The following case summaries were compiled by Assistant Bar Counsel Jeffrey D. Woolf.
- The Supreme Judicial Court Adopts the Common Interest Doctrine and Formally Recognizes Joint Defense Agreements
In Liss v. Studeny, 450 Mass. 473 (2008), the Supreme Judicial Court affirmed the dismissal of a suit by an attorney against his former client, wherein the attorney sought recovery of his fees on a contingent fee case, despite the fact that client was ultimately unsuccessful. Attorney Liss represented Studeny in an employment termination suit. Their fee agreement provided that Liss was not to receive any fees “otherwise than from amounts collected for [Studeny] by [Liss].” After Studeny had advanced $6,500 toward expenses, Liss requested an additional $4,000 for expert and trial expenses. Studeny declined to pay the additional advance for expenses. Liss said he could not properly prepare the case without more funds and moved to withdraw, which was allowed. Studeny proceeded pro se. He defeated the employer’s summary judgment motion but lost at trial.
Liss then filed suit against Studeny, seeking $39,360 in fees for a breach of the contingent fee agreement (CFA) and in quantum meruit. Liss’s suit was dismissed on summary judgment. On appeal, the Court affirmed dismissal of the contract claims, noting the CFA did not require Studeny to advance additional funds except as jointly determined. Therefore, Liss’s claims of breach of contract and breach of the implied covenant of good faith and fair dealing both failed.
The Court also rejected Liss’s claim for quantum meruit. It found that Liss had conferred a benefit on Studeny in that his efforts allowed Studeny to take his case to trial. The Court, however, rejected Liss’s argument that the right to recover in quantum meruit accrued at the time of the client’s breach of the CFA and agreed with Studeny’s argument that the right to recover on a contingent fee case does not occur until the contingency is realized, i.e., a recovery in the underlying case. The Court noted that quantum meruit is based upon unjust enrichment and the defeat of a person’s reasonable expectations. Here, because the CFA explicitly said that Studeny would not be liable to pay compensation “except from amounts collected,” the reasonable expectation would be that no fee would be paid unless there was a recovery. Moreover, the Court noted that, since the CFA did not state that Studeny would owe an attorney’s fee even if the case was unsuccessful, requiring compensation “would run counter to Mass.R.Prof.C. 1.5(c)(4),” which requires a contingent fee contract to state “whether and to what extent the client is to be liable to pay compensation otherwise than from amounts collected for him or her by the lawyer.” Therefore, “as a general rule,” there can be no quantum meruit recovery in a contingent fee case “where the contingency has not occurred.” The Court also noted, as a practical matter, the difficulty in valuing an attorney’s fee, in the absence of a recovery for the client. The Court expressly declined to decide whether an attorney could ever collect on a CFA after being discharged by the client or after the attorney had withdrawn because of the client’s breach.
- The Supreme Judicial Court Declines To Review Decisions Of The Clients’ Security Board In Two Cases
The Supreme Judicial Court recently decided two cases, Indeck v. Clients’ Security Board, 450 Mass. 379 (2008), and Audoire v. Clients’ Security Board, 450 Mass. 388 (2008), concerning awards made by the Clients’ Security Board. In both cases, the Court held that decisions of the CSB are not subject to judicial review.
Indeck involved a claim of misappropriation by a former client of Morris Goldings (disbarred in 2001, see http://www.mass.gov/obcbbo/bd01-005.htm). The CSB awarded Indeck $150,000 of a claim for reimbursement of $569,000 (the amount of Indeck’s claim as recognized by the Bankruptcy Court in a related proceeding). After the CSB denied Indeck’s request for reconsideration, she filed suit, seeking certiorari review under G.L. c. 249, § 4. Under S.J.C. Rule 4:05, §1, all CSB payments are “a matter of grace, not right, and no client . . . or other person [has] any right or interest in the Fund.” Therefore, Indeck had no “justiciable right” to challenge the decision of the CSB and no right to certiorari review.
