Host Lucy Rivera invites Attorney Jeffrey D. Woolf; who is an assistant general counsel at the board of Bar Overseers to discuss what to do when problems arise with an attorney. Attorney Woolf explains the mission of the Board of Bar Overseers; which is to protect the public and maintain professional conduct, as well as illustrating how the board deals with neglected client matters and highlights lawyers' consequences when reported for disobeying the system (suspension, disbarment).
WBCA Podcasts
Discovering The Law
(upbeat music) (dramatic orchestral music) (dramatic orchestral music) (dramatic orchestral music) (dramatic orchestral music) (dramatic orchestral music) (dramatic orchestral music) (dramatic orchestral music) (dramatic orchestral music) (dramatic orchestral music) (dramatic orchestral music) (dramatic orchestral music) - Welcome to Discovering the Law. My name is Attorney Lucy Rivera, and today we have a very special guest. We have attorney Jeffrey Wolf who is the Board of Art Overseers Assistant General Council, and today we are going to learn about what to do if you have a problem with your attorney. - Thank you for having me. - Welcome to the program, and we're grateful for your time, Attorney Wolf. Would you please just start and please tell us what is the system, what is the Board of Art Overseers, what is the purpose of the disciplinary system for attorneys? - Okay, so every profession in Massachusetts has some sort of licensing board, and the Board of Art Overseers is, among other things, the licensing board for lawyers. So there's a Board of Registration Medicine, and we're a nursing, and we are the board for the lawyers because we oversee the bar. The, often used by the acronym BBO, Board of Art Overseers. So the Board's mission is twofold. First is to protect the public, and second, to maintain the integrity of the profession. So that's who the Board of Art Overseers is, and what its goals are. - And what is the difference between the bar discipline system and the criminal justice system? - Okay, so the criminal justice system prosecutes people who have violated criminal laws, and the bar discipline system is more like internal affairs for police or whatever. It's an administrative system that's separate from the court system. So we're not in court prosecuting a lawyer, we prosecute them through an administrative hearing process, and it doesn't involve going after lawyers who commit crimes, and it doesn't involve suing lawyers civilly. It's like a third track. So just the way, and that's why use the example of internal affairs, if a police officer has violated criminal law, they'll be prosecuted criminally. If they've injured somebody, they will could be sued civilly, but internal affairs goes after their badge. So we are like internal affairs for lawyers. We're third track. - And the attorney will for the various participants in this bar or this lawyer discipline system. - Okay, so I work for the Board of Art Overseers. The Board of Art Overseers is a volunteer board, and that conducts the disciplinary hearings. The bar discipline cases are prosecuted by the Office of the Bar Council, one of the system bar council. So they prosecuted case before a hearing committee that's convened by the Board of Overseers. If the Board believes that a lawyer should be suspended or disbarred, they will notify the state supreme court, the state supreme judicial court, and that's the body that can suspend or disbar a lawyer. So those are the three components of the actual disciplinary process. Now the Office of the Bar Council actually has a separate part of it, which is the intake division, and the acronym is ACAP Attorney and Consumer Assistance Program, ACAP. So they do the intake for complaints about lawyers. Now if at the end of the day a lawyer gets a suspended disbarred and a client, and they've stolen client money, and they haven't refunded it, the client can go to the client's security board, CSB, and that acronym is pretty much the same around the country. And the CSB has the money to reimburse clients who have been victimized by their lawyers. A follow-up question about what are the responsibilities of ACAP or that intake, or the services that it offers to the public? Okay, so ACAP basically takes in all of the complaints. And the first thing they do is they evaluate it, is it something they can dispose of and help the client away. And this is really about 85% of the cases that the complaints that the bar council gets. So if somebody complains that they fired their lawyer and the lawyer hasn't turned their file over to lawyer number two, ACAP will call up lawyer number one and say, you know, you haven't turned the file over and get it and make it happen. If the lawyer has not called the client back or the client feels the lawyer has been neglecting their matter, they'll call up the lawyer and say, you haven't returned your client's phone calls and you didn't know what's going on. And that will prompt the lawyer usually to do something. If the lawyer has settled a client's personal injury case and the client hasn't gotten the money, they'll call up ACAP and say, basically, I haven't got my money. ACAP will call up the lawyer and say, you know, you haven't told your client what's going on, why haven't they gotten their money? Give them their money or explain to them what the hold-up is. So these kinds of things ACAP can dispose of fairly rapidly, 30, 60 days, I think, is their time frame. They get rid of about 85% of the calls they get fall into this category of straightforward matters that they can help the clients with. An attorney, Wolf, what can, what are the responsibilities of attorneys when it comes to communications or lack of communication or