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2009: The Year in Ethics and Bar Discipline

by
Constance V. Vecchione, Bar Counsel
January 2010

With this column, the Office of Bar Counsel undertakes our annual year-end roundup of noteworthy developments in ethics and bar discipline.

Decisions

The full bench of the Supreme Judicial Court issued six disciplinary decisions in 2009. Approximately 170 additional decisions or orders were entered by either the single justices or the Board of Bar Overseers. Several non-disciplinary cases by the appellate courts also addressed ethics related issues. A few of the significant decisions by the Board and the courts are described below.

Disciplinary decisions

Reciprocal discipline

In Matter of Ngobeni, 453 Mass. 233 (2009), the Supreme Judicial Court found that a reciprocal sanction under Supreme Judicial Court Rule 4:01, § 16, may be imposed on an attorney who, with disciplinary charges pending in another jurisdiction, resigned from practice there without making admissions or having a finding made of misconduct. In so holding, the Court relied in part on a similar decision it had made the previous year, Anusavice v. Board of Registration in Dentistry, 451 Mass. 786, 797 (2008), indicating that the Massachusetts dentistry board could consider a dentist's agreement to a Rhode Island consent order restricting his practice in Rhode Island as "discipline" warranting reciprocal discipline in Commonwealth.

The Court in Ngobeni emphasized the policy concerns underlying the decision, stating that:

If an attorney like [Ngobeni] may permanently resign in another State in the face of serious allegations of misconduct -- here involving multiple clients -- but do so without admission of misconduct, and then practice in Massachusetts without restriction unless bar counsel undertakes the burdensome and expensive task of investigating and proving the other State's charges, it would "tend[] to undermine public confidence in the effectiveness of attorney disciplinary procedures and threaten[] harm to the administration of justice and to innocent clients.
Mortgage fraud discipline cases

Two bar discipline cases this year arose out of allegations of mortgage fraud. (Formal charges in several other cases raising similar issues are currently pending before the Board.) In Matter of Sohmer, 25 Mass. Att'y Disc. R. _____(SJC no. BD 2009-083), an attorney resigned as a disciplinary sanction (an eight-year minimum loss of license). He admitted that bar counsel could prove that, in connection with his “foreclosure rescue” business, he signed at least 25 HUD-1 settlement statements as borrower that substantially misrepresented the financial aspects of the transactions and that he made false statements to the bankruptcy court as to one of these transactions. In a companion case, Matter of Palmer, 25 Mass. Att'y Disc. R. ______(SJC No. BD 2009-051), the attorney who acted as settlement agent for the loans stipulated to a 21-month suspension for knowingly preparing and causing the execution of the false HUD-1 settlement statements.

Misrepresentations/mitigation

Three cases involved lawyers who made intentional misrepresentations to courts in matters arising out of the lawyers’ domestic situations. The two decisions by the full bench, Matter of Angwafo, 453 Mass. 28 (2009), and Matter of Balliro, 453 Mass. 75 (2009), addressed the mitigating effect of domestic abuse. In Angwafo, citing the “powerful” mitigating circumstance that the lawyer was the victim of abuse by the defendant, the Court imposed a one-month suspension for misrepresenting her finances and marital status in domestic proceedings against the defendant. In Balliro, the Court determined that, in light of her “dysfunctional psychological state, brought about by the domestic abuse,” a six month suspension was the appropriate sanction for an attorney who testified falsely at her former boyfriend’s criminal trial for assaulting her. But in a situation originating in an attorney-client relationship and in which mitigation was not found, the lawyer in Matter of Sousa, 25 Mass. Att'y Disc. R. __ (SJC no. BD 2008-029), received a two-year suspension for falsely denying under oath, in a probation violation hearing and criminal trial, that she had a romantic relationship with a former client who was accused of threatening and stalking her.

Ethics-related criminal or civil cases

Disclosure of client’s threats of harm.

