f/k/a . . . the archives

April 26, 2005

bar & guild

Filed under: — David Giacalone @ 2:56 pm

As we approach Law Day, bar associations across the nation will be heard congratulating themselves on all they do to promote justice and protect the public. (see our post) At this weblog, “we” think such self-aggrandizement should be avoided in favor of a bit of soul-searching. Most bar groups spend much of their time acting like guilds — promoting the interests of their members, and“protecting” the public from competition, information, innovation and choice. Maybe Law Day 2005 (May 1st) can be an occasion to re-align our priorities and become public service organizations, improving the profession for the sake of our clients, the justice system and the entire public.


MassMap Because I’ve been following the unlawful joint boycott activities of assigned counsel in Massachusetts over the past two years (with “bar advocates” using coercive behavior to achieve higher fees), I’ve observed the Bay State bar more closely than I might have done otherwise. As a proponent of the rights of clients, I have not been edified. Instead, I’ve come to the conclusion that members of the Massachusetts bar, when acting in groups and given the opportunity, far too often put the interests of lawyers above those of clients and the public. And, they do it with arguments so petulant or specious that even their legitimate concerns seem suspect. [If I had to name the archetypal Bay State law firm, it would be "Wein, Karp & Mone, Unlimited".]

Thus, I was a little skeptical when I read at Ben Cowgill’s Legal Ethics [We]blog last week that a Task Force of the Massachusetts Bar Association has released a report on the State’s lawyer discipline system. (MBA Press Release, April 20, 2005). That’s despite — or maybe because — the Report is titledProtecting the Public: Reforming the Disciplinary Process”. I discuss this topic below.

First, I want to give you a few examples:

  • In March 2005, the House of Delegates of the Massachusetts Bar Association (MBA) voted to oppose a Rule that would require lawyers to disclose whether they maintain malpractice insurance. MBA’s Attorney Financial Responsibility Disclosure Task Force voiced the concern that mandatory disclosure would lead to a requirement that all lawyers carry malpractice insurance (watch those slippery slopes). The chairman of the Task Force noted: “We’re puzzled as a subcommittee as to why the ABA adopted it and why the SJC is considering adopting it.” (This weblog supports such requirements, which exist in at least 8 states.)

  • Last year, MBA’s Task Force to Define the Practice of Law in Massachusetts proposed what appears to be the broadest definition in the nation — thus making more conduct fall within the Unauthorized Practice of Law . In December 2004, the FTC and the Department of Justice submitted Comments to MBA, saying that such an overbroad rule would hurt consumers by raising prices and limiting choice, and was not justified by their consumer protection rationale. (Federal Trade Commission press release, Dec. 16, 2004). In May, 2004, one Task Force member got to the nub of their proposal (as reported in the MBA Lawyers Journal):

    “Business and government is seeking to level the playing field on the theory that consumers will have more choice and this will drive prices down for legal services,” said task force member Jon Davis in helping co-chairs Denise Squillante and Lee Gartenberg introduce the proposal. Citing several reasons why the bar should consider adopting a definition, Davis added, “we are going to be marginalized out of practice.”

  • Also, in 2004, MBA was faced with HB 180, a bill in the Massachusetts House that would enable nonlawyers to compete with lawyers to perform certain real estate closing services. FTC and Justice Department staff urged the Massachusetts Legislature to pass the legislation. According to the FTC press release (Oct. 12, 2004)

    The bill, HB 180, would amend the General Laws of Massachusetts to authorize nonlawyers to perform real estate closing services, such as drafting deeds, mortgages, leases and agreements; examining titles; issuing title certification or policies of title insurance; and representing lenders as their closing agents. “As the staff analysis shows, HB 180 is likely to benefit consumers in Massachusetts by encouraging competition that leads to lower prices, more convenient services, and the option to use Internet-based loan services,” noted FTC Chairman Deborah Platt Majoras.

How did MBA react to HB 180? Its House of Delegates voted to oppose the Bill. Kathlleen M. O’Donnell, who was then chair of the Property Law Section (and is now President of MBA) called HB 180 “an attack on the practice of attorneys.” Jon Davis, president of the Real Estate Bar Association of Massachusetts, warned: “This bill is ominous . . . This bill is not based on any benefit to the consumer. It’s only for the benefit of the corporations backing it.” [Davis also noted that most states in the U.S. don't require lawyers at closings, as Massachusetts does.]

