| Date: | 07/02/2025 |
|---|---|
| Organization: | Massachusetts Supreme Judicial Court |
Letter Opinion of the Committee on Judicial Ethics
- This page, CJE Opinion No. 2025-01, is offered by
- Massachusetts Supreme Judicial Court
Opinion
Opinion CJE Opinion No. 2025-01
Table of Contents
Duty to Report Alleged Lawyer Misconduct
You seek guidance from the Committee on Judicial Ethics (CJE) regarding what actions the Code of Judicial Conduct requires you to take upon learning of allegations that a defense lawyer appearing before you engaged in criminal conduct with a key prosecution witness. For the reasons explained below, we advise that you are required to take “appropriate action” in accordance with Rule 2.15(D) and, in the circumstances here, this means making a report to the Office of Bar Counsel.
1. Background.[1] Shortly before trial was scheduled to begin in a criminal case before you, the Commonwealth filed a motion seeking to disqualify the defendant’s lawyer due to allegations made against the lawyer by a key prosecution witness. The witness had long been identified as a prosecution witness and was known to both the defendant and the defendant’s lawyer. In support of its motion, the Commonwealth provided a report prepared by a State Police Detective summarizing the trial preparation meeting during which the witness, who was represented by a lawyer, stated that the witness had previously sold cocaine to the defendant’s lawyer and had socialized with the lawyer and others at which time cocaine was consumed, including by the lawyer. Their last alleged transaction occurred approximately five years ago, but the witness threatened that the defendant’s lawyer “would not get good prices” on cocaine in the future if the lawyer’s examination of the witness on the stand was not to the witness’s liking.[2]
Upon receiving this report, you held a closed hearing with the defendant and the defendant’s lawyer and cautioned that the defendant’s lawyer should be mindful of any statements made during the hearing. The defendant’s lawyer acknowledged the possibility that the situation could implicate the Fifth Amendment to the United States Constitution but, on the record, denied the allegations and stated that the Commonwealth should “control its witness.” On the basis of the information before you, you found that there was a conflict of interest and dismissed the defendant’s lawyer. Successor counsel was appointed. It does not appear that the defendant or the defendant’s lawyer challenged your decision.
2. The Code. “Taking action to address known misconduct is part of a judge's duties.” Rule 2.15, Comment [1]. “Ignoring or denying known misconduct among . . . members of the legal profession undermines a judge's responsibility to participate in efforts to ensure public respect for the justice system.” Id. The actions a judge must take in response vary with both the degree of the judge's knowledge of the misconduct and the nature of the misconduct.
When a judge has “knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer’s honesty, integrity, trustworthiness, or fitness as a lawyer in other respects,” Rule 2.15(B) obligates the judge to “inform the Office of Bar Counsel” of the misconduct. Rule 2.15(B); see also FAQs at p. 13. “Knowledge” is a defined term that means “actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.” Code, Terminology Section. Mandatory reporting pursuant to Rule 2.15(B) is reserved for “those offenses that an independent judiciary must vigorously endeavor to prevent.” Rule 2.15, Comment [1].
When instead a judge has “knowledge of or receive[d] credible information indicating a substantial likelihood that a lawyer has otherwise violated the Rules of Professional Conduct,” Rule 2.15(D) requires the judge to take “appropriate action.” Rule 2.15(D); FAQs at p. 13 (if a judge "only suspect[s] that a lawyer has committed a violation of the Rules of Professional Conduct," the judge is not necessarily required to inform the Office of Bar Counsel, but is required to take "appropriate action."). Reasonably understood, Rule 2.15(D) also applies when a judge has received credible information indicating a substantial likelihood that the lawyer has committed a violation of the Rules of Professional Conduct that raises questions about the lawyer’s honesty, integrity, trustworthiness, or fitness as a lawyer in other respects. What constitutes “appropriate action” in any particular situation necessarily depends upon the nature of the misconduct in question, but it may include “communicating directly with the lawyer, reporting to the lawyer’s supervisor or employer, and/or reporting to the Office of Bar Counsel.” Rules 2.15, Comment [2].
3. Discussion. While you do not have “actual knowledge” that the lawyer purchased cocaine from the key witness sufficient to trigger application of Rule 2.15(B), we nonetheless conclude that you should report the lawyer’s alleged conduct to the Office of Bar Counsel, as, in the circumstances described, this constitutes the “appropriate action” required under Rule 2.15(D).
First, we concur that you received sufficient “credible information” for the purposes of Rule 2.15(D). Central to this conclusion is your own judicial determination that the information available to you was sufficiently credible to support a finding that a conflict of interest necessitated dismissal of the lawyer and appointment of successor counsel. The State Police Detective’s report, which recounted the key witness’s allegations regarding the lawyer’s illegal conduct, the fact that the key witness, without personal benefit, appears to have admitted to engaging in illegal acts along with the lawyer, and the lawyer’s acknowledgment of potential Fifth Amendment issues provide further support for the conclusion that you received sufficient “credible information.”
Second, we conclude that there is a substantial likelihood that the conduct alleged, if true, violates one or more of the Rules of Professional Conduct, SJC Rule 3:07, including:
- Rule 1.7 of the Rules of Professional Conduct prohibits a lawyer from representing a client where a concurrent conflict of interest exists, including when there is a significant risk that the representation will be materially limited by the lawyer’s personal interests. Rules of Professional Conduct, Rule 1.7(a)(2). This rule may be implicated when a defense lawyer is alleged to have engaged in criminal activity with a prosecution witness.
- Rule 8.4 of the Rules of Professional Conduct provides that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” or to “engage in any other conduct that adversely reflects on his or her fitness to practice law.” Rules of Professional Conduct, Rule 8.4(b), (h). It is the Committee’s opinion that a lawyer who purchases and uses cocaine has likely committed a criminal act that reflects adversely on the lawyer’s integrity and respect for the legal system in a manner that calls into question the lawyer’s fitness to practice law, especially when the lawyer used cocaine in the presence of other members of the community, as alleged here. See, e.g., Rules of Professional Conduct, Rule 8.4, Comment [2] (“Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.…A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.”).
While the Committee is not equipped or empowered to determine whether the lawyer’s conduct did in fact violate these or another Rule of Professional Conduct, we advise that because you received “credible information” indicating a substantial likelihood that the lawyer violated one or more provisions of the Rules of Professional Conduct, Rule 2.15(D) requires that you take “appropriate action.”
Therefore, finally, we must consider what constitutes “appropriate action” in these circumstances. As we have discussed, “appropriate action” “may include communicating directly with the lawyer, reporting to the lawyer’s supervisor or employer, and/or reporting to