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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:
OBC/BBO HIGHLIGHTS
November 19, 2009
Index
Recent Rules Changes
The following case summaries were compiled by Assistant Bar Counsel Jeffrey D. Woolf.
May 22, 2009
In Matter of Mitrano, 453 Mass. 1026 (2009), the respondent was admitted to practice in the District of Columbia, New Hampshire and Massachusetts. A hearing committee in the District of Columbia found that the respondent had violated the Rules of Professional Conduct by multiple acts of misconduct, including theft, dishonesty and commingling of funds. No order of temporary suspension issued in the District of Columbia. After the D.C. hearing committee issued its report but before the District of Columbia Court of Appeals acted on the hearing committee’s recommendations, the Supreme Court of New Hampshire issued a reciprocal order of temporary suspension. Based on the New Hampshire order, bar counsel sought and obtained a reciprocal order of temporary suspension in Massachusetts and the respondent appealed. See Matter of Mitrano, BD-2007-062 (single justice order of temporary suspension, April 14, 2008). . The District of Columbia Court of Appeals thereafter affirmed the findings of its hearing committee and ordered the respondent’s disbarment. Bar counsel then sought and obtained from the single justice a reciprocal order of disbarment (retroactive to the date of the temporary suspension), Matter of Mitrano, BD-2007-062, (single justice order of disbarment, Oct. 29, 2008), and the respondent appealed again.
The Supreme Judicial Court held that the order of disbarment was proper as the respondent had ample notice of the charges against him in the District of Columbia and the opportunity to defend himself. While deferring to the findings of the District of Columbia hearing committee, the Court reviewed them in sufficient detail to conclude that there was no “grave injustice” that would warrant rejecting a reciprocal order of disbarment. Moreover, the Court noted that the subsequent judgment of disbarment in the District of Columbia was conclusive evidence of the respondent’s misconduct. The respondent’s reinstatement in Massachusetts was conditioned upon his being reinstated in the District of Columbia. The Court also dismissed the respondent’s appeal from the order of temporary suspension as moot.
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.”
February 13, 2009
In Matter of Ngobeni, 453 Mass. 233 (2009), the Supreme Judicial Court held that reciprocal discipline may be imposed on a Massachusetts attorney under S.J.C. Rule 4:01, §16, based upon a resignation from the Connecticut bar while disciplinary charges were pending, even though the respondent made no admissions regarding the charges. Following the filing of disciplinary proceedings in Connecticut involving extensive charges of misconduct, the respondent was disbarred after he failed to attend the hearing. Thereafter, the Connecticut court vacated the disbarment order at the respondent’s request to permit him to submit his resignation. In resigning, the respondent expressly disavowed any admission of wrongdoing or misconduct.
Upon learning of the respondent’s Connecticut resignation, bar counsel petitioned for reciprocal discipline in Massachusetts. The respondent opposed, arguing that reciprocal discipline could not be imposed because his resignation in Connecticut was not accompanied by an admission of misconduct. In a case of first impression, the Supreme Judicial Court held that Rule 4:01, §16, permits reciprocal discipline as long as the respondent resigned during the pendency of a disciplinary investigation or proceeding; the rule does not require a finding or admission of misconduct as a precondition to reciprocal discipline on a resignation. The Court also rejected the respondent’s argument that reciprocal discipline would be “gravely unjust,” noting that the respondent initially chose not to contest the Connecticut disciplinary charges and then “voluntarily chose to resign in Connecticut in exchange for the vacation of the order of disbarment that had been previously entered against him,” knowing that no representations had been made about how other jurisdictions (such as Massachusetts) might treat his resignation.
All recent bar discipline decisions of the Board of Bar Overseers and the Supreme Judicial Court can be found at Recent Disciplinary Decisions.