Ten Years Later – Massachusetts Board of Bar Overseers Study

We represent victims of legal malpractice in Massachusetts.  Ten years ago, an attorney at our office undertook an extensive study of three (3) years’ worth of Board Of Bar Overseers Admonitions.  The results were published on our website.  It was very insightful, interesting and has been an immensely helpful resource in our legal malpractice work on behalf of clients.

This is NOT a report on another dozen years’ worth of Admonitions, but a brief update on what we see in a one year, 2020, snapshot, and antidotally, what we are seeing in our legal malpractice intakes.

In 2020, for example, there seem to be 13 admonitions for attorneys failing to have a written fee agreement; 13 admonitions for failing to act diligently; 6 admonitions for improper communication with a third party or breaching confidentiality; 4 admonitions for advancing frivolous claims; some of the less cited transgressions were communications failures too, such as 2 admonitions for failure to return papers/files.

Again, we are not undertaking a detailed study like Attorney Ezra Reinstein did in 2010, however, we do note that both the 2020 admonitions and the daily legal malpractice intakes we receive have similar themes.  We will put a video on this page as a 2021 legal malpractice commentary.

The more severe penalties – suspension and disbarment – are only imposed after review by the Supreme Judicial Court, and are reserved for the most serious violations.  We’ll review trends in suspension and disbarment in a later article.  The most severe punishment that the BBO can mete out is the admonition.  As we’ll see, lawyers can rack up an admonition for a frighteningly wide range of behaviors – even sometimes when acting in good faith.

We’ve studied all 57 public BBO admonitions from 2008-2010, looking for trends.  Though our method is far from scientific, patterns have emerged.  One thing is clear:  if you’re admonished, you’re going to have to take some Continuing Legal Education.   Almost every single admonition was accompanied by an order to attend CLE.

And if you’re a litigator with twenty years in the field, a history of prior BBO discipline, and bad communication skills… be very careful.

BBO Admonitions Breakdown

Number of Admonitions by What They Did Wrong
17          Poor client communications
13          File-sitting/blown deadlines
11          IOLTA/Billing issues
10          Failure to investigate
9           Incompetence
8           Conflict of interest
3           Fraud/lying to client
2           Disclose client confidences
2           Practicing law while on admin. suspension
57          Total admonitions

The most common cause of grievances that lead to admonitions is the chronic problem that lawyers have communicating with their clients.  The solution is simple: always return a client’s phone call by the end of the day, unless there’s an unavoidable emergency – in which case, the next day.  But time and again, lawyers are reprimanded and admonished for ignoring their clients’ letters, emails, and phone calls – sometimes for months on end.  Some attorneys got in trouble because they failed to tell their clients the most basic, important things – that they should show up for a deposition, that they need to attend a hearing, that they’re about to be sanctioned.  If, for whatever reason, you’re avoiding talking to your client, things are not likely to get better with time.

Doing very little or nothing on a case for long periods of time – file-sitting – is the next most frequent cause of complaints.  It often goes hand-in-hand with complaints for poor client communications; if a lawyer isn’t doing anything about a case for months at a time, the lawyer might not feel very much like talking to that client.  One admonished lawyer let a case sit for five solid years.  Another did nothing on a case for two separate stretches of three years each.  But you can earn an admonition for much shorter do-nothing periods, especially if deadlines are passing.

IOLTA Violations

Problems with IOLTA accounts, billing, and fee agreements also commonly lead to admonitions.  This includes mixing client funds with personal funds; paying yourself fees from an IOLTA account without first giving your client an itemized billing, and without supplying the client with an IOLTA accounting; and working for contingent fees without reducing the agreement to writing.

Lawyers need to serve their clients with diligence.  This includes investigating the facts diligently.  Failing to do so is a good way to earn an admonition.  Some examples of failures to investigate:

• Foreclosing on a house without investigating whether the house’s owner – who has the same name as the debtor – is actually the same person as the debtor (he wasn’t).
• Filing bankruptcy for a client without finding out if the debts were all legitimate (they weren’t).
• Not talking to any of eleven witnesses that your own client identified for you.
• Not noticing or investigating the inconsistencies in your own client’s papers.
• Relying on a private investigator, without vetting the investigator’s skill and experience (which was non-existent) or checking the facts he reported (which were fabrications).

Incompetence covers a variety of ugliness.  One admonished lawyer misunderstood an immigration statute.  Another settled with one insurer, but forgot to settle with the second insurer.  A third filed a motion for summary judgment without submitting any supporting evidence.  A fourth neglected to disclose the names of the trial witnesses –
resulting in the witnesses being disallowed, a mistrial, and eventually an admonition.

One of the stranger cases of incompetence came from an attorney who changed address but did not notify the court.  As a result, for several months the court was sending mail – including notices of hearings and sanctions – to an empty house.

Conflicts of interest can be glaringly obvious:  one admonished attorney used a client’s confidential business information to go into business and compete directly with the client.  Another attorney took a financial interest (in this case, a lien) in the property over which the client was litigating.