Audoire arose from misappropriation by Shirley Hoak (disbarred in 2001, see http://www.mass.gov/obcbbo/bd01-048.htm). A settlement trust was formed to settle claims against Hoak and to distribute the proceeds of her malpractice insurance. The trust initially paid the claimant $50,853.50. Audoire then filed a claim with the CSB, which awarded Audoire $152,560.50. Pursuant to Rule 4:05(4), the CSB award was expressly conditioned on the claimant’s execution of an assignment to the CSB of future distributions from the settlement trust, up to the amount of the CSB award. Audoire signed and returned the assignment to the CSB, and thereafter received payment from it. When the settlement trust decided to make an additional distribution to Audoire, the CSB claimed it pursuant to the assignment agreement. Audoire objected to the CSB’s claim, alleging that execution of the assignment agreement was “induced by threat of delayed distribution” of the CSB award and that it was secured “without the advice of counsel.” The Court concluded that the CSB’s decision to condition reimbursement on the execution of an assignment agreement was not subject to judicial review. It also held that the complaint, seeking a declaration that the assignment was invalid, failed to state a claim upon which relief could be granted and was properly dismissed.
- The Supreme Judicial Court Adopts the Common Interest Doctrine and Formally Recognizes Joint Defense Agreements
In Hanover Ins. Co. v. Rapo & Jensen Insurance Services, 449 Mass. 609 (2007), the Supreme Judicial Court, in a case of first impression, formally recognized that joint defense (or joint prosecution) agreements may create an exception to the waiver of attorney-client privilege under the common interest doctrine. The Court reversed a discovery order by the Superior Court and adopted Section 76(1) of the Restatement (Third) of the Law Governing Lawyers pertaining to joint defense agreements. The “common interest doctrine” extends the attorney-client privilege to privileged communications, shared in confidence, with another party’s counsel in furtherance of a common legal interest. After tracing the history of both the attorney-client privilege and the common interest doctrine, the Court noted that joint defense arrangements had in fact been used in criminal cases in Massachusetts and the federal court for many years. The Court stated there “is no reason to treat confidential client communications differently when shared with an attorney representing a client having a common interest where the purpose for sharing is to provide a free flow of information essential to providing the best available legal services to the client.” 449 Mass. at 616. The Court also held that the ignorance of two of the clients that their attorneys were sharing information did not violate Mass.R.Prof.C. 1.6(a), although securing a client’s consent before sharing such information was preferable. It noted that comment [7] to the rule permits a lawyer to disclose information “when appropriate in carrying out the representation,” and that when “attorneys share privileged client information in order to provide the best legal services to their respective clients in the matter at hand,” this constitutes the assertion of the joint defense privilege “under the common interest doctrine.”
The Court also rejected other arguments against the asserted privilege. It held that the common interest doctrine does not require a written joint defense agreement. The Court endorsed an expansive view of the “common legal interest,” saying the interests of the clients do not have to be identical but only “a sufficiently similar interest.” Finally, it held that the narrative portion of counsel’s legal bills might contain the attorney’s work product (mental impressions or legal theories) and therefore might be covered by the joint defense agreement. The case was remanded to permit the Superior Court to determine whether the defendants had entered into a valid joint defense agreement and whether the bills contained work product.
- The Supreme Judicial Court Holds That the Public Records law Does Not Preclude the Attorney-Client Privilege for Government Agencies and Employees
In Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007), the Supreme Judicial Court held that the public records law, G.L. c. 66, §10 and G.L. c. 4, §7, did not abrogate the attorney-client privilege for public officers and governmental employees, and that confidential communications for the purpose of legal advice or assistance “are protected under the normal rules for attorney-client privilege.” Id. at 450. Suffolk Construction, the general contractor for the John Adams Courthouse renovation, sued DCAM over payment of construction costs and made two public records requests. When DCAM withheld certain documents on the grounds of attorney-client privilege, Suffolk sued for declaratory relief under the public records law. The Superior Court reported the question of whether the public records law precludes the protection of the attorney-client privilege, and the Supreme Judicial Court took direct appellate review.
