Lawyer and Judicial Discipline
All lawyers admitted to practice in Massachusetts are bound by the Canons of Ethics and Disciplinary Rules Regulating the Practice of Law adopted by the Massachusetts Supreme Judicial Court (SJC Rule 3:07).
Many journalists labor under the misconception that lawyers who are suspected of improper behavior are reported to, and disciplined by, the Massachusetts Bar Association. The MBA is a professional organization and membership is voluntary. The MBA has no disciplinary powers. Lawyer discipline falls under the auspices of the Board of Bar Overseers and the Office of the Bar Counsel.
The Board of Bar Overseers should not be confused with the Board of Bar Examiners. The latter is responsible for administering the bar exam. The BBO was established by the Supreme Judicial Court in 1974 for the purpose of regulating lawyer discipline. Membership consists of eight lawyers and four laypersons. The BBO maintains a register of all lawyers licensed to practice in Massachusetts. The BBO administers or recommends to the SJC appropriate disciplinary action against those who have been found guilty of misconduct. The BBO's Office of Bar Counsel investigates and prosecutes complaints before hearing committees. The bar counsel is aided by assistant bar counsel and by investigators. All BBO and bar counsel expenses are funded by the annual registration fees paid by all lawyers; no public monies are involved.
How complaints are handled
Anyone may file a request for investigation (commonly called a complaint) with the BBO's Office of Bar Counsel. A complaint must be in writing and it must be signed. If the complaint is found not to be a violation of the disciplinary rules warranting discipline, then it is dismissed after review by a BBO member. If the lawyer is found to have committed a relatively minor infraction, there may be an admonition. If it appears that there was serious misconduct, the matter is referred to a local hearing committee appointed by the BBO that usually consists of two lawyers and a layperson. At the completion of the hearing process, the hearing committee submits a report to the BBO along with its recommendation for discipline. The board may accept or modify the hearing committee's recommendation. If the board feels additional information is required, it may return the case to the hearing committee for further hearing. The board may conduct hearings of its own prior to making a final determination.
Types of discipline
The BBO may impose two types of discipline: admonition and reprimand. If the BBO determines that more severe discipline is required, the matter, together with the BBO's recommendations, will be sent to the SJC. Only the SJC may impose suspension for a specified time, indefinite suspension and disbarment. Sometimes, disciplinary action taken by the SJC may be imposed with terms of probation. Lawyers who have been disbarred or indefinitely suspended must wait five years before applying for reinstatement.
Access to BBO information
Effective July 1, 1993, the SJC made significant changes to its rule governing the procedures for attorney discipline. The diciplinary proceedings now become public 20 days after a lawyer is served with a petition charging misconduct. The BBO posts a scheduling of hearings at its offices. Because dates and times of hearings may change, it is recommended that reporters wishing to attend a hearing confirm the date and time. The BBO's files regarding matters where petitions were filed after July 1, 1993 are public documents.
The BBO will confirm if a particular lawyer is currently licensed and registered to practice law. It will also confirm if a lawyer has been the subject of public discipline. As noted above, this includes the actions of public reprimands, suspension for a specific period of time, indefinite suspension and disbarment. Massachusetts Lawyers Weekly newspaper regularly publishes information regarding specific BBO disciplinary actions. The BBO will not read to the reporter specific quotes from SJC disciplinary orders nor will it provide copies of the orders. This information is obtainable from the clerk of the SJC. SJC disciplinary orders do not necessarily contain details of the specific act or acts for which the lawyer has been disciplined.
If a lawyer has been convicted of a crime, the BBO will likely schedule a hearing to determine if disciplinary action is in order. The BBO will furnish reporters with the date, time and location of the hearing and the hearing will be open to the public.
All the rest of the activities of the BBO are confidential. The BBO will not inform the press if a lawyer has been informally admonished or received a private reprimand. It will not confirm if a particular lawyer is, or has been, the subject of complaints or investigations.
Contacting the BBO
The BBO and the office of the bar counsel are located at 99 High St. in Boston. The telephone number is (617) 728-8700. The Massachusetts Lawyers Diary and Manual and Massachusetts Continuing Legal Education's Massachusetts Legal Directory (see the Resources section of this handbook) include current lists of BBO members and staff.
