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January 2009

2008: The Year in Ethics and Bar Discipline

Constance V. Vecchione, Bar Counsel

This column takes a second look at significant developments in ethics and bar discipline in Massachusetts over the last twelve months.

Disciplinary Decisions

The full bench of the Supreme Judicial Court issued seven disciplinary decisions in 2008. Approximately 170 additional decisions or orders were entered by either the single justices or the Board of Bar Overseers. Several decisions by the Court and the Board were of significant interest to the bar, either factually or legally.

Curry and Crossen

Of the full-bench decisions, the two that perhaps generated the most interest were the companion cases of Matter of Kevin P. Curry, 450 Mass. 503 (2008) and Matter of Gary C. Crossen, 450 Mass. 533 (2008). Curry held that disbarment was the appropriate sanction for an attorney who, without any factual basis, persuaded dissatisfied litigants that a trial court judge had “fixed” their case and developed and participated in an elaborate subterfuge to obtain statements by the judge's law clerk intended to be used to discredit that judge in the ongoing high-stakes civil case. In Crossen, the Court held that disbarment was also warranted for another attorney’s participation in the same scheme by actions including taping of a sham interview of the judge’s law clerk; attempting to threaten the law clerk into making statements to discredit the judge; and falsely denying involvement in, or awareness of, surveillance of the law clerk that the attorney had participated in arranging.

These cases are particularly noteworthy for their rejection of the attorneys’ arguments that the deception of the law clerk was a permissible tactic akin to those used by government investigators or discrimination testers. The SJC in both cases also reaffirmed that expert testimony is not required in bar disciplinary proceedings to establish a rule violation or a standard of care.

Matter of the Discipline of an Attorney

In a case with everyday implications for personal injury lawyers and other members of the bar who work on a contingent fee basis, the Court in April issued a decision entitled Matter of the Discipline of an Attorney, 451 Mass. 131 (2008). There, among other issues, the Court found that lawyers should specifically explain to clients the meaning of any terms in a contingent fee agreement that differ from the model agreement found in Mass. R. Prof. C. 1.5 and obtain the clients’ written consent to those terms. The Court then referred the issues raised by the decision concerning Rule 1.5 to its Standing Advisory Committee on the Rules of Professional Conduct.

This case is another in a recent series of decisions by the SJC on contingent and other fee issues, including another decision from 2008, Liss v. Studeny, 450 Mass. 473 (2008) (denying fees in quantum meruit to an attorney who withdrew from a contingent fee case that ultimately produced no award), as well as the Court’s earlier decisions in Malonis v. Harrington, 442 Mass. 692 (2004) (finding that successor counsel in the case had assumed the obligation to pay discharged prior counsel from successor counsel’s contingent fee, but referring to the Standing Advisory Committee the larger issue as to who, as between lawyer and client, typically should bear the cost) and Saggese v. Kelley, 445 Mass. 434 (2005) (adding the requirement that client consent be in writing for fee-sharing arrangements under Mass. R. Prof. C. 1.5(e) between attorneys not in the same firm). The Standing Advisory Committee has now submitted proposed amendments of Rule 1.5, addressing the issues raised in Matter of the Discipline of an Attorney and these civil cases.

Admonition no. 08-11

A decision by the Board of Bar Overseers sanctioning two partners in a large law firm with a (private) admonition, Admonition no. 08-11, was another disciplinary case prompting considerable discussion among members of the bar and in the local legal press. The lawyers represented a company in an employment dispute and initially were unaware that another lawyer in their firm had represented a client in an estate matter who had interests adverse to the client in the employment case. Once aware of the issue, the lawyers sought advice from in-house ethics counsel and, when counsel opined that no conflict of interest existed, continued with the representation. The Board held that the attorneys’ and their firm’s inadequate system for checking conflicts of interest resulted in an obvious conflict of interest and that the lawyers compounded their breach of loyalty by continuing with the representation, over the estate client’s objection, once aware of the problem.