  • In 1997, a Pro Se Committee Report from the State judiciary on probate and family court issued a “Challenge for the Future”, asking for the cooperation and assistance of bar leaders, and recommending the creation of educational materials for pro se litigants and court staff, plus Self-Help facilitators, hotlines, simplified forms, unbundling efforts, and more. Four years later, the then-President of MBA, Edward P. Ryan, Jr., gave the bar group’s response, in an address to a statewide conference on the unrepresented litigant. It’s titled Educating pro se litigants on the need for counsel. As suggested by its title, Ryan asserts that self-represented litigants (plus judges and court employees) must be educated so they understand that every litigant needs a lawyer. He states that a program would be established, that would match pro se litigants with attorneys who would charge them for their services (but, maybe a little less than usual, if necessary to get the business). Ryan also complained that the self-represented got too much help at court, giving the “represented” clients the impression that they too might not need lawyers the next time they are at court. (prior post)

  • You might have thought that the The Massachusetts Association of Court Appointed Attorneys (MACAA) and MBA would have been thrilled with the Report issued earlier this month by a special commission formed to study the “indigent defense crisis” in the State. The Report recommends a 50% increase in fees over the next three years (on top of a 25% increase received this year), and the establishment of two pilot projects that would use more public defenders in two rural counties, helping to bring Massachusetts closer to national standards, which advise against the almost total reliance on private attorneys for indigent defense that now exists in those and other Massachusetts counties. (see our post on the Report, and on MACAA’s response; and MACAA press release, April 22, 2005))

    PlymRock Sadly, you’d be wrong. Both MBA and MACAA have instead called for immediate implementation of the full pay hike (MACAA wants even more, including interest, for a total of a 113% increase in the past two years) and for full rejection of the pilot concept (see MBA press release; Mass. Lawyers Weekly, April 11, 2005). The answer to my question “will MACAA react like a guild to indigent defense report?” is clearly in the affirmative. Saving private counsel jobs and increasing their fees will clearly come before the public interest or the smooth operation of the justice system.

On April 17th, MACAA’s board voted unanimously that rates should be “fully implemented now” and that the pilot programs should be rejected. In paragraph after paragraph, MACAA President Thomas Workman whines that “No professionals in Massachusetts have ever had pay rates ‘phased in’” (nor have assigned counsel in any other state or nation!). Of course, Workman doesn’t mention the size of those other pay hikes or the fiscal situation (imagine giving policemen or judges, or independent snow plow operators a 67% increase in one year). As for the pilot projects that would use state-employed public defenders MACAA’s Board states:

“Pilot programs are only needed to collect data, and this is not
necessary. Either the programs are being implemented for some
ulterior purpose
, or they are not needed. In either case, the state
should not waste money on unnecessary pilot programs.”

More to the point, MACAA President Workman vows

MACAA will not ‘sell out’ court appointed attorneys on any panel” by recommending pilot projects.”

Disciplinary System “Reforms”

With this background, I took a look at Protecting the Public: Reforming the Disciplinary Process, which, as Ben Cowgill notes, “recommends a number of changes that would make the system more fair in its treatment of lawyers who are charged with ethical violations.” The Report states:

“Concepts such as time standards, statute of limitations, mediation, and fair bilateral discovery are common in many regulatory and disciplinary systems. What the Task Force has found of concern is that so many of these commonplace concepts are absent from the lawyer discipline system. . .”

I’m all in favor of a discipline system that is both fair and effective, and the Report makes some valid points and proposals. However, I do not believe it lives up to the title “Protecting the Public.” In fact, the fairness issue seems to be an artful ploy to slip in other major changes that can only weaken the effectiveness and accessibility of the system for the client. Here is the entire description of the Report given in a press release announcing its completion (MBA Press Release, April 20, 2005; Boston Globe, “Mass lags in disciplining lawyers”, by Jenn Abelson, April 20, 2005):

“The report, entitled ‘Protecting the Public: Reforming the Disciplinary Process,’ lists recommended changes to the lawyer discipline system including the introduction of time standards and a statute of limitations of five years with appropriate exceptions. Together there are 22 recommended changes including those related to technical rules.”

I believe that only one major proposal is beneficial for both the client and the attorney — that is the recommendation for clear time standards, so that invesitgations will not drag on for years, nor be stalled at any of the many stages. In fact, notwithstanding its conclusion in 2002 that the Massachusetts lawyer discipline system is the best in the nation, the legal reform group HALT specifically noted that the lack of timeliness in completing its investigations is a major deficiency in the system.