their responsibility to maintaining their client informed? This is a very good question because the bulk of the complaints that bar counsel gets in that ACAP handles is neglect of client matters and lack of communication. So the two of them go hand in hand and there's really four rules that apply to this. And I should explain that the American Bar Association promulgates model rules of professional conduct. And each state adopts these in some form or another. And they may change the wording and Massachusetts is one of the states that has changed the wording on some of these rules. But there's really four rules and I'll give you the numbers and explain what they are. So the first rule is 1.1 which has to do with competence. That means the lawyer has to have and exercise a certain degree of legal skill and knowledge and thoroughness and preparation to, necessary, to represent the client. The second rule is 1.2 which has to do with the scope of the representation. And that requires the lawyer to seek the lawful objectives of the client through reasonably available legal means. They can't break the law to do this. So for example, if a client has a civil litigation matter, the lawyer has to abide by the settlement decisions of the client. They want to settle the case. They don't want to settle the case. If it's a criminal case, they have to abide by the client's decision about what plea to accept and as a matter of due process in the constitution they also have to accept the criminal defendant client's decision on whether or not to have a jury trial. Obviously this means the lawyer has to talk to the client. What do you want? How much money do you want on your case? Is that a reasonable amount? Are you asking for too much or too little? And if it's a criminal case, what do you want to plead to? Are you expecting too little, too much? And D went of a jury trial or not. Now the lawyer can limit the scope of the representation. So let's take a criminal lawyer who says, "I only do trial work. I will try your case, but if you need an appeal, I don't do that." So the lawyer can limit the scope of the representation of the lawyer to have that conversation with the client and say, "Listen, I only do this and have this agreement with the client about what they will do and what they won't do, such as, I'll try the case, but I don't do appellate work." So that's the second rule. The third one is 1.3, which has to do with diligence. So the lawyer has to act with reasonable diligence and promptness and represent the client zealously within the bounds of the law. So they basically have to tell the client, "What's going on? What am I doing?" And that sort of moves to the fourth rule that I want to talk about, which is 1.4, which itself is about communication. And there's four parts to this. So they have to tell the lawyer, the lawyer has to tell the client about any decision that the client has to make about things. And do they want to do this or do that? What do they want to do about who they want to leave their money to in a state plan? What do they want to do about this personal injury case or this criminal case? And that means they have to consult with the client about what the client wants. And then the lawyer will discuss the means to get there about, for example, drafting a will or a trust, something like that. So they have to consult with the client about the means by which the lawyer can pursue the client's objective. So this distinction between the objectives of the client determines and the means which the lawyer advises the client about. They have to keep the client reasonably informed about what's going on. What's going on in your civil case? What's going on in the state plan that you asked in the draft? So that's the next part of the communication obligation. The next one is the client can ask for information about what's going on. And the lawyer has to promptly comply with reasonable requests for information. What's going on? And then the last one sort of goes back to the client's objectives. The lawyer has to explain in a matter that's reasonably necessary for the client to make informed decisions. So that gets the communication. What do you want to do? How do we get there? And that's the discussion. So those are the things about communication. However, what would be some of the sanctions for an attorney who doesn't keep their client reasonably informed? Okay. So there's various levels of sanctions in Massachusetts and every state's got their own way of defining these. And I'll start with the two lowest ones, which is really the answer to your question. So the lowest one in Massachusetts is called an admonition, or sometimes called a private admonition, which is private discipline. The misconduct of the lawyer gets written up what they did, what rules they violated. But the admonition doesn't identify the lawyer. It's more a matter of telling the legal community, "You can't do this." Then the next step up from that is a public reprimand. It's the same kind of thing. It gets written up. It says what the rules were violated. But it names the lawyer and who it is who's done something wrong. So those are the two that usually are involved in lack of communication and lack of diligence. Above that, in Massachusetts, the next sanction up is a term suspension. That could be anywhere from 30 days on up to eight years. In Massachusetts, we have two additional terms that we use. One is an indefinite suspension. That's the equivalent of a five-year suspension. Lawyers out for five years before they can seek to be reinstated. And then the most serious sanction in Massachusetts, and usually the same in other states, is disbarment. In Massachusetts, it's a term of art of disbarment is