Judicial Discipline -- MASSACHUSETTS COURTS
Discipline of Massachusetts state court judges falls under the jurisdiction of the Massachusetts Commission on Judicial Conduct, commonly (albeit incorrectly) known as the Judicial Conduct Commission. CJC operation is explained in the General Laws of Massachusetts, c. 211C.
Grounds for discipline
Rule 3:09 of the Massachusetts Supreme Judicial Court's Code of Judicial Conduct includes eight canons of judicial ethics. Violation of any of these canons is grounds for discipline. The canons are:
- A judge should uphold the integrity and independence of the judiciary.
- A judge should avoid impropriety and the appearance of impropriety in all his activities.
- A judge should perform the duties of his office impartially and diligently.
- A judge may engage in activities to improve the law, the legal system and the administration of justice.
- A judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties.
- A judge should regularly file reports of compensation received for quasi-judicial and extra-judicial activities.
- A judge should refrain from political activity.
- Compliance with the Code of Judicial Conduct (two regulations for retired and resigned judges).
The code includes detailed provisions for each canon.
In addition to the eight canons, the following are also grounds for discipline:
- conviction of a felony
- willful misconduct in office
- willful misconduct which, although not related to judicial duties, brings the judicial office into disrepute
- conduct prejudicial to the administration of justice or conduct unbecoming a judicial officer, whether conducted in office or outside of judicial duties, that brings the judicial office into disrepute
- any conduct that constitutes a violation of the codes of judicial conduct or professional responsibility
CJC membership
There are nine members of the CJC. Three are judges and are appointed to the CJC by the Supreme Judicial Court. These appointees may not be SJC judges and they must come from different departments of the trial court. Three members are lawyers and they are appointed by the chief administrative justice of the trial court. Finally, three members, who must not be lawyers or judges, are appointed by the governor. The members are reimbursed for expenses but they are not compensated for serving on the commission. Membership terms last six years. The commission appoints its own executive director, a salaried position open only to members of the bar.
The complaint process
Commission investigations are limited to complaints of conduct that occurred during the last year, unless the commission finds "good cause" to investigate earlier conduct, or unless a misconduct problem that occurred during the last year may be traced to a pattern of misconduct going back more than a year.
The CJC will investigate written and oral complaints. It also may initiate complaints on its own if it becomes aware of potential violations. A complaint is initially screened by commission staff who will recommend dismissal if it is unfounded or falls outside CJC jurisdiction. If the commissioners agree, the complaint is dismissed. The complainant and the judge receive notification of the dismissal and an explanation of why the complaint was dismissed.
If the CJC decides that an investigation into a complaint is warranted, the judge in question is notified. The commission is empowered to compel testimony from witnesses including the judge and it may compel production of documents, recordings and any other relevant evidence. The investigation is usually completed within 90 days. At the completion of the investigation, the CJC decides whether the complaint should be dismissed or if a detailed complaint or statement of allegations will be prepared.
At any point during the investigation, the complaint may be disposed of through informal adjustment. The adjustment, which is designed to prevent a repeat of the offending activity and requires agreement by the judge to its terms, may involve counseling, restrictions from hearing certain cases or sitting in certain courts, monitoring by the CJC or other conditions.
If, after the investigation, the CJC decides that there is sufficient cause to proceed, the person making the complaint is asked to file a sworn statement or the CJC executive director prepares a statement of allegations. The judge is provided with a copy of these documents and has 21 days to respond.
After the 21 day period, the CJC may dismiss the matter if it is determined that there has been no misconduct, an informal adjustment may be made, a private reprimand may be issued or formal misconduct charges may be issued.
Formal misconduct charges
Formal misconduct charges are first sent to the accused judge who has 10 days to respond. After reviewing the judge's response, if the CJC decides to continue with formal proceedings, the charges and the judge's response are filed with the Supreme Judicial Court. At this point, both documents become public.