In Matter of a Grand Jury Investigation, 453 Mass. 453 (2009), the SJC affirmed its holding in Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109 (1997), that a client’s communications to a lawyer threatening harm to another are privileged unless the crime-fraud exception applies. In Grand Jury Investigation, a lawyer had received telephone messages from a client that included threats of harm to a judge. The lawyer exercised the discretion afforded to him by Mass. R. Prof. C. 1.6(b)(1) to disclose the threats to the judge. The lawyer was then summoned to appear before a grand jury to testify concerning the client’s communications. Finding that the client’s communications were not made “in furtherance of the rendition of legal services,” the trial court denied the lawyer’s motion to quash the subpoena. On appeal by the attorney, the SJC reversed, determining that the client's messages were in furtherance of the rendition of legal services—and thus protected by attorney-client privilege—and that any contrary holding would “discourage lawyers from exercising their discretion to make such disclosures.... and thereby frustrate the beneficial public purpose underpinning the discretionary disclosure provision of rule 1.6.”

Conflict of Interest.

The plaintiff in R& D Muller, Ltd. v. Fontaine's Auction Gallery LLC & others, 74 Mass.App.Ct. 906 (2009), sought to “pierce the corporate veil” to impose personal liability on some of the defendants by claiming that they had failed to observe “corporate formalities.” The Appeals Court affirmed the trial court’s disqualification of the plaintiff’s counsel on the grounds of a conflict of interest arising from the law firm’s prior representation of some of the defendants and its assistance in incorporating one of the defendants, including advice on maintaining corporate records. The Appeals Court found that, in these circumstances, the trial court could conclude that the present case and the former matters on which the firm had represented the defendants were “substantially related” for purposes of Mass. R. Prof. C. 1.9.

Ethics Opinions

Three ethics opinions from the Massachusetts Bar Association showcased a range of problems raising conflict of interest or related issues. In Opinion 09 01, the Committee on Professional Ethics took the position that an attorney may not accept a second appointment as guardian ad litem if so doing would require her to approve the prior payment of her own bills, but that other arrangements for that limited purpose may be possible. Opinion 09-03 addressed one of the frequent conflicts that arise in immigration work; the committee found that an attorney representing both alien employee and employer in obtaining an employment authorization must apprise the employer when the authorization is revoked, even though the employee has instructed the lawyer not to do so and the employer probably would rather not know. In Opinion 09-04, the committee discussed the applicable rules and “delicate balancing” required when lawyers offer social gifts or hospitality to judges.

Rules Changes

Mass. R. Prof. C. 8.5

Effective July 1, 2009, the Supreme Judicial Court amended Rule 8.5 of the Massachusetts Rules of Professional Conduct concerning disciplinary authority and choice of law in disciplinary proceedings. The new text largely follows the language of the corresponding ABA model rule as amended in 2002. The one significant exception is Mass. R. Prof. C. 8.5(b)(2). That section provides that, except where the conduct at issue involves a matter pending before a governmental tribunal, the disciplinary rules to be applied are those of the jurisdiction in which the lawyer’s principal office is located unless the predominant effect of the conduct is in a different jurisdiction. The model rule, by contrast, defaults to the jurisdiction in which “the lawyer’s conduct occurred.” The comments to the rule have also been amended, including some comments distinctive to Massachusetts.

S. J. C. Rule 4:01 and the Rules of the Board of Bar Overseers.

The Supreme Judicial Court approved comprehensive amendments to Supreme Judicial Court Rule 4:01 and the Rules of the Board of Bar Overseers effective September 1, 2009. The amendments stem from the American Bar Association Report on the Lawyer Regulation System of Massachusetts issued by the ABA Standing Committee on Professional Discipline. The revisions include general administrative changes and changes to admonition procedure, deposition and discovery practice, contempt, and to reinstatement practice and the reinstatement questionnaire. The full text of the amendments can be found at http://www.mass.gov/obcbbo/archive.htm#amend.

Bar Discipline Appeals

The Supreme Judicial Court issued an order, effective April 1, 2009, initiating a pilot program modifying the procedure for appeals to the full bench from decisions of the single justice in bar discipline cases entered in the county court on or after April 1. The intention of the modified procedure is to expedite the resolution of bar discipline appeals, while protecting the rights of all litigants. Under the procedure set forth in the order, the appellant submits a memorandum of not more than 20 pages to the full court, along with a record appendix that includes certain required documents. If requested by the court, the appellee may file a responsive memorandum, also not to exceed 20 pages. Based on its review of the parties' memoranda, the court may affirm, modify, or reverse the order of the single justice without oral argument or, on a vote of any three justices, may direct the appeal to proceed in the regular course to the full bench.


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, www.mass.gov/obcbbo. Keep current and have a happy new year.



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