The Bar Counsel Seal Of Approval

A justice of the Massachusetts Supreme Judicial Court resolved a dispute between an attorney and Bar Counsel concerning whether an ethics course satisfied a condition of  the disciplinary sanction.

The attorney is a prosecutor who violated Rule 4.2 by interviewing a represented witness outside the presence of counsel.

The board has recommended that the respondent be suspended from the practice of law for one month and be required to attend a continuing legal education course (CLE) approved by the Office of Bar Counsel. The respondent has accepted the one-month suspension and has attended two courses, which she contends directly relate to the ethical issues that were the subject of the suspension.

Bar Counsel declined to approve either as fulfilling the requirement. 

The court described the courses

On June 14, 2018, the Cape & Islands District Attorney Michael O’Keefe hosted a course entitled  “Ethical Considerations Training.” The course was sponsored by the National Association of Attorneys General. There were three speakers at the course, Tigran Eldred, Professor of Law, New England School of Law; Brendan Ruane, Professional Development Consultant and Lead Instruction, National Attorneys General Training and Research Institute; and Judy Zeprun Kalman, General Counsel, Massachusetts Attorney General’s Office. None of the instructors was affiliated with the District Attorney’s Office.

The instructors made presentations totaling 4.25 ethics hours. The course provided the attendees with reference and resource materials and a Uniform Certificate of Attendance. Participants were able to ask questions…

On July 31, 2018, the respondent participated in an on-line webinar sponsored by Massachusetts Continuing Legal Education (MCLE) entitled “Criminal Law Ethical Landmines.” The program was chaired by the then chair of the Board of Bar Overseers and the assistant bar counsel prosecuting this matter was one of the speakers. There were also instructors from the Suffolk County District Attorney’s office, the Attorney General’s Office, and an attorney in private practice. The course qualified for 3.0 ethics hours and the respondent received a signed certificate of attendance.

Issue

 The only issue before me is whether the courses attended by the respondent satisfy the education requirement established by the board…

Bar Counsel expressed concern that neither program was sufficiently directed to the ethical issues presented in the disciplinary case to be approved by Bar Counsel for purposes of the sanction.

The court

I am persuaded that the program organized by the Cape and Island’s District Attorney’s office was independent of the control of the District Attorney. The speakers were all experts in their fields and did not work for the District Attorney. The District Attorney hosted the program on his own initiative for his entire office and not just for the respondent. The District Attorney was not required to provide this training and should be commended for such an initiative. It also appears, contrary to Bar Counsel’s conclusion, that the topics covered in the training directly addressed the ethical issues presented in the matter. I conclude that the program hosted by the Cape and Island’s District Attorney and sponsored by the National Association of Attorneys General fulfilled the education requirement established by the board and that Bar Counsel should not have withheld approval of this program.

I am also persuaded that the MCLE program that the respondent attended on-line satisfied the education requirement. Bar Counsel’s reasoning that because the course was on-line it was inadequate is contradicted by the fact that the program was advertised as: taught, in part, by Bar Counsel; available on-line; and as providing up to three CLE ethics credits. 

Oops

 At oral argument, Bar Counsel stated that the ease of taking the courses the respondent completed was not sufficient punishment. The one-month suspension was a punishment. The educational component of the sanction is corrective in nature and is not a punishment. Whether such a class is sufficiently inconvenient is not an appropriate consideration. Bar Counsel does not appear to appreciate the significant commuting difficulty for an attorney living on Martha’s Vineyard to attend, in person, a rarely offered course in Boston. I am also persuaded that the MCLE course sufficiently addressed the ethical issues of concern to the board. Additionally, the only alternative course proposed by Bar Counsel as adequate was one that she herself was teaching at Suffolk University Law School. 

Or the danger of a dinner party encounter with Alan Dershowitz. 

Sanction

I conclude that the one-month suspension was appropriate and that the courses attended by the respondent satisfy the CLE requirement imposed by the board. The respondent may petition for reinstatement upon filing an affidavit of compliance.

MV Times reported on the bar charges and the outcome. 

The District Attorney issued a statement disagreeing with the finding of misconduct. (Mike Frisch)