In issuing its decision, the Board was explicit that conflicts not tolerated in a two-person law firm would not be tolerated in a multi-office, multi jurisdictional law practice and that all firms, regardless of size, are responsible for ensuring the adequacy of their conflict-checking systems.

Ethics Opinions

Opinion no. 08-01 of the Ethics Committee of the Massachusetts Bar Association suggests that a lawyer may not participate in a private business networking organization that requires members to cross-refer potential clients to one another. The Committee considered a lawyer’s commitment to provide business referrals to other members in exchange for the referral of potential clients to be a violation of the prohibition in Mass. R. Prof. C. 7.3(f) against “giv[ing] anything of value” to a person or organization to solicit professional employment. Although bar association ethics opinions are not binding on bar counsel, the Board, or the SJC, they provide helpful guidance on issues of professional responsibility not as yet addressed by the Board or the Court.

Rules Changes and Proposed Rules Changes

FDIC Insurance on IOLTA Accounts

The Federal Deposit Insurance Corporation (FDIC) announced on November 21, 2008, that effective immediately, client funds deposited in IOLTA accounts at participating financial institutions are eligible for unlimited deposit insurance coverage as part of the Temporary Liquidity Guarantee Program (TLGP). The additional coverage is in effect until December 31, 2009, unless extended. The full text of the final rule can be found at:

Mass. R. Prof. C. 1.14

Effective September 1, 2008, the Supreme Judicial Court amended Mass. R. Prof. C. 1.14 relating to the representation of a client with diminished capacity. The changes in the text of the rule largely follow the language in ABA Model Rule 1.14 as amended. There is thus a change in terminology from the prior Massachusetts version in that the rule now refers to diminished capacity of the client, rather than disability. Many of the other changes, in paragraph (b) of the rule and in the comments, are intended for clarity. Comments 9 and 10, relating to emergency legal assistance to persons with seriously diminished capacity, are new but are identical to the ABA comments on this issue and are not controversial.

The most significant change is new Comment 7, which is unique to Massachusetts. Comment 7 spells out an attorney’s several options when the expressed preferences of a client who is unable to make an adequately considered decision place the client at risk of substantial harm. The adoption of Comment 7 completes a process begun by the Supreme Judicial Court in its decision concerning Rule 1.14 in Care & Protection of Georgette, 439 Mass. 28 (2003), which involved a claim that the lawyer for an adolescent improperly ignored her directive to advocate for her return to an abusive father. In Georgette, the Court asked the Standing Advisory Committee to propose revisions to the rule to provide additional guidance to lawyers facing these concerns. After an intensive process including comments from bar groups and individual members of the bar, new Comment 7 is the result.

Proposed procedural amendments

Proposed amendments to Supreme Judicial Court Rule 4:01 and the Rules of the Board of Bar Overseers, together comprising the procedural rules on bar discipline, were published for comment in August 2008,, and should be finalized in 2009. These proposals had their genesis in an April 2007 request by the Supreme Judicial Court to the Office of Bar Counsel and the Board of Bar Overseers to submit proposals to implement certain recommendations made by a team from the American Bar Association. In November 2007, bar counsel and the Board submitted their proposed amendments, which were further reviewed and revised by the Court prior to publication for comment.

The recommended amendments include revisions giving bar counsel discretion not to open frivolous complaints and streamlining admonition procedure, modifications to motion practice before the Board, amendments expanding the permitted use of depositions and scope of discovery, and changes intended to reduce delay in processing petitions for reinstatement.

In conjunction with the proposed amendments to the procedural rules, bar counsel and the Board, with the approval of the Court, have adopted new internal time goals for completion of investigations, disciplinary hearings, and appeals by either party to the Board. The new standards, posted on the Office of Bar Counsel website, aim to work towards having the combined time from receipt of a new complaint through conclusion of proceedings at the Board be no longer than 27 months. The specified time periods are expressly not jurisdictional and do not confer any substantive rights on respondent lawyers.

The full text of the bar discipline decisions, summaries of important cases, and other news and events relating to the rules of professional conduct or the disciplinary process are found at the Office of Bar Counsel website, Stay up to date with changes and have a happy new year.

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