the equivalent of suspension for eight years. Massachusetts does not have permanent disbarment. Attorney Wolf, so in terms of disbarment, would you tell us what are some of the types of misconduct that attorneys can be accused of? So the most serious thing as far as the state Supreme Court of Massachusetts is concerned is stealing client money. And that will get the lawyer disbarred for the most part. They do have an exception, which is if the lawyer has made prompt voluntary restitution, the lawyer can get an indefinite suspension, which, as I said, is the equivalent of five years as opposed to eight years for disbarment. And the reason it's a policy matter on the part of the court, because they want to encourage the lawyer to make prompt voluntary complete restitution. So it'll be eight years of disbarment if they don't make complete restitution. Sometimes the court will agree to a lesser sanction of an indefinite suspension, five years, if they make complete involuntary restitution. So on that vein, what can someone do if they have a small or a big problem with their attorney? What can they do? The other thing is to go to ACAP, call up ACAP. And ACAP is very good at filtering out what are the more serious ones that require formal investigation by a power council, what are the less serious ones that they can resolve quickly for the benefit of the client. But the first thing to do is to contact the ACAP division. And like I said, if it's a matter of a lawyer not returning phone calls or not distributing the client settlement proceeds or not turning over the file to successor counsel, they can get this done right away. Something that's more serious, they will advise the client that it is more serious and that the client has to file a formal request for investigation. And they will help them with this. They will give them the form. We don't take anonymous complaints in Massachusetts. And they will encourage the client to provide as much documentation as possible to assist the office, the bar council in undertaking investigation. What happens after that is the office of the bar council and the more serious cases will notify the lawyer that this request for investigation has been submitted. And they will ask the lawyer to respond to that. And it goes from there after the lawyer responds to bar council's request for investigation. And we talked about this briefly. What are the consequences for an attorney who has stolen money from a client? They will get disbarred unless it is an indefinite suspension for prompt and complete volunteer restitution. And then we did discuss the ACAP that are some of the remedies for a client that if the attorney has stolen the money. Yes. But what if a client doesn't like their attorney and they would like to fire their attorney? Can that happen? Yes. So the client can always fire the lawyer for any reason or really no reason at all. What happens after that in terms of their client file is something else. But the short answer to your question is yes, you can always fire your lawyer. Whether it's a fixed fee or a contingency fee or a flat fee or if it's civil matter or a criminal matter. The one exception is that if it's in litigation, whether it's civil or criminal, the lawyer will have to get permission of the court to withdraw unless the client has successor counsel. But the client can't fire the lawyer. The process may be a little protracted if they don't have successor counsel. But if they do, then it's pretty straightforward. And does the client have to pay the attorney even though they fired the attorney? Good question. So I had to give you a lawyer answer, but it depends. And it depends on what kind of case it is and what work the lawyer has done. So the thing to bear in mind is what the client's file is and what the lawyer has done. A lawyer like any other person who's hired and then fired is entitled to get paid the reasonable value of the services they rendered. You know, they're no different from any other person you hire and fire. How much they get depends on the value of the services that they have provided. And some of the lawyers, if they've been discharged, they will say, okay, fine. It's good public relations to not charge the client. And some of them will say, well, I've done all this work and I want to get paid. And then it's a process of negotiating with the client about how much the lawyer is going to get paid. If they can't resolve between themselves, then the office of the bar council will recommend that they go to fee arbitration. And most of the bar associations, maybe all of them, have some form of fee arbitration that they use and some of these are fairly modest in cost. But that is the fastest way to resolve any dispute between the lawyer and the client about how much the client has to pay, the lawyer for whatever services they've rendered. But as I say, some lawyers, particularly contingency fee case, they're not looking to get paid. Very interesting. So can a client get their file back after their fire, their attorney? Yes, they can, but it's a little more complicated because some of it they get for free and some of it they may have to pay for. And that gets into the six parts of what is a client file. So the first part is anything you've given the lawyer. Your original documents or whatever you've given the lawyer. They have to give you back that. Second thing is any correspondence that's been generated. They have to give you copies of the correspondence. The third thing they have to give you is copy of any pleadings or any papers that have been filed with the court. And again, there may be a modest charge for photocopying. If it's electronic then there shouldn't be a charge because they can just e-mail it to you