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Commonwealth of Massachusetts

OBC/BBO News Archive

March 13, 2014

Index

OBC/BBO News

Recent Bar Overseer Articles

  • All Bar Overseer Articles can be found in the "Articles" section of our website.

Rules Changes

Ethics-Related Decisions

Recent Disciplinary Decisions

All bar discipline decisions of the Board of Bar Overseers and the Supreme Judicial Court can be found at Disciplinary Decisions of the Supreme Court.

[Current OBC/BBO Highlights]


OBC/BBO News


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Recent Rules Changes

  • Supreme Judicial Court Adds New S.J.C. Rule 3:16 Requiring Course for New Admittees
  • November 20, 2012

    The Supreme Judicial Court has approved a new Rule 3:16 of the Rules of the Supreme Judicial Court. The new rule requires all lawyers newly admitted to practice in Massachusetts to take a one-day Practicing With Professionalism Course within eighteen months after admission. Rule 3:16 is prospective and goes into effect on September 1, 2013.

  • Supreme Judicial Court Amends Mass. R. Prof. C. 1.5(b) and 6.5
  • October 24, 2012

    On October 24, 2012, the Supreme Judicial Court issued an order amending Mass. R. Prof. C. 1.5(b) to require in paragraph (b)(1) that, in most circumstances, the scope of the representation and basis or rate of the fee and expenses be communicated to the client in writing. The amendment is a major change from the prior version of Rule 1.5, which required (and will still require) that contingent fee agreements be written but only that other types of fee arrangements “preferably” be communicated in writing. The effective date of the amendment is January 1, 2013.

    New comment 2 to the rule amplifies on what is required, making it clear that “a simple memorandum or copy of the lawyer’s customary fee schedule is sufficient if the scope of the representation and the basis or rate of the fee is set forth.” The comment further notes that the lawyer ordinarily should send the written fee statement to the client before any substantial services are rendered.

    There are, however, a few exceptions to the mandate of a writing. Section (b)(2) of the revised rule creates exemptions to the requirement of a written statement for a single-session legal consultation and for a situation in which the lawyer reasonably expects the total fee to the client will be under $500. This section additionally specifies that, where an indigent representation fee is imposed by a court, a writing is not required because no fee agreement has been entered into between a lawyer and a client.

    Finally, the same SJC order also amends Mass. R. Prof. C. 6.5, concerning non-profit and court-annexed limited legal services programs, by adding a new paragraph (a)(1) indicating that lawyers providing short-term limited legal services under the auspices of such programs are not subject to Rule 1.5(b).

    These amendments to Rule 1.5 are more fully discussed in an article on this website.

  • The Supreme Judicial Court Approves a New Rule Concerning Out-of-State Depositions in Bar Disciplinary Proceedings
  • June 22, 2011

    On June 22, 2011, the Supreme Judicial Court approved a new rule, Section 4.5B of the Rules of the Board of Bar Overseers, “Taking Out-of-State Depositions Pursuant to Subpoena” in bar disciplinary proceedings. The rule provides that, when the Board approves an application by bar counsel or a respondent to take an out-of-state deposition, the Board will issue a request, addressed to the corresponding disciplinary authority in the jurisdiction where the deposition will occur, asking that a subpoena (or subpoena duces tecum) be issued for a specified date, place and time.

    If the corresponding disciplinary authority cannot issue or declines to issue a subpoena for the deposition, then the party requesting the deposition may apply to a single justice of the SJC for leave to take the deposition pursuant to the Massachusetts Letters Rogatory statute, G.L. c. 223A, §10. For the purposes of the statute, the disciplinary proceeding is considered to be an “action pending in this Commonwealth.”

    The new rule applies to depositions under both Section 4.9 (discovery depositions) and Section 4.10 (testimonial depositions of unavailable witnesses) of the Board rules, but does not affect the standard that “substantial need” must be shown obtain to obtain approval to take discovery depositions. The new rule can be found by clicking here.

  • The Supreme Judicial Court Revises the Rules Concerning Recusal of Members of the Board of Bar Overseers and Hearing Committee Members
  • June 22, 2011

    On June 22, 2011, the Supreme Judicial Court amended the rules concerning recusal of members of the Board of Bar Overseers, as well as of hearing officers including hearing committee (“HC”) or hearing panel (“HP”) members and special hearing officers (“SHOs”). The revisions, which are effective September 1, 2011, both consolidate and add to existing provisions on recusal and provide in substance the following:

    • Board members, HC members or SHOs shall disqualify themselves in any matter in which their impartiality might reasonably be questioned, where “impartiality” means absence of bias or prejudice for or against a party, and maintaining an open mind when considering issues involved in the matter.
    • Board members, HC members or SHOs are disqualified when they have personal knowledge of disputed evidentiary facts, when they have a financial interest in the outcome of the matter, or where they have previously expressed a view on the outcome.
    • The Board Chair is not disqualified from subsequent consideration or decision of a matter solely on the ground that he or she ruled on a motion or an appeal in the capacity of Chair.
    • A Board member who was the reviewing Board member in the decision to institute disciplinary proceedings in a matter under Section 2.8 of the Board Rules, or who was a SHO, HP, or HC member, is disqualified from later participating in the Board’s deliberations and its voting on the matter. However, a Board member who was a member of an Appeal Panel, is not disqualified from participating in subsequent deliberations and voting by the Board.