In answering the question in the negative, the Court held that the attorney-client privilege applies in the public sector. The Court distinguished General Elect. Co. v. Department of Environmental Protection, 429 Mass. 798 (1999), where it held there was no implied exemption in the public records law for information otherwise covered by the attorney work-product protection, in part because the public records law expressly provides for a more limited immunity for work product. It rejected the argument, based on legislative history, that the affirmative elimination of a proposed exemption for attorney-client privilege from the final version of the public records law supported the argument that no such privilege existed. The Court likewise rejected the argument that unsuccessful attempts to amend the public records law to include an explicit attorney-client privilege exemption meant that no such privilege existed.
The Court also noted that, in the absence of an attorney-client privilege for government officers and agencies, their attorneys would not be able to act competently (by providing advice on how to meet their obligations to the public), as required by Mass.R.Prof.C. 1.1, and to maintain the confidentiality of information, as required by Rule 1.6. Id. at 450. The Court also declined to interpret comment [6] to Rule 1.13 (Organization as a Client) as limiting the attorney-client privilege when the client is the government, stating instead that different laws and regulations may be adopted concerning client confidentiality.
- Supreme Judicial Court Rules That A Complainant Has No Standing To Challenge A Decision Not To Prosecute A Complaint Of Attorney Misconduct
In Matter of a Request for an Investigation of an Attorney, 449 Mass. 1013 (2007), the Supreme Judicial Court reaffirmed that the complainant in a bar discipline matter has no standing to challenge in court the decision not to prosecute a complaint alleging misconduct of an attorney and affirmed the dismissal of a petition filed in the county court.
The petitioner was a former public school teacher who was alleged to have engaged in certain improper conduct; the attorney in question represented the student. The petitioner had filed a grievance with the office of bar counsel claiming that the attorney gave the petitioner legal advice and made false statements of fact or law, which, the petitioner claimed, led him to make sworn admissions of misconduct. After an investigation, bar counsel closed the file without disciplinary action. The petitioner requested review of this decision by the Board, as was his right under S.J.C. Rule 4:01, §8 and Rule 2.7(1)(A) of the Rules of the Board of Bar Overseers. A reviewing board member decided that bar counsel had properly closed the file and advised the petitioner that the file would remain closed. The petitioner, dissatisfied with the Board’s decision, filed a petition in the county court. In affirming the dismissal of the petition, the full bench concluded that “[t]here is simply no such private right of action” to “challeng[e] bar counsel’s decision.”
- Supreme Judicial Court Rules that The Board Of Bar Overseers And The Office Of The Bar Counsel Are Exempt From The Public Records Law
In Kettenbach v. Board of Bar Overseers, 448 Mass. 1019 (2007), the Supreme Judicial Court held that the Board of Bar Overseers and the Office of the Bar Counsel are both exempt from the public records law. Kettenbach had made a request for records concerning a superior court judge who had resigned from the bench and assumed inactive status as an attorney. When his requests were not granted, he brought suit in the Supreme Judicial Court. A single justice granted a motion to dismiss and Kettenbach appealed.
Kettenbach acknowledged that the Board of Bar Overseers and the Office of the Bar Counsel are both part of the court system. The full bench decision noted that court records are not within the definition of “public records” under the statute and that regulations adopted by the supervisor of public records limit the application of the public records law solely to the executive branch of the commonwealth. Because the Court affirmed dismissal of Kettenbach’s case, it did not reach the question of whether applying the public records law to records of the Board of Bar Overseers and the Office of the Bar Counsel would violate separation of powers principles or the confidentiality provisions of S.J.C. Rule 4:01, § 20.
- Suspended Laywer Denied Right To Fees Earned Before Suspension On Client's Case Where Conduct Resulting In Suspension Damaged The Case
In Kourouvacilis v. American Federation of State, County and Municipal Employees, 65 Mass.App. 521, f.a.r den. 446 Mass. 1108 (2006), the Appeals Court grappled with the question of whether a lawyer forced to withdraw from a pending civil claim because his license to practice law was suspended for misconduct may recover fees for services rendered prior to the withdrawal.
