1.6); introduced the concept of technology competence (Rule 1.1, Comment 8); required that conflict waivers be in writing (Rules 1.7, 9); and for the first time, established duties to prospective clients (Rule 1.18). More recently, following the Court’s decision in Matter of Olchowski, 485 Mass. 807 (2020), the SJC adopted Rules 1.15(h) & (i), effective September 1, 2024, which address what lawyers should do with unidentified and unclaimed funds in their IOLTA accounts.
- In Matter of Zankowski, 487 Mass. 140 (2021), the most high-profile excessive fee case since Fordham, the SJC issued a two-year suspension to a ‘big law’ equity partner for excessive and fraudulent billing. In doing so, the Court emphasized the importance of honesty in billing practices and rejected the lawyer’s claim that workload and familial pressures excused her misconduct. However, the Court also acknowledged the work of its recently created Steering Committee on Lawyer Well-Being and how “taking steps to promote lawyer well-being … [will] improve the quality and ethical standing of the profession as a whole.”
- In Matter of Foster, 492 Mass. 724 (2023), the OBC brought proceedings against three Assistants Attorney General who allegedly withheld exculpatory evidence during the prosecution of state drug lab chemist Sonja Farak, leading to a disbarment for the lead prosecutor. The SJC found that the lesser discipline of a public reprimand was appropriate for the lead prosecutor’s supervisor, because the supervisor’s good faith reliance on his subordinate was a special mitigating factor.
- The CSB, after surviving an early challenge to its constitutionality, Hagopian v. Justices of the Supreme Judicial Court, 429 F. Supp. 367 (D. Mass. 1977) (collection of dues to fund CSB did not violate equal protection or due process), aff’d, 434 U.S. 802 (1977), continues to evaluate claims by clients who have suffered losses caused by the conduct of dishonest lawyers. In total, it has awarded over $59 million to more than 2,500 claimants.
In 2024, the Massachusetts bar discipline continues to adjust to developments in the law and in the practice of law. Formal disciplinary hearings and reinstatement hearings before the BBO can now be viewed live over the internet, and the OBC is increasingly called upon to investigate and prosecute cases related to new technology. E.g., Matter of Smith, 35 Mass. Att’y Disc. 554 (2019) (revealing confidential client information on Facebook); Matter of Rosin, PR 2023-12, 39 Mass. Att’y Disc. R. __ (2023) (improper witness coaching during Zoom deposition). The BBO, OBC and CSB continue to strive to fulfill the purposes for which the modern disciplinary system was created, including the protection of the public, the education of the bar, and the creation of fora for client grievances.
David Kluft is an Assistant Bar Counsel with the Massachusetts Office of Bar Counsel. The author is indebted to the advice of bar counsel Rich Abati and BBO Assistant General Counsel Jeffrey Woolf; and prior articles by former bar counsels Arnold Rosenfeld and Connie Vecchione.