    The changes are implemented by striking Board Rule Section 3.54 in its entirety and the second sentence of Section 3.50(g). They are replaced by a new Subchapter G under Chapter 4 (“Miscellaneous Matters”). For a full copy of the revised rules, click here.

  • The Supreme Judicial Court Makes Lawyers’ Home Addresses Confidential
  • June 22, 2011

    On June 22, 2011, the Supreme Judicial Court amended Rule 4:02 by adding section (10). This provides that residential addresses of attorneys as disclosed on their registration statements shall be treated as confidential and used only by the Board of Bar Overseers and the Office of Bar Counsel to communicate with lawyers or otherwise in the course of the business of the Board or Bar Counsel. The residence addresses will not otherwise be disclosed to a third party except as ordered by a Single Justice of the Court.

    The practical effect for someone seeking to obtain a home address of a Massachusetts lawyer from the Board of Bar Overseers or the Office of the Bar Counsel is that one must get an order from the Court requiring such disclosure.

    This restriction does not apply to any lawyer who designates a home address as a place of business. The office address of any attorney in good standing in Massachusetts will continue to be available on the website of the Office of the Bar counsel using the following link: http://massbbo.org/bbolookup.php

    The full text of the new section can be found by clicking here.

  • The Supreme Judicial Court Substantially Revises Rule 1.5 Concerning Fees, Effective March 15, 2011
  • December 22, 2010

    On December 22, 2010, the Supreme Judicial Court released a major revision of Rule 1.5 of the Rules of Professional Conduct, which made substantial changes to both the text of the rule and the comments. The amendments take effect March 15, 2011 and address issues raised in the court’s decisions in Malonis v. Harrington, 442 Mass. 692 (2004), Saggese v. Kelley, 455 Mass. 434 (2005), Liss v. Studeny, 450 Mass. 473 (2008), and Matter of an Attorney, 451 Mass. 131 (2008). The provisions described below are some, but not all, of the changes to the rule itself. A more detailed article is posted in the "Articles on Ethics" section of this website.

    Section 1.5(a), concerning an “illegal or clearly excessive fee,” has now been expanded to prohibit “collecting an unreasonable amount for expenses.” Section 1.5(b) now provides that in addition to the basis or rate of the legal fees, the scope of the representation and the basis or rate of expenses shall be communicated to the client, before or within a reasonable time after the commencement of the representation. For a client whom a lawyer has “regularly represented,” Rule 1.5(b) now requires the lawyer to advise the client of any change in the basis or rate of the fee or expenses.

    Section 1.5(c) on contingent fees now contains additional language in section 1.5(c)(4) requiring a contingent fee agreement to include language telling the client, at the time the representation begins, if there is a possibility that a legal fee or other payment may be owed under other circumstances or on another fee basis.

    Rule 1.5(c) also contains two new sections, 1.5(c)(7) and 1.5(c)(8). If the lawyer intends to pursue a claim against the client for expenses or fees if the attorney-client relationship is terminated before the conclusion of the contingent fee case, then the contingent fee agreement has to state the basis on which fees and expenses will be claimed and the method by which they will be calculated. If a lawyer is the successor to counsel who was terminated before the conclusion of the case, then the fee agreement must state whether the client or successor counsel is liable to pay the fees and expenses of prior counsel.

    Rule 1.5(c) also now requires that at any time prior to the occurrence of the contingency, if the lawyer is terminated or if the client so requests, the lawyer must provide a written itemization of services rendered and expenses incurred within twenty days, unless the lawyer tells the client in writing that he does not intend to make a claim or fees or expenses if terminated.

    Rule 1.5(e) concerning division of fees between lawyers not in the same firm has also been modified. It now explicitly includes referral fees and says that the client must be notified of and consent in writing to the fee division at or before the time the client enters into the fee agreement. It retains the requirement that the total fee must be reasonable.

    Finally, Rule 1.5(f) now includes two alternative forms for contingent fee agreements. Form A is intended to be a version that may be used without any special explanations by the lawyer to the client. Form B contains options in paragraphs 3 and 7 that would require an explanation to the client and a specific designation by the client of his or her choice. In order to assure that the client is given a proper choice, those using Form B are required to show both alternatives in paragraph 3 and, where applicable, paragraph 7, so that the client will see and can question the alternative selected. Clause (f)(4) carries forward in a separate subparagraph an exception providing that no additional explanations are required to organizational clients. Both Form A and Form B incorporate certain of the key amendments to Rule 1.5 previously described.

  • Supreme Judicial Court Amends Rule 8.5 Of The Massachusetts Rules Of Professional Conduct
  • July 1, 2009

    Effective July 1, 2009, the Supreme Judicial Court has amended Rule 8.5 of the Massachusetts Rules of Professional Conduct concerning disciplinary authority and choice of law in disciplinary proceedings. With one significant exception, the new text largely follows the language of the corresponding ABA model rule as amended in 2002. The comments have also been amended, including some comments distinctive to Massachusetts.