Louis Kerlinsky represented the plaintiff, Diane Kourouvacilis, in this employment termination and unfair representation case until he was forced to withdraw by a three-year suspension of his law license in Matter of Kerlinsky, 428 Mass. 656 (1999). Kourouvacilis retained new counsel. Kerlinsky filed and served a notice of attorney’s lien under G.L. c 221, § 50. New counsel then settled the case, and Kerlinsky filed a motion to enforce his lien against the settlement proceeds. A superior court judge denied the lien based upon Massachusetts precedent because Kerlinsky’s withdrawal from the case was without “good cause”.
The Appeals Court affirmed the denial but on different grounds. The court noted that Kerlinsky had “good cause” to withdraw because his withdrawal was specifically required by the Supreme Judicial Court’s suspension order. The court then considered the question of first impression whether and under what circumstances a suspended lawyer is entitled to compensation for services prior to withdrawal, if withdrawal is required before the completion of the case.
The court acknowledged one line of authority from other jurisdictions applying a “per se” rule that withdrawal required by a suspension prior to the completion of the case bars any right to compensation. A second line of authority permits compensation unless the misconduct resulting in the suspension is related in some way to the client’s case.
The court suggested that the second line of cases is more reasoned, since the “per se” rule could result in the unjust enrichment of the client. Here, Kerlinsky was suspended for misconduct in representing Kourouvacilis in another case, a personal injury case resulting from a car fire. Although the two cases were unrelated, false statements made by Kerlinsky in the fire case about his client’s employment and lost wages had a negative impact on Kourouvacilis’s wrongful termination claim in the second case. The court concluded that Kerlinsky was not entitled to compensation for services rendered to Kourouvacilis in the second case prior to his suspension because the suspension was based upon misconduct that was related to and impaired the value of the second case.
- Representation At Massachusetts Arbitration By New York Lawyer Does Not Invalidate Arbitration Award
In Superadio Limited Partnership v. Winstar Radio Productions, LLC, 446 Mass. 330 (2006), the Supreme Judicial Court considered two challenges by Superadio to a Massachusetts arbitration award in favor of the appellee, “Baby Love” (Winstar Radio’s predecessor). One challenge, that the arbitration panel had no authority to impose monetary sanctions for violations of a discovery order, raised no ethical issues. The court also considered whether the award should be vacated because the lawyer for the winning party was licensed to practice law in New York but not in Massachusetts.
Superadio argued that Baby Love’s New York lawyer engaged in the unauthorized practice of law by appearing in the Massachusetts arbitration, and that such conduct amounted to “undue means” requiring that the award be vacated. The court held that, even if the lawyer engaged in unauthorized practice, such conduct would not amount to “undue means”, such as “an underhanded, conniving, or unlawful manner similar to corruption or fraud . . .” (id. at 337), necessary to invalidate the award.
The court noted that the question of whether the New York lawyer engaged in the unauthorized practice of law by appearing in the Massachusetts arbitration is an issue of first impression that need not be decided. Rule 5.5(a) of the Massachusetts Rules of Professional Conduct provides that a lawyer shall not “practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction. . . .” The parallel provision in the ABA’s Model Rules specifically permits representation by out-of-state lawyers at arbitrations on certain conditions. Since the court’s Standing Advisory Committee on the Rules of Professional Conduct is considering adoption of the ABA version of the rule, the court concluded that “prudence dictates that this question await the committee’s report and our action thereon.” Id. at 336.
- Full Court Clarifies Lawyers' Obligations Concerning Obtaining Client Consent To A Fee-Sharing Arrangement Under Rule 1.5(e).
In Saggese v Kelley, 445 Mass. 434 (2005), the Supreme Judicial Court considered a dispute between lawyers over fees earned on a case that had been referred by the plaintiff to the defendants. The Court affirmed a judgment for the plaintiff based upon an oral fee-sharing agreement that a superior court judge found had been made between the parties.
