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January 2004

THAT WAS THE YEAR THAT WAS: Noteworthy Decisions on Ethics and Bar Discipline in 2003

by
Constance V. Vecchione and John W. Marshall

The beginning of the new year is the traditional time to take a second look at the significant events of the previous twelve months. In that spirit— and while not as much fun as a “best of” movies or music— we offer a review of a selection of important civil, criminal and disciplinary cases decided in 2003 involving professional ethics and bar discipline.

The Supreme Judicial Court issued three full bench opinions in disciplinary matters. The thread common to all is the Court's reluctance to credit any but exceptional matters in mitigation to reduce the level of discipline.

Of these three decisions, the one that perhaps was the subject of the most discussion among members of the bar was Matter of Steven M. Foley, 439 Mass. 324 (2003). The underlying facts were as follows. The respondent fabricated a defense to criminal charges and encouraged his client to use the defense in his testimony at an upcoming trial at the Boston Municipal Court. Although the respondent did not know it, the client in fact was an undercover FBI agent investigating corruption at the BMC who secretly taped all his conversations with the respondent. The case never went to trial and no false testimony was presented to the court.

Bar Counsel initially sought a three-year suspension. The hearing committee recommended a public reprimand to the Board. The Board voted to recommend a six-month suspension. The single justice of the court ordered an eighteen-month suspension, rejecting the Board’s findings in mitigation that the agent induced the respondent’s misconduct, that the respondent’s consideration of presenting the false testimony was a brief “flirtation” that he quickly realized was in error, that he did not actually present the testimony in court, and that he was limited by the U.S. Attorney’s office in his cross-examination of the agent, who testified only to authenticate the tapes. The respondent appealed.

In rejecting the appeal and increasing the length of the suspension to three years, the Court noted that tapes of the conversations—“[t]he respondent’s own words”—allowed the Court to perceive “with full clarity the depth of that misconduct and the ready ease with which the respondent engaged in it.” In a detailed analysis, the SJC agreed with the single justice that none of the factors found by the Board was mitigating and further took issue with the respondent’s claim that “no harm was done” because his client was in fact an FBI agent and the matter was not “real.” To the contrary, said the Court, “the most significant harm arising from the respondent's conduct is its effect on the profession and the public's confidence in its integrity.” The Court indicated that, had the false testimony been presented in court, “the sanction the respondent would be facing most assuredly would have been disbarment.”

A second case that turned on the Court’s rejection of matters offered in mitigation is Matter of Robert A. Griffith, 440 Mass. 500 (2003). The respondent had represented an estate in a civil rights and wrongful death action, during the course of which he intentionally failed to make “important disclosures during discovery and trial concerning [the decedent’s] medical records and treatment.” Bar Counsel appealed the recommendation of the hearing committee and the Board of Bar Overseers that the respondent be publicly reprimanded, and the single justice referred the case to the full court. The Supreme Judicial Court found that a one-year suspension was the proper sanction for the respondent’s misconduct and that the material omissions in the course of affirmative discovery requests constituted a form of misrepresentation made more serious by its intentional nature and its potential to obstruct justice.

The Court further, and significantly, did not accept the Board’s finding that the respondent’s obsession with the case and the contentious nature of the proceeding was mitigating: “Litigation is often contentious, and emotions and stress are natural. Lawyers, nonetheless, despite the tension of litigation, are always responsible for maintaining the ethical standards of the profession.” In imposing a one-year suspension, the SJC did consider other matters in mitigation, but cautioned that the sanction in this case was tailored to its particular facts and to the novelty of the issues and that future similar infractions could result in greater discipline.