    The prior version of the Massachusetts rule, Mass. R. Prof. C. 8.5(a) as effective January 1, 1998, provided only that a lawyer admitted to practice in the Commonwealth is subject to the disciplinary authority of this jurisdiction regardless of where the conduct occurred and that a lawyer admitted in more than one jurisdiction may be subject to the disciplinary authority of both jurisdictions for the same conduct. This section has now been expanded to add that a lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services here.

    Rule 8.5(b), the ABA’s choice of disciplinary law provision for situations in which more than one jurisdiction may be involved, was not adopted here in 1998. The amended Massachusetts rule for the first time now includes Rule 8.5(b) and offers guidance to practitioners as to which disciplinary rules apply in both litigation and transactional matters:

    • Mass. R. Prof. C. 8.5(b)(1) provides that, for conduct in connection with a matter pending before a governmental tribunal, the applicable rules are those of the jurisdiction in which the tribunal sits unless the rules of the tribunal provide otherwise.
    • Mass. R. Prof. C. 8.5(b)(2) provides that, for any other conduct, the disciplinary rules of the jurisdiction in which the lawyer’s principal office is located shall be applied, unless the predominant effect of the conduct is in a different jurisdiction, in which case the applicable rules are those of that jurisdiction. It is this section that differs significantly from the ABA model rule, with the Massachusetts rule defaulting to rules of the jurisdiction in which the lawyer’s principal office is located while the model rule defaults to the jurisdiction in which “the lawyer’s conduct occurred.” The section also includes a safe harbor; a lawyer is not be subject to discipline if the lawyer’s conduct follows the disciplinary rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

  • Supreme Judicial Court Approves Amendments To S.J.C. Rule 4:01 And Rules Of The Board Of Bar Overseers
  • April 21, 2009

    The Supreme Judicial Court has approved amendments to S.J.C. Rule 4:01 and the Rules of the Board of Bar Overseers, effective September 1, 2009. The amendments are available below and on the Court's website at http://www.mass.gov/courts/sjc.

    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. As part of a system-wide effort to improve the administration of justice, the Justices invited the ABA committee to assess the bar discipline system in the Commonwealth. The rule changes implement certain of the recommendations contained in the committee report. The Justices also acknowledge the helpful report of the Massachusetts Bar Association Task Force on Lawyer Discipline.

    Most of the significant changes are described in the Notice soliciting comments on the proposed amendments, found on the Board's website, http://www.mass.gov/obcbbo/comment.htm. Subsequent to publication of the proposed amendments, and following review of comments received, the rules were revised to require bar counsel to inform a complainant in writing of the reasons for not investigating a complaint or for closing a file. An additional change subsequent to publication requires the Board Chair or the Chair's designee to consider the convenience of the complainant, witnesses, the respondent and hearing committee in selecting a hearing location.

    In addition, since the publication of the Notice soliciting comments, the reinstatement questionnaire has been revised and reformatted. The new questionnaire is separated into two parts: Part I will become part of the record of the reinstatement proceeding; Part II contains financial and medical information and does not become part of the record in the proceeding unless all or part of it is admitted into evidence at the request of a party. The changes to the questionnaire required revisions in Board rules 3.62 and 3.63.

    As part of its assessment of the bar discipline system, the Court earlier adopted a pilot program changing the procedure for appealing to the full court from decisions by a single justice in a bar discipline case. All bar discipline cases entered in the Supreme Judicial Court for Suffolk County after April 1, 2009 are subject to the new procedure, which can also found on the Court's website and on the Board's website, http://www.mass.gov/obcbbo/highlit.htm#pilot.

    New Rule 4:01 (Redlined)
    (Effective September 1, 2009)

    New Rules of the Board of Bar Overseers
    (Effective September 1, 2009)

  • New Rules On Bar Discipline Appeals
  • March 31, 2009

    Effective April 1, 2009, the Supreme Judicial Court has issued an order initiating a pilot program modifying the procedure for appeals to the full bench from decisions of the single justice in bar discipline cases. 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. The memorandum must demonstrate that there has been an error of law or abuse of discretion by the single justice; that the decision is not supported by substantial evidence; that the sanction is markedly disparate from the sanctions imposed in similar cases; or that for other reasons the sanction will result in substantial injustice. 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, in which case the parties will file full briefs conformably with the Rules of Appellate Procedure and the case will be scheduled for oral argument.

  • The Supreme Judicial Court has Revised Rule 1.14
  • August 18, 2008

    By order dated July 28, 2008, the Supreme Judicial Court amended Rule 1.14 of the Massachusetts Rules of Professional Conduct concerning the representation of a client with diminished capacity. The new rule is effective September 1, 2008.