The defendants argued that any fee-sharing agreement they had with the plaintiff was unenforceable because the plaintiff had not obtained the client's consent to a division of fees prior to the referral. DR 2-107(A)(1) (in effect at the time of the referral; now see Mass. R. Prof. C. 1.5(e)) prohibited a division of fees unless the client consented to the employment of the new lawyer after disclosure that a division of fees would be made. The defendants argued that the rule required that such consent be given prior to the referral. The Court declined to decide whether the plaintiff had violated the disciplinary rule. It concluded that any such violation would not affect the enforceability of the fee-sharing agreement between the lawyers because the rule is intended to protect clients from unreasonable fees and not to protect the lawyer to whom a referral is made. The Court also noted that the client had in fact consented to the division, although after the fees had been received by the defendants.
The Court also addressed additional comments to the interpretation of Rule 1.5(e), which is worded differently from DR 2-107(A)(1) and "does not speak to when disclosure to the client must be made, who must make the disclosure, or when consent must be given." The Court acknowledged as a general proposition that changes to fee agreements made after the representation has begun pose special problems for the client, who might feel forced to accept the changes. The Court concluded that, for fee-sharing arrangements entered into after the date of its rescript in this case, Rule 1.5(e) will be construed as requiring the referring lawyer to disclose the fee-sharing arrangement to the client before the referral is made and to obtain the client's consent in writing. The lawyer to whom the referral is made will also be required to confirm compliance with the rule before taking the case. Failure to comply with the rule may subject both lawyers to discipline upon division of a fee.
- Full Court Considers Civil Dispute Between Discharged Counsel And Successor Counsel Over Fees Due Upon The Settlement Of A Personal Injury Case
In Malonis v. Harrington, 442 Mass. 692 (2004), the Supreme Judicial Court considered a dispute between the original counsel and successor counsel over payment of the original counsel's fees upon the settlement of a contingent fee case. Malonis, the original counsel, investigated and prepared the client's auto accident case, collected PIP benefits, filed the claim in superior court, engaged in discovery and conducted extensive but unsuccessful settlement negotiations. The defendant offered Malonis $30,000, which the client rejected, and was prepared to offer $57,500. The client discharged Malonis and retained Harrington, who also engaged in settlement negotiations and completed a settlement for $57,500 nine months later. Both lawyers handled the case on a contingent fee basis, and Harrington agreed to accept $17,500 as his fee. When he was discharged, Malonis had filed notice of a statutory lien with the client, the defendant and Harrington. As the case was settling, Malonis sent Harrington an itemized statement totaling $11, 355.80. Harrington rejected the amount as "ridiculous", refused to offer Malonis any amount and refused to agree to fee arbitration. Malonis filed a claim for his fees in superior court, and the court entered a judgment against Harrington for the full amount of Malonis's claim.
On appeal, the Full Court affirmed the judgment on the particular facts of the case The Court acknowledged that when a client terminates an attorney's services on a contingent fee case, the client has an obligation to compensate the attorney in quantum meruit for the fair value of the services. The basis of the obligation is equitable, to prevent the unjust enrichment of the client at the expense of the attorney. In this case, however, the Court noted that there was a "shared 'expectation'" (Id. at 696) of all parties that Harrington would pay Malonis's fees and expenses from his fee. As the case was being settled, Harrington assured the defendant's counsel that he would "take care of" (Id. at 697) Malonis. Without these assurances, it was doubtful whether the defendant would have issued settlement checks to Harrington. Both the client and Malonis also believed that Malonis's fees would be paid by Harrington. On these facts, the Court affirmed that Harrington was obligated to pay Malonis's fees in order to prevent the unjust enrichment of Harrington "when he, admittedly, was not the major force in obtaining the settlement." Id. at 698.