Conflict of interest can be as seemingly benign as borrowing money from a client without the proper formalities (defined by Rule 1.8(a) of the Rules of Professional Conduct:  fair and reasonable terms; terms fully disclosed to client; client has opportunity to get advice from other counsel; and the client consents in writing).

Even lending money to an injured client, in good faith, to help the client pay bills – that too ended in admonition.

Naturally, lawyers can incur admonishment by lying or committing fraud. One lawyer lied to his client about the status of the case – he told the client that the reason for the trial continuance was that the judge had a heart attack.  In reality, the attorney had stipulated to the continuance without getting the client’s consent. Another lawyer reported an ex-wife’s and ex-employee’s unreported incomes to the IRS – which was not in itself admonition-worthy – but did so while posing as the ex-wife and ex-employee.

One lawyer earned an admonition through something as seemingly innocuous as signing his client’s name to the client’s affidavit with the client’s permission.

In a vacuum, disclosing client confidences seems so obviously wrong that it is almost unbelievable that it ever happens.  But a look at the examples shows that the real world is more nuanced.

In one case, an attorney was trying to defend himself against a client who was badmouthing the lawyer on the internet, and posted a rebuttal on the same website.  The problem was that he went too far:  he went on the attack, accusing his client of drug abuse and of using other “highly confidential information. . . not necessary to defend the respondent against claims of wrongdoing.”

In another case, the attorney was friendly with the client’s wife.  When the client was in divorce proceedings with the wife, the attorney submitted an affidavit on her friend’s behalf, about the client’s poor character.  In so doing, she breached her duty of confidentiality.

Even an inadvertent breach of confidentiality can lead to admonishment.  One lawyer gave his current clients a couple of old documents from a former client, as explanatory exemplars.  But he mistakenly forgot to redact the former client’s name.  Despite a mitigating factor (personal problems), the BBO admonished the lawyer.

Lawyers were admonished for the following as well:

• Not making it clear to the client’s mother that the lawyer doesn’t represent the client’s mother
• Failing to properly escrow a deed
• Advertising that you specialize in a practice area without having much experience in that area
• Being negligent in securing vacation coverage

Litigators, Beware

Litigation and Malpractice

Litigators – especially personal injury litigators and family/divorce litigators – are admonished more frequently than any other type of lawyer.  Why is that?  Are litigators more often solo practitioners who have fewer safeguards against making mistakes?  Do litigators deal with clients who are naturally contentious?  Do business lawyers tend to have longer-term relationships with clients, and so it’s more likely that the lawyer and client will work something out informally without involving the bar?  It’s a question beyond the scope of our discussion, but worthy of further study.

Older and Wiser?  Maybe Not

It may be surprising, but it’s not just wet-behind-the-ears “baby lawyers,” fresh out of law school, that are incurring admonitions.  In fact, most admonished attorneys had at least ten years of experience under their belts.  More than a third of the admonitions went to lawyers who were twenty years or more into their careers. And the real
figures may be much higher – the great majority of the remaining 28 admonitions simply don’t reveal the lawyer’s vintage.

Number of Admonitions by Seniority (years in practice)
6           40+ years
6           30-39 years
9           20-29 years
8           10-19 years
29          Total with 10+ years
57          Total admonitions

What could be the reason behind this?  Surely experience helps attorneys understand how to perform competently and ethically.  Perhaps because younger attorneys tend to be associates in larger firms, guided by partners’ hands and far removed from running cases, they’re insulated from blame.  Perhaps after thirty years or more of practicing law, attorneys lose focus on details and strictures. The lesson that we can confidently learn from this is that the BBO does not turn a blind eye to the misbehavior of senior lawyers.

Mitigating and Aggravating Factors

Health problems, family problems, and family health problems are the surest mitigation factors.  Inexperience can be a mitigating factor, unless the disciplinary issue is overstating one’s experience.

As you might expect, having a history of disciplinary problems is a common aggravating factor, possibly bumping subsequent penalties up from reprimands to admonitions or worse.

Number of Admonitions by Mitigating/Aggravating Factors
9           Compensated client/waived fees
5           Prior discipline issues (aggravating)
4           Personal/family/health problems
3           No ultimate harm
2           Inexperienced
1           Very experienced (aggravating)
1           Violation was unrelated to the practice of law
57          Total admonitions: (some are not applicable)

All other things being equal, the BBO looks more favorably on lawyers who, after messing up, pay back any gains from the client relationship and compensate the client for any losses.

Conclusion:

A little paranoia might not be bad.  After all, lawyers are licensed to deal with very serious matters and are expected to act accordingly.  People’s livelihoods, freedom, and fortunes are at stake – which does not lend itself to the trial-and-error method of learning.  Instead, we must learn by studying the rules, practicing law with diligence, honesty, and care, and contemplating the mistakes that other lawyers have made.

– Ezra Reinstein