    The changes in the text of the rule largely follow the language in ABA Model Rule 1.14 as amended. The major change in terminology from the prior Massachusetts version is that the rule now refers to diminished capacity of the client, rather than a disability. Many of the other changes, in paragraph (b) of the rule and in the comments, are intended for clarity. In particular, Comment 7 spells out an attorney’s 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 and new Comments 9 and 10 relate to emergency legal assistance to persons with seriously diminished capacity.

    The adoption of the new rule completes a process begun by the Court in its decision concerning Rule 1.14 in Care & Protection of Georgette, 439 Mass. 28 (2003). Lawyers who represent clients with diminished capacity are urged to review both the new rule and the new comments for guidance on their responsibilities to the clients and the disclosure of confidential information.

  • Amendment to Mass. R. Prof. C. 1.13 (“organization as a client”)

    By order dated November 28, 2007 and effective January 1, 2008, the Court amended Mass. R. Prof. C. 1.13 (“organization as a client”) to be consistent with the current version of the ABA model rule. Many of the changes are stylistic or grammatical and do not reflect changes in substance. However, paragraph (c) of the revised rule now creates an additional exception to the confidentiality requirements of Rule 1.6. It now permits a lawyer for an organization to reveal information relating to a violation of law if the lawyer believes that the violation is reasonably certain to result in a substantial injury to the organization. Paragraph (f) clarifies the scienter requirement when a lawyer for an organization is obligated to explain the client’s identity to constituents of the organization (such as employees). It changes the language of the rule from “when it is apparent” the interests of the constituent and the organization are adverse to “when the lawyer knows or reasonably should know” this is so. In addition, the revised comment [9] is designed to reflect more accurately the law regarding the identity of a government client.

  • Supreme Judicial Court Requires Registration Of In-House Counsel

    By order dated February 4, 2008, the Supreme Judicial Court amended S.J.C. Rule 4:02 to require annual registration with the Board of Bar Overseers by lawyers who are resident and employed as in-house counsel in Massachusetts but not admitted here. The effective date of the amendment is June 1, 2008.

    The amendment applies to any such attorneys admitted in another United States jurisdiction, who provide on behalf of a single organization (including a governmental entity) or its organizational affiliates any legal services that constitute the practice of law. The attorney must undertake to limit legal practice in Massachusetts to employment as in-house counsel.

    The change is consistent with the 2006 amendments to Rule 5.5 of the Massachusetts Rules of Professional Conduct, subparagraph (d)(1), which now permits a lawyer admitted in another jurisdiction to provide legal services in Massachusetts in-house to an employer, as long as the services do not require pro hac vice admission in a forum.

    The amendments to Rule 4:02 will require such in-house counsel to file the annual registration statements and pay annual registration fees. The annual registration statements must identify and be signed by an authorized representative of the organizational employer. The statements must also disclose whether the lawyer is in good standing in each jurisdiction where the lawyer is admitted and, if not in good standing in any such jurisdiction, explain the circumstances. Any attorney registered under this section who changes or terminates his or her employment shall be required to file a supplemental statement of change in information regardless of whether he or she wishes to continue to engage in the practice of law in the Commonwealth as in-house counsel for another organization. Click here for a full copy of the rule. Comparable rules requiring registration of in-house counsel have been adopted in at least 21 other jurisdictions.

  • Supreme Judicial Court Amends Registration Rule To Require Disclosure Of Malpractice Insurance

    The Supreme Judicial Court has issued an order amending S.J.C. Rule 4:02 to require that lawyers certify in their annual registration statements whether or not they are covered by professional liability insurance. The amended rule also requires lawyers to notify the Board in writing within 30 days if coverage lapses or terminates for any reason without substitute coverage. Failure to comply with these provisions will subject lawyers to administrative suspension, and filing false statements will subject lawyers to appropriate disciplinary action.

    The amendments take effect on September 1, 2006. The Board will prescribe the form of the certifications required by the rule and will determine the means by which the insurance information will be made available to the public. Click here for the Court’s order and the amendments to Rule 4:02.

  • S.J.C. Amends, Clarifies Rule 5.5 On Unauthorized Practice And Multijurisdictional Practice

    The Supreme Judicial Court has issued an order replacing Rule 5.5 of the Massachusetts Rules of Professional Conduct with a new Rule 5.5, Unauthorized Practice of Law; Multijurisdictional Practice of Law. The effective date of the new rule is January 1, 2007.

    Subparagraph (a) of the new Rule 5.5 restates the general prohibitions against engaging in or assisting another in the unauthorized practice of law. Subparagraph (b) is new and clarifies that a lawyer not admitted in Massachusetts may not represent that he or she is admitted to practice in Massachusetts; and may not, except as permitted, “establish an office or other systematic and continuous presence” here. As an example, comment [4] to the Rule states that “systematic and continuous presence” would be established “by placing a name on the office door or letterhead of another lawyer without qualification, even if the lawyer is not physically present here.”