The Court also commented on the broader question of "who, as between the client and successor counsel, should pay a claim such as Malonis's when one lawyer is discharged and another retained." Id. at 693. The Court advised that the question should be answered in each case "by express agreement with the client" (Id. at 701) after the client has been fully advised of the options and the circumstances. For example, the discharged lawyer is obliged by Mass. R. Prof. C. 1.16(d) to take steps to protect the client's interests upon withdrawal, which should include advising the client of "his or her expectation of being compensated for work performed." Id. Any lawyer who takes over the case should also advise the client of prior counsel's expectation of being paid and should "make clear, by specific agreement, who will be responsible to pay" (Id.) prior counsel. "Absent such express discussion, it is likely (as occurred here) that the client will simply assume that both lawyers will be paid out of the single contingency fee, and will fail to appreciate the potential that fee claims above that amount may be made." Id. at 701-702. While the Court acknowledged the potential for conflicts of interest in advising clients when a contingent fee case changes hands and when the second lawyer negotiates a settlement, the Court cautioned lawyers to recognize the fiduciary nature of the duties owed to clients.
In concluding its discussion of the broader question, the Court invited its standing advisory committee on the rules of professional conduct to study the issue and "recommend to us whether rule 1.5 should be amended to identify responsibility in these circumstances with any other necessary or appropriate safeguards." Id. 702-703.
- S.J.C. Considers Disqualification Issue Where Plaintiff's Lawyer Joined Firm That Represents Defendant In Unrelated Matters
In Coke et als v. Equity Residential Properties Trust, 440 Mass. 511 (2003), the Court heard an interlocutory appeal from a superior court denial of a motion to disqualify counsel based upon a conflict of interest. The Court dismissed the appeal as moot, however, when the moving party terminated its attorney-client relationship with the firm that it claimed was in a conflict.
An attorney filed a lawsuit on behalf of a number of plaintiffs against Equity. After summary judgment entered for the plaintiffs and after Equity and the plaintiffs filed notices of appeal, the attorney became a member of a firm that represented Equity on unrelated matters. Equity demanded that the firm withdraw from representing the plaintiffs and filed a motion to disqualify the attorney and the firm from representing the plaintiffs. After the superior court denied the motion, Equity then terminated its relationship with the firm.
The Court noted that Rule 1.7 prohibits a lawyer from representing a client if the representation will be directly adverse to another client. Because Equity terminated its relationship with the firm, the direct conflict no longer existed, and the Court relied upon a number of cases from other jurisdictions in determining that the disqualification issue was therefore moot. The Court stressed that Equity made no claim that the firm was violating its duty to maintain Equity's confidences. Although the Court expressed no opinion as to the propriety of the attorney's or the firm's conduct, it concluded the decision with a quote from a prior case that "'[p]utting it as mildly as we can, we think it would be questionable conduct for an attorney to participate in any lawsuit against his own client without the knowledge and consent of all concerned.'"
In a concurring opinion, two justices agreed with the result but questioned the majority's discussion of the issue "because it implies that there are circumstances in which this kind of dual representation is permissible, and suggests that this court currently possesses the comprehensive understanding of the issue that is necessary to make such a ruling." The concurring justices suggested that the issues of dual representation and disqualification should be considered not on a case-by-case basis but in connection with a comprehensive review of the relevant ethical rules.
- S.J.C. Clarifies That Rule 4.2 Does Not Apply To Contact With Former Employees Of A Corporate Opponent
In Clark v. Beverly Health And Rehabilitation Services, Inc., et als., 440 Mass. 270 (2003) , the S.J.C. once again considered the applicability Rule 4.2, the "no contact" rule, to a corporation represented by counsel. In Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347 (2002), the Court limited the categories of corporate employees with whom the rule restricts contact. In Patriarca v. Center for Living & Working, Inc., 438 Mass. 132 (2002), the Court held that Rule 4.2 does not apply to former employees of a corporation who would not have been covered by the rule had they still been employees. In Clark, the Court held that Rule 4.2 does not apply to former employees at all.