or give it to you on a disk or a flash drive. The next component is investigatory or discovery material. So it was a personal injury case that they've gotten any medical records. Have they taken any photographs? Have they gotten any investigative reports? Any experts? If it's in litigation, have they been any depositions? Have they prepared any exhibits for trial? And that the lawyer can charge basically a reasonable fee for what they have done that's involved out-of-pocket expenses to the lawyer. The fifth thing they have to give the client is any intrinsically valuable documents. And this usually overlaps with the first one which is anything you've given them. So if you've given them your will or some trust then they have to give you back your original documents that have intrinsic value. The last thing is what we call the lawyer's work product, investigative stuff that they have done, their own mental impressions, their research. And again, if it's a contingency fee case they have to give it to the client. If it's not, it's an hourly case then there's a discussion about the value of the services that the lawyer provided to get to that point. But at the end of the day they have to give the client the file. Now the hook for the client that comes back to bite the lawyer is that there's an exception which is if the client would be unduly prejudiced by not getting the stuff that the lawyer paid for, then the lawyer has to turn it over. Well, that's usually what happens. So often the lawyer has to turn over everything and wait to get reimbursed later. Interesting. I have a follow-up question on that. But however, we would like to learn if there are things that the board of borrowers here is just getting involved with. Or the office of bar council doesn't get involved with. Yes, so the office of the bar council often stays away from specifically two kinds of things. If there's a complaint about the lawyer and the cases in litigation, it's pending, it's an ongoing lawsuit, whether it's civil or criminal. If the lawyer, the case is ongoing, the office of the bar council will usually wait until the case is over because they want to see what the court may do. The court may resolve this issue. They may impose sanctions on the lawyer, whatever. So they don't get involved if the case is pending. The other thing they often avoid is a fee dispute because the cleanest way to resolve that is to send the parties to binding fee arbitration, or at least mediation where they can talk about it may not be binding, but it'll try to get it resolved. So they generally avoid those kinds of cases. They do take on some fee dispute cases. But generally, if it can be resolved in mediation arbitration, they will look to the clients and the lawyers to resolve that. I understand. In that vein, would the office of bar council ever have any discretion on this matters, or have prosecutorial discretion over this issue? Sure. The lawyers in the office of bar council, like criminal prosecutors, have what's called prosecutorial discretion. So they may choose to not prosecute a case, even -- well, so first of all, if on further investigation than what ACAP did, they find out that they don't think there's any misconduct, then they may choose not to prosecute it. Now, there's two kinds of cases that they may think there's misconduct on where they won't prosecute. One is, if it's minor and they think that the real problem is what the lawyer's been doing long and they can be redirected without harming the client, they may send the lawyer for diversion. So if the lawyer's not managing their office correctly, they'll send them to law office management diversion. Teach them how to run a tickler system, how to make sure they're not missing court of appearance and stuff like that. If the lawyer's not keeping their books right, they may send them to trust accounting diversion to make sure that they are properly educated about how to handle the client money and how to manage their account. So diversion is another thing that is used instead of actually formally disciplining someone. This is only for minor stuff. Otherwise, an admonition, they'll divert them. And then sometimes our counsel will simply close it with a warning. It's not that bad, but they'll shake their finger at the lawyer and say, "Don't do this again." And that's an early formal discipline, but it's a kind of case that can be closed. Wonderful. Attorney Wolf, we have one minute left. If you would like to maybe leave us with your takeaways, there is one more thing that we would like to know. What can Attorney do and if they ever received any correspondence from you, but we only have a minute. Okay. A little bit less. They have to respond to bar counsel's request for investigation. If they do not, they will get suspended from the practice of law. There's rules of professional conduct and the SJC has separate rules that basically says if you don't cooperate with bar counsel's investigation, that's the disciplinary offense, you will get suspended. And separately from that, you will get suspended anyway. So they have to -- bar counsel will petition the SJC so you're not cooperating, suspend them, and they will get suspended. Thank you, Attorney Wolf. We're grateful for your time today. Glad to help. We learned a lot today. Today, we've learned from attorney Jeffrey Wolf from the board of bar overseers, assistant general counsel, and we learned a lot about what problems you -- if you have a problem with your attorney, what you should do. And if you are an attorney, if you hear from this gentleman, you are in trouble. My name is Lucy Rivera, I'm an attorney, and this episode can be viewed at www.discoveringthelaw.com. Thank you very much. Thank you. [MUSIC]