    Subparagraphs (c) and (d) of the rule are also new and describe circumstances under which a lawyer admitted in another U.S. jurisdiction may practice in Massachusetts without becoming admitted to the bar. Subparagraph (c) lists four situations in which legal services may be provided on a “temporary” basis: services in association with a Massachusetts lawyer who actively participates; services related to a proceeding before a tribunal if the lawyer is or expects to be authorized to appear in such proceeding; services related to an alternative dispute resolution proceeding if the services “arise out of or are reasonably related to” the lawyer’s practice and do not require pro hac vice admission; and other services that “arise out of or are reasonably related to” the lawyer’s practice in any jurisdiction where he or she is admitted. The provisions concerning temporary practice are discussed and amplified in comments [5] through [14].

    Subparagraph (d) of the new rule permits a lawyer admitted in another jurisdiction to provide legal services in Massachusetts “in-house” to an employer, as long as the services do not require pro hac vice admission in a forum, and to provide services authorized by federal or other Massachusetts law. These provisions are discussed and amplified in comments [15] through [19]. Comment [17] provides that a lawyer from another jurisdiction who practices in Massachusetts as “in-house” counsel may be subject to local registration or other requirements including annual fees. The Court has not yet amended its rules to require such registration or to impose annual fees.

    The amendments to Rule 5.5 and its comments are consistent with amendments to Rule 5.5 of the Model Rules of Professional Conduct adopted by the ABA in August of 2002. The ABA acted on the recommendations of its Commission On Multijurisdictional Practice. For the report of the commission to the ABA recommending amendment of Rule 5.5, click here.

  • Supreme Judicial Court Approves Increases In Annual Attorney Registration Fees

    The Supreme Judicial Court has approved a request of the Board of Bar Overseers to increase the annual registration fees of Massachusetts attorneys, effective September 1, 2006. Click here for the Court’s press release, which includes the new fee schedule.

  • ABA Adopts Comprehensive Amendments To The Model Rules Of Professional Conduct

    The American Bar Association has adopted a number of amendments to the Model Rules of Professional Conduct since early 2002. Most of the amendments resulted from proposals of the Ethics 2000 Commission, which was formed in 1997 to update the model rules originally adopted in 1983. The ABA has also adopted amendments proposed by its Multijurisdictional Practice Commission and its Task Force on Corporate Responsibility. Click here for access to the model rules as amended and the various reports that led to the amendments.

    The Supreme Judicial Court, its Standing Advisory Committee on the Rules of Professional Conduct, Bar Counsel and the Board have been engaged in the process of reviewing the various amendments for consideration of amendments to the Massachusetts Rules of Professional Conduct, which are based on the ABA’s model rules. As the Court seeks comments to or adopts amendments resulting from this process, they will be included on this website.


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Ethics-Related Decisions

  • Full Court Reverses Board of Bar Examiners' Decision to Deny Out-Of-State Lawyer's Petition for Admission on Motion
  • Under S.J.C. Rule 3:01, § 6.1, a lawyer admitted to the bar of another state for at least five years may apply for admission in Massachusetts upon motion. One of the requirements is that the applicant must have engaged in the active practice (or teaching) of law for five of the seven years preceding the request. In Matter of Schomer, 465 Mass. 55 (2013), the Supreme Judicial Court considered the application of a New Jersey lawyer who had practiced for close to three of the five years preceding his application in New York, although he was not then a member of the New York bar.

    The lawyer’s application was initially reviewed by the Board of Bar Examiners. The board determined that the lawyer did not qualify for admission on motion because he had not been engaged in the active practice of law for five years in a jurisdiction in which he was admitted to practice. The facts disclosed that for over two years of the five-year period in issue, from September of 2006 through November of 2008, the lawyer had been employed as a “contract attorney” by a large New York firm. Although he did not appear in any New York court for a client or hold himself out as a New York lawyer, the lawyer advised clients of the firm on litigation and regulatory matters and on establishing and enforcing their legal rights. For another six months of the five-year period, March through September, 2009, the lawyer was employed as an associate by another New York firm, where his work was limited to representing clients before New Jersey courts. The board determined that the lawyer’s practice in New York could not be counted toward the five-year active practice requirement because the lawyer was not then admitted to the New York bar, and therefore his practice in New York had been “illegal”.

    On appeal, the full bench reversed the board and concluded that the lawyer was eligible to be considered for admission on motion. To the extent that the board’s decision was based upon a policy that a lawyer’s practice must be physically located in the state of admission to be credited, the Court declined to adopt that interpretation of Rule 3:01, § 6.1. The Court did acknowledge that it is implicit in the requirements of the rule that the lawyer’s active practice “must have been authorized by the State where the applicant had been working as an attorney . . . .” 465 Mass. at 59. The Court also noted, however, that the lawyer had in fact been admitted to the New York bar in October of 2009, after having practiced in New York while not a member of the New York bar. The Court stated that “we are not prepared to conclude that Schomer was engaged in the ‘unauthorized’ practice of law where the New York bar has seen fit to admit him to practice, thereby determining that his work at . . . [the two firms] did not constitute a violation of . . . [New York’s unauthorized practice of law statute].” 465 Mass. at 61.