Clark was a wrongful death action against a rehabilitation center allegedly resulting from a medication overdose. Plaintiff's counsel contacted and interviewed a nurse formerly employed by the defendant who was on duty the night of the death and "'directly involved' in the subject matter of the litigation." On the defendant's motion, the superior court then barred plaintiff's counsel from contacting any former employees of the defendant without permission from defense counsel or the court. On interlocutory review, the S.J.C. reversed the protective order.
The Court held that neither Rule 4.2 nor comment 4, which deals with organizational clients, bars contact with former employees. The Court noted that comment 4 bars contact "only" with certain categories of "agents or employees" of an organization and that a "commonsense" reading of those terms excludes former employees from the restrictions of Rule 4.2. The Court also noted that inclusion of former employees within the "no-contact" rule would be inconsistent with the purpose of the rule, which is to protect the attorney-client relationship.
The Clark decision promotes open and cost-effective access to information in the early stages of controversies, and the Court noted that "informal interviews are an exceptionally efficient means for the meaningful gathering of facts." The Court cautioned, however, that counsel contacting unrepresented persons must be careful to comply with other ethical rules, including Rule 4.1 (truthfulness to third parties), Rule 4.3 (dealing with unrepresented persons), and Rule 4.4 (respect for rights of third persons). Counsel must also be careful to avoid eliciting privileged or confidential information from an unrepresented person.
For a more thorough analysis of the rules governing contact with unrepresented persons, see N. Kaufman, "Can We Talk: Communicating with Unrepresented Persons", Massachusetts Lawyers Weekly, November 17, 2003.
- S.J.C. Clarifies State Of Knowledge Required Of Criminal Defense Counsel To Take Steps To Prevent Client Perjury
Under Rule 3.3(e), a criminal defense lawyer who comes to "know" during a trial that his or her client intends to testify falsely must try to dissuade the client from committing perjury. The rule contains detailed provisions of what the lawyer can and cannot do if the client insists on testifying. In Commonwealth v. Mitchell, 438 Mass. 535 (2003), the S.J.C. discussed at some length what state of knowledge on the lawyer's part is required to trigger the provisions of the rule.
At the defendant's trial for two murders, his lawyer approached the court, with the prosecutor, and advised the court that his client insisted on testifying falsely and could not be persuaded otherwise. With the court's guidance, the lawyer elicited the defendant's testimony by asking "what do you wish to tell these jurors?" The defendant then testified in narrative form, denied the murders and disputed much of the evidence against him. The lawyer argued the case to the jury without referring to his client's testimony. The jury found the defendant guilty of both murders.
In a motion for a new trial, the defendant argued that his lawyer did not have an adequate basis to invoke Rule 3.3. In an affidavit submitted to the motion judge, the lawyer attested that the defendant had first denied the murders to him, and then later admitted that he had killed the victims. The lawyer also cited the evidence presented by the Commonwealth in support of his belief that the defendant had committed the murders. The motion was denied. On appeal, the S.J.C. affirmed the conviction and the denial of the motion for a new trial.
The Court noted that Rule 3.3 involves a clash between the lawyer's ethical obligations to the client and the court and the client's constitutional right to testify in his own defense. After reviewing various standards adopted by other courts under Rule 3.3, the Court held that a lawyer must have "a firm basis in fact" for concluding that a client's testimony will be false before acting under Rule 3.3. This standard "requires more than mere suspicion or conjecture on the part of counsel, more than a belief and more information than inconsistencies in statements by the defendant or in evidence." The Court rejected the more stringent test of knowledge beyond a reasonable doubt as "'virtually impossible to satisfy'".
The Court further held that the lawyer had a sufficient basis to act under Rule 3.3. The Court relied primarily on the defendant's admission of guilt to the lawyer, as well as on the Commonwealth's evidence, which included inculpatory statements of the defendant to others and his incriminating conduct. On related issues, the Court ruled that the lawyer had no duty to conduct an independent investigation when confronted with possibly false testimony, that it was not improper to conduct the Rule 3.3 colloquy with the prosecutor, and that the court's failure to include the defendant in the colloquy was erroneous, although harmless.