Finally, in Matter of Dragon, 440 Mass. 1023 (2003), the Supreme Judicial Court once again affirmed that disbarment or indefinite suspension is the presumptive sanction for intentional misappropriation of client or other trust funds when the client is deprived of those funds. The Court found no causal connection between the misconduct and the respondent’s claims in mitigation that he had performed substantial pro bono work and that his office records had been destroyed in a flood. The Court also noted that the respondent’s further claims in mitigation—that he had been ill, that he had attended continuing legal education programs, and that he had changed the focus of his practice—did not qualify as the type of special mitigating factors warranting departure from the presumptive sanction. The Court here found that disbarment was warranted given the absence of special mitigating factors coupled with the presence of aggravating factors, such as the lack of sophistication or vulnerability of many of the clients whose funds were misappropriated, the respondent’s lack of appreciation for the ethical rules during the lengthy pattern of misconduct, and the respondent's lack of candor with bar counsel.

Three criminal and civil decisions by the Supreme Judicial Court were also of particular interest for their clarification of several of the Massachusetts Rules of Professional Conduct. The first of these, Commonwealth v. Mitchell, 438 Mass. 535 (2003), is mandatory reading for all criminal defense counsel. The decision sets forth the standard for determining when a criminal defense attorney “knows” that a defendant client intends to testify falsely within the meaning of Mass. R. Prof. C. 3.3(e).

Mitchell instructs that the lawyer must have a “firm basis in fact” for concluding that a client’s testimony will be false before acting under Rule 3.3(e), that this standard means that a lawyer must act in good faith based on objective circumstances firmly rooted in fact, and that conjecture, speculation, inconsistencies in the evidence, or the existence of strong physical and forensic evidence implicating the defendant are not sufficient to establish “knowledge”. Once defense counsel makes the determination that the client will testify falsely, Mitchell gives detailed guidance as to what counsel and the trial court each must do and emphasizes the need to maintain client confidentiality when seeking to invoke these procedures.

The second case, Coke et als v. Equity Residential Properties Trust, 440 Mass. 511 (2003), is a civil case containing a helpful discussion of motions to disqualify based on violations of Mass. R. Prof. C. 1.7(a). Rule 1.7(a) prohibits a lawyer from representing a client if the representation will be directly adverse to another client unless the representation will not adversely affect the relationship with the other client and both clients consent. The defendant objected that the plaintiff’s attorney had a conflict of interest because the attorney had joined a firm representing the defendant in an unrelated matter. When the superior court denied the motion to disqualify, the defendant sought interlocutory review of the order.

Eventually, the defendant fired the plaintiff’s attorney’s law firm and the SJC held that the case was moot. Important factors in this determination were that there was no claim of breach of confidentiality or other harm to the defendant and that it was the defendant that terminated the law firm, not the firm that fired the client. Nevertheless, citing prior decisions, the majority of the Court commented that it continued to be of the view that “‘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.’” A vigorous concurring opinion took an even dimmer view of the conduct. Unstated but implicit in the decision—and true before and after this case—is the fact that, even if a lawyer or law firm is not disqualified, a lawyer could be found to have committed a violation of Rule 1.7 (or other rules of professional conduct) warranting discipline.

The third case, Clark v. Beverly Health And Rehabilitation Services, Inc., et als., 440 Mass. 270 (2003), revisits the application of Mass. R. Prof. C. 4.2 to organizations, addressing an issue left open by Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347 (2002) and Patriarca v. Center for Living and Working, Inc., 438 Mass. 132 (2002), namely, whether former employees of an organization are considered to be represented by counsel for the organization.

The defendant corporation in this case sought court orders prohibiting the plaintiff from ex parte contact with former employees of the defendant. The SJC held that Mass. R. Prof. C. 4.2 and Comment 4 to that rule (as amended after the Messing decision) do not prevent an opposing party’s communications with former employees of an organization, even when contact with such persons would be prohibited by the Messing case (and the rule and comment) were they still current employees. 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 discussion of matters that are privileged or confidential.

The full text of the bar discipline decisions and summaries of these and other important cases addressing the rules of professional conduct may be found at the Office of Bar Counsel website, www.mass.gov/obcbbo. Keep current and have a happy new year.



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