    As a result, the Court reversed the board’s decision and sent the matter back to the board to determine whether the lawyer should be admitted on motion. In a footnote, the Court also acknowledged that the case “highlights the legal and ethical complexities surrounding the multijurisdictional practice of law by lawyers who may not be licensed in every state where they need to work.” The Court concluded by noting that “[p]lainly there is a burgeoning need for clarification of the boundaries of multijurisdictional practice vis-à-vis the unauthorized practice of law.” Id. at fn 12.

    The following case summaries were compiled by Assistant Bar Counsel Jeffrey D. Woolf.

  • Supreme Court Confirms Immunity From Civil Liability For Witnesses In Bar Discipline Proceedings
  • Bar Counsel v. Peter S. Farber, 464 Mass. 784 (2013)

    April 9, 2013

    In Bar Counsel v. Peter S. Farber, 464 Mass. 784 (2013), the full bench of the Supreme Judicial Court confirmed that a witness in a bar discipline proceeding has absolute immunity from civil liability for his testimony at the disciplinary hearing. Attorney Peter S. Farber filed a civil action against an individual in the Superior Court in October of 2011, asserting claims of defamation, "wrongful instigation of civil proceedings," and violation of G.L. c.93A. The lawsuit was based on allegedly false statements made in a complaint and follow-up communications that the individual had previously filed with bar counsel, and in testimony given in a public hearing before a hearing committee of the Board of Bar Overseers. The hearing resulted in Farber’s being sanctioned with a public reprimand for misconduct including the matter that was the subject of the complaint at issue in this decision.

    Bar counsel filed an action for declaratory judgment in the county court, seeking a determination that Supreme Judicial Court Rule 4:01, § 9 provided immunity from civil liability to complainants and witnesses in these circumstances. The parties each filed dispositive motions and the single justice reserved and reported the matter to the full bench. Before the full bench, Farber conceded that the rule gave the immunity for the act of filing a complaint but maintained that the rule did not cover testimony before a hearing committee at a public hearing. Based on the history of the rule, and its purpose of encouraging those knowing of or suspecting attorney misconduct to participate in the bar discipline system, the Court found otherwise. The Court agreed with bar counsel that the rule must be interpreted as providing absolute immunity in relation to actual communications or testimony provided in a bar discipline proceeding, but rendering immunity unavailable with respect to the information contained in those communications or testimony if publicly disclosed in a forum outside the bar discipline system.

  • SJC Opines on Lawyer Disqualification and Corrections to Deposition Transcripts, Warning of Disciplinary Sanctions for Misuse of Rule 30(e)
  • Smaland Beach Association, Inc. v. Genova, 461 Mass. 214 (2012)

    January 5, 2012

    In Smaland Beach Association, Inc. v. Genova, 461 Mass. 214 (2012), the Court addressed two topics that were the subject of previous decisions and also the Rules of Professional Conduct: disqualification of opposing counsel and corrections to deposition transcripts. In the underlying case, the trial judge had disqualified counsel for the plaintiffs and third-party defendants because the defendants had listed plaintiff’s counsel as a trial witness. The judge considered the lawyer to be a necessary witness because his clients had raised an “advice of counsel defense” and because he had assisted witnesses in submitting errata sheets to deposition transcripts that substantively changed their testimony. In reversing the disqualification order, the Court considered the scope of disqualification orders under Mass. R. Prof. C. 3.7(a) and clarified the proper use of errata sheets under Mass. R. Civ. P. 30(e).

    Plaintiff’s counsel had assisted both the plaintiffs and some non-party witnesses in preparing errata sheets that sometimes “wholly reversed their testimony * * *, struck existing testimony and replaced it with a different narrative, or added explanatory text to existing deposition testimony.” Sometimes changes were accompanied by in-depth explanations, but typically the explanation was “clarify testimony.” The Court, however, found the record insufficient to support the trial court’s conclusion that counsel was a necessary witness to the preparation of the errata sheets. No findings were made as to the likely content of counsel’s testimony or whether there were alternative sources of for the information that would be sought from counsel. Without findings on such issues, the Court concluded that there was an insufficient basis to uphold the order disqualifying counsel.

    The Court also noted that the motion judge did not conduct a sufficient inquiry as to the nature of the “advice of counsel” defense or what information would be sought from the attorney, or why the information could not be adduced through other means. Accordingly, the Court held that the record on the “advice of counsel defense” was “plainly insufficient to serve as a basis for disqualification.”

    As the matter was reversed and remanded, the Court’s opinion offered guidance on the issues of disqualification and deposition corrections. On disqualification, the Court noted that Rule 3.7(a) is narrower and less restrictive than the prior Disciplinary Rule 5-102(A) and applies only to counsel’s conduct “at trial” and not to the broader pretrial preparation of a case. The narrow limitation fulfills the goals of preventing potential jury confusion, avoiding the difficulty of cross-examining opposing counsel, and avoiding the appearance of impropriety where an attorney leaves counsel table for the witness chair. While pre-trial disqualification cannot be grounded in Rule 3.7(a) alone, the Court noted that “combining the roles of advocate and witness may create a conflict of interest” supporting disqualification under Mass. R. Prov. C. 1.7 and 1.9.