HALT pointed approvingly, however, to several other aspects of the Massachusetts system that would be undermined by the proposals in the MBA Report and are far from mere “technical” changes.

tiny check First, under the current rules, misconduct must be proven through a “preponderance of the evidence” – the same standard required in other civil proceedings. However, “Protecting the Public” wants to make it more difficult to find that an attorney has violated the ethical rules, by imposing the higher standard of proof “clear and convincing evidence.”

tiny check Second, HALT praised Massachusetts as Runner Up: Best Telephone Services and for developing an Attorney and Consumer Assistance Program (ACAP) to help consumers resolve problems with their attorneys before a formal grievance must be filed. The MBA Task Force would virtually dismantle this client-friendly program. Now, ACAP resolves thousands of disputes without the need for any formal grievance being filed — through explanations to the telephone caller or by making a quick call to an attorney’s office (e.g., to suggest he or she return the client’s call or send a more complete bill).

The Report frets that this program has “been the victim of its own success” (with inquiries up from 2500 to 6000), even though only half as many formal grievances are now being filed. The proposed solution is that “all consumer inquiries to Bar counsel be reduced to writing with exceptions for those who face physical or language barriers.” This is called a “a minor requirement, no greater than is called for by a small claims action.” [Note: the current procedural rule 2.2 already requires that "Each grievance relating to alleged misconduct of a lawyer shall be in writing and signed by the complainant and shall contain a brief statement of the facts upon which the grievance is based."]

The MBA Task Force wants to “protect the public” further by:

  1. Substituting the current rule giving Bar Counsel discretion not to act on stale claims, with a formal 5-year statute of limitations. (The resulting increase in public trust in the system is the first reason given for this proposal.)
  2. Mandating mediation between the complaining client and the attorney before any hearings are held. Not one word in the Report concerns the fairness to the client of such a requirement. (Ed. aside: how many of these lawyers have ever suggested that a client of theirs mediate instead of litigate?)
  3. Adopting a procedure whereby attorneys facing potential criminal convictions would be able to know in advance of any criminal plea the exact discipline that would be recommended by the Office of Bar Counsel concerning the effect of conviction on the attorney’s right to practice law.
  4. Adopting a specific rule limiting the use of prior discipline as an “aggravating factor” in Bar Discipline cases.

In true MassEsq style, the Report concludes with the Task Force members pointing out that “Although the present system, as adopted by the SJC, was not identical to that initially proposed by the MBA, the Association has lent its support and to this day maintains an integral role in its functioning.”


MassMapN

To close this exploration of bar associations acting as guilds, I’ll quote from MBA’s description of itself on its website:

About the Massachusetts Bar Association

The Massachusetts Bar Association (MBA) is a non-profit organization, founded in 1910, that serves the legal profession and the public by promoting the administration of justice, legal education, professional excellence and respect for the law. The MBA represents 18,500 attorneys, judges and legal professionals across the commonwealth.

The MBA sponsors a wide range of programs and services to the public, including a statewide Lawyer Referral Service, monthly Dial-A-Lawyer phone-in programs, educational activities for high school students, elder-law outreach, speakers bureau and more.

The MBA also is very involved in monitoring legislation in Massachusetts that affects the legal profession, the judicial system and the public’s access to justice.

Here’s the first sentence of MACAA’s self-description:

“The Massachusetts Association of Court Appointed Attorneys is a non-profit corporation established in 2003 to ensure that the highest quality of legal representation is given to each and every person entitled to court appointed counsel regardless of ability to pay.”

The reader can decide whether the descriptions are accurate or ironic, and whether his or her own state and local, or specialty bar associations compare favorably with MBA’s and MACAA’s rhetoric and record of public service.

update: Bob Ambrogi of LawSites has come to the defense of the MBA; read his post and my reply here.

afterthought (Jan. 25, 2006): Going through the ethicalEsq archives, we found this ending to our post Finding Self-Help Info on Bar Association Websites (Good Luck!), from Aug. 2003, a thought it was worth repeating:

There really is no excuse for bar association websites to be so barren or hostile on the topic of self-help law, alternative dispute resolution, or unbundling of services. If lawyers and their associations are not willing to use websites to truly inform consumers about their options, they should at least delete all the pious statements about putting the client’s interests first, living up to the highest standards of ethics, and existing to serve the public.

Instead, bar association websites might conspicuously post this disclaimer:

Warning: We are a guild, here to serve the economic interests of our members. We’ll fight (’til your last dollar) to protect you from any legal adversary and to secure your legal rights. However, when it comes to your financial interests versus our own, we will put ours first whenever possible.


chestnuts flying–
all the chickens
squawking!


Kobayashi ISSA, translated by David G. Lanoue


  • MassBird Serendipity led me to discover that the state bird of Massachusetts is the chickadee. I could only smile to think of the film My Little Chickadee (1948), with Mae West as the seductive bar singer Flower Belle Lee, and W.C. Fields playing flimflam man Cuthbert J. Twillie. (see related art work)

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