A hearing is scheduled and this hearing is open to the public. At the hearing, the CJC has the burden of proving the charges. Within 30 days after the hearing, the hearing officer submits a report to the CJC containing findings and recommendations.
The commission now makes a recommendation for discipline. The CJC recommendation may differ from that recommended in the hearing officer's report. The judge and the complainant have the right to be heard before the CJC makes its final decision. The hearing is open to the public, the deliberations that follow are closed. The CJC will make a final decision within 90 days. A majority vote by commission members is necessary for a recommendation of disciplinary action to be forwarded to the SJC.
The CJC's authority to dispose of complaints is limited to dismissal, private reprimand and informal adjustment. While it may recommend sanctions to the SJC, only the SJC may impose disciplinary sanctions. Some options open to the SJC include removal, retirement, limiting or placing conditions of performance of judicial duties, public or private reprimand or censure, imposition of fines, and assessment of costs and expenses.
Should charges be brought against an SJC judge, the chief justice of the Appeals Court and the six most senior Appeals Court Justices serve in the SJC's palce.
Access to CJC information
By law and regulation, CJC proceedings are confidential until there has been a determination of sufficient cause and charges have been filed with the SJC. The judge may, however, waive his right to confidentiality prior to the sufficient cause determination. If the investigation becomes public through judge's waiver of confidentiality or through some other means, the commission may release statements that confirm the existence of the investigation, to clarify procedural aspects of the disciplinary process, to explain the judge's rights or to state that the judge denies the allegations.
If the investigation was initiated as a result of "notoriety" or because of conduct that is a matter of public record and the inquiry is terminated because of insufficient cause to proceed, information regarding the insufficiency of cause may be released.
There are statutory provisions that permit various agencies and courts that are screening judges for judicial appointments to obtain information from the CJC.
Contacting the CJC
The CJC is located in Suite 102 at 14 Beacon Street, Boston, Massachusetts 02108. The telephone number is (617) 725-8050.
JUDICIAL DISCIPLINE -- Federal Courts
Prior to 1980, no statutory mechanism existed for filing complaints against federal judges. In 1980, Congress passed the Judicial Councils Reform and Judicial Conduct and Disability Act, creating a mechanism and process within the judicial branch for filing complaints against federal judges. The act placed in each regional circuit judicial council the responsibility for considering and responding to formal complaints. The act also provided for appeal to the U.S. Judicial Conference, the principal policy making body of the United States courts.
The complaint process
A complaint against a federal judge begins when a person files a complaint on a special form with the clerk of the federal court of appeals. The chief justice of the appeals court reviews all complaints. The chief justice may dismiss the complaint if it is not in conformity with the governing statute, if it directly relates to the merits of a decision or procedural ruling or if it is frivolous. The chief justice also may "conclude" the complaint if he finds that corrective action has already been taken.
If the complaint is not dismissed or concluded, the chief justice creates a special committee of circuit and district judges to join him in investigating the facts and allegations of the complaint. This committee produces a report which is forwarded to the judicial council. The council may then choose to conduct further investigation, if it is felt to be necessary.
The judicial council is empowered to "take such action as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit." These actions might take the form of a request for voluntary retirement, private or public censure, temporary suspension of case assignments, referral to the judicial conference or other action.
If the chief justice dismisses or concludes a complaint, the person filing the complaint or the judge who is the subject of the complaint has the right to petition the judicial council for review. Any action of the council may be petitioned through the U.S. Judicial Conference, all the way up to the U.S. Congress.
For additional information
In June of 1990, the office of the circuit executive for the United States Courts for the 1st Circuit announced that it would issue yearly reports of activities related to the act. At that a time, a summary of the first eight years of activity was issued.
Copies of the summaries as well as copies of the Rules of the Judicial Council of the First Circuit Governing Complaints of Judicial Misconduct or Disability which describes in detail the disciplinary process, may be obtained from the circuit executive. The circuit executive's office is also the source for any other information on the discipline of federal judges.
Contact:
Office of the Circuit Executive
Judicial Council of the 1st Circuit
McCormack Post Office and Courthouse
Boston, MA 02109
(617) 223-9049