    Regarding errata sheets for depositions, the Court observed that Mass. R. Civ. P. 30(e) encompasses “[a]ny changes in form or substance” to the deposition testimony. Accordingly, the Court adopted the approach of the majority of federal courts under which any changes (both clarifying and contradicting prior testimony) can be made, but the original and changed answers, along with the reasons given for the changes, are part of the record and may be used at trial. However, counsel must explain to the deponent that any changes must represent their own good faith belief, and may not be made just to bolster the merits of a case. Also, each change must include a statement of reasons, as required by Rule 30(e), that are advanced in good faith and provide an adequate basis to assess their legitimacy (i.e., they cannot be conclusory). Moreover, if substantive changes would have reasonably triggered further inquiry at a deposition if made at the time, the deposition may be reopened to explore matters raised by the substantive changes and their origins. Finally, the Court warned that “if there is any indication that an attorney has exploited [Rule 30(e)] by arranging or facilitating the submission of errata sheets for the purpose of strategic gain in a case and not to correct testimony, his conduct may be grounds for sanctions.”

  • Supreme Judicial Court Finds No Liability in Tort for Bank that Failed to Provide the Board with Notices of Dishonored Checks on a Lawyer’s Client Account
  • Go-Best Assets Limited v. Citizens Bank of Massachusetts, 463 Mass. 50 (2012)

    July 30, 2012

    In the fourth reported decision in litigation between a victim of fraud and a now-disbarred attorney’s bank, the Supreme Judicial Court found no tort liability from the bank’s failure to report to the Board of Bar Overseers under Mass. R. Prof. C. 1.15(h) a number of dishonored checks on a client account in the attorney’s name. Go-Best Assets Limited v. Citizens Bank of Massachusetts, 463 Mass. 50 (2012).

    In July, 2000, the plaintiff, Go–Best Assets Limited (Go–Best), wired $5 million to an account entitled “Morris M. Goldings client account” (client account) at Citizens, based on representations made by Goldings, then a Massachusetts attorney, that he would invest the funds on Go-Best’s behalf. In fact, Goldings was operating a “Ponzi” scheme for which he later pled guilty to numerous counts of mail fraud, wire fraud and money laundering and was disbarred. Go–Best sued Citizens under various tort theories, including the claim that the bank should have notified the Board when four checks written on the client account were dishonored for insufficient funds in the months prior to Go-Best’s investment.

    The Court affirmed summary judgment for Citizens, reversing a contrary ruling by the Appeals Court in Go-Best Assets Limited v. Citizens Bank et als., 79 Mass. App. Ct. 473 (2011). Citizens had executed an agreement with the Board, in accordance with Rule 1.15(h)(1), to notify it of a check drawn on a trust account that is dishonored for insufficient funds. Goldings’s “client account” was not an IOLTA account and the Court agreed with the Appeals Court that there was a genuine issue of fact as to whether it was a trust account within the meaning of Rule 1.15. The Court also acknowledged that the history of dishonored checks and negative balances on Goldings’s client account was “information [that] demonstrates a significant risk that an attorney may be making improper personal use of client funds.” 463 Mass. at 55-56. The Court concluded, however, that Rule 1.15(h) does not create a private right of action for victims of misappropriation and does not create a duty of care in tort, in the absence of legislative intent to create a private right of action. Nor could Go-Best be considered a third-party beneficiary of the contract.

    Here, the bank had no actual knowledge of the attorney’s actual or intended misappropriation of Go-Best’s funds in the account. Accordingly, the bank had no duty to take steps to prevent misappropriation. Without such actual knowledge, the bank’s duty to notify the Board of dishonored checks from “trust accounts” arose only from its contractual duty, so it could not be liable to Go-Best for any negligence in failing to fulfill that duty.

    The Court referred to the Standing Advisory Committee on the Rules of Professional Conduct the question of whether an attorney opening up an individual non-IOLTA trust account should be required to deliver to the bank a form notifying the bank that the account is a “trust account.”

  • SJC Considers When a Suspended or Disbarred Lawyer May be Permitted to Serve as a Mediator
  • Matter of Bott, 462 Mass. 430 (2012)

    June 5, 2012

    In May of 2005, Mr. Bott submitted an affidavit of resignation as an attorney, which was accepted as a disciplinary sanction. In 2010, after completing a mediation training program, he filed a petition in the Supreme Judicial Court for Suffolk County, requesting permission to serve as a mediator. The single justice referred the matter to the full bench.

    The Court began by noting that, “as a general proposition, a person does not engage in the practice of law when acting as a mediator in a manner consistent with the Uniform Rules [on Dispute Resolution].” However, the Court also noted, “there may be circumstances where work that does not constitute the practice of law when engaged in by nonlawyers may qualify as legal work that a disbarred or suspended lawyer is precluded from performing.”

