Wednesday, October 25, 2006
by Mike Frisch
In researching an article about a Massachusetts discipline case, I came across a report of the Massachusetts Bar Association evaluating the state bar regulation system. It is a object lesson in the need to insulate discipline from the influence of the organized bar. The Task Force pays lip service to the public interest and then launches its attack on Bar Counsel, blaming the prosecutor as the sole source of all delays in the system (I haven't studied this issue but doubt the whole story is told here). The solution: statutes of limitations for bar discipline, extensive expansion of discovery rights for accused lawyers (what about the delay issue?), a higher burden of proof, expanded motions practice for accused lawyers, and limiting the use of prior misconduct to aggravate the sanction for the next violation.
The title of the report pays tribute to the work of George Orwell. It's called Protecting the Public: Reforming the Disciplinary Process. It would be refeshing to hear stories about the organized bar doing meaningful work to improve disciplinary operations. The ABA has been a leader in this area, but the state bars have too often strayed from the path of independence from the bar recommended by the ABA Model Rules for Lawyer Disciplinary Enforcement.