    After reviewing what constitutes the practice of law, the Court concluded that “an attorney who has resigned while the subject of disciplinary investigation, or who has been disbarred or suspended from the practice of law, may be prohibited, in some circumstances, from acting as a mediator.” The Court identified several considerations that are relevant in determining whether mediation (or other activities) “that do not constitute the practice of law when performed by nonlawyers may, in the context of bar discipline cases, nevertheless constitute legal work when performed by a lawyer: (1) whether the type of work is customarily performed by lawyers as part of their legal practice; (2) whether the work was performed by the lawyer prior to suspension, disbarment, or resignation for misconduct; (3) whether, following suspension, disbarment, or resignation for misconduct, the lawyer has performed or seeks leave to perform the work in the same office or community, or for other lawyers; and (4) whether the work as performed by the lawyer invokes the lawyer's professional judgment in applying legal principles to address the individual needs of clients.”

    In a footnote, the Court said it was appropriate to adopt a rule governing the circumstances and conditions when a suspended lawyer may serve as a mediator before being reinstated. It therefore referred the matter to the Court’s rules committee. Pending the adoption of such a rule, a suspended or disbarred lawyer, who seeks to work as a mediator, may petition the Court for leave to engage in such work.

    The Court then remanded the matter to the single justice to determine whether and under what circumstances the petitioner would be permitted to serve as a mediator.

  • The Supreme Judicial Court Addresses the “Unauthorized Practice of Law” in the REBA Case
  • April 25, 2011

    In Real Estate Bar Association for Mass., Inc. v. National Real Estate Information Services [REBA v. NREIS], 459 Mass. 512 (2011), the Supreme Judicial Court was faced with two questions certified to it by the U.S. Court of Appeals concerning the unauthorized practice of law. REBA v. NREIS, 608 F.3d 110 (1st Cir. 2010). REBA sued NREIS for declaratory and injunctive relief, alleging that NREIS’s business of providing lenders with settlement services to close residential real estate mortgage transactions in Massachusetts involved the unauthorized practice of law. The Supreme Judicial Court first noted the difficulty in defining “the practice of law” and that many activities, that could constitute “the practice of law” are undertaken by non-lawyers. Therefore, the “unauthorized practice of law” must involve activities that fall “wholly within” the practice of law.

    The Court then noted that real estate conveyancing consisted of a series of “connected but discrete activities.” Because of deficiencies in the record, the Court could not decide whether or not NREIS had engaged in the unauthorized practice of law. However, it reviewed a number of closing-related activities, and concluded that the following do not constitute “the practice of law”: (a) ordering a title examination or receiving a title abstract; (b) ordering public reports (such as property appraisals, municipal lien certificates, flood reports and tax certificates); (c) preparing HUD-1 settlement statements and “mortgage-related forms”; (d) some closing-related activities, such as reviewing documents to make sure they were properly executed, or delivering them to the registry of deeds for recording (as they are primarily clerical in nature); (e) disbursing mortgage funds; and (f) issuing title insurance commitments and policies.

    By contrast, the Court concluded that preparing a deed does constitute the practice of law and must be performed by a lawyer. Likewise, by way of “advice” to the First Circuit, the Court stated that an attorney must be “involved” in the closing or other settlement of real property conveyances, which is more than simply being present at the closing. For example, determining whether the seller or borrower-mortgagor has marketable title is a determination that must be made by an attorney, which can be done before the closing. Likewise, an attorney is also required to effectuate a valid transfer of the interests being conveyed at a closing, including the transfer of title and the transfer of consideration, such as the sale or loan proceeds.

  • Supreme Judicial Court Quashes Grand Jury Summons For Lawyer To Testify About Client Communications That Included Threats Of Harm To Others
  • March 23, 2009

    In Matter of a Grand Jury Investigation, 453 Mass. 453 (2009), a lawyer received a number of late-night telephone messages from a client that included threats of harm to a judge who had recently ruled against the client in a case. The lawyer disclosed the threats to the judge, out of concern for her safety, as permitted by Rule 1.6(b)(1) of the Massachusetts Rules of Professional Conduct. The lawyer was then summoned to appear before a grand jury and testify concerning the threatening communications from the client. A motion to quash the summons was denied by the trial court because the lawyer “failed to show that the messages were left in an attempt to obtain legal services.”

    On a report from the trial court, the Supreme Judicial Court reversed the order denying the motion to quash the summons. As it had done in the earlier and similar case of Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109 (1997), the Court considered the question of whether the threatening telephone messages were covered by the attorney-client privilege. The Court answered that they were because the client’s threatening comments were made “in furtherance of the rendition of legal services.”

    The Court rejected the Commonwealth’s argument that the threats were not “germane” to legal services, noting that expressions of “frustration and dissatisfaction with the legal system and its participants . . . is a not uncommon incident of the attorney-client relationship, particularly in an adversarial context.” Further, “any test to ascertain the germaneness of an ostensibly threatening communication on a case-by-case basis would make the privilege's applicability uncertain, rendering the privilege ‘little better than no privilege’.” If a lawyer had to warn a client that disclosure might not be protected, it might discourage the client from disclosing relevant information and also may “disincline clients to share their intentions to engage in criminal behavior.” In turn, that would prevent the lawyer from trying to dissuade the client from engaging in such behavior and from determining “whether to make a limited disclosure to prevent the harm contemplated by the client.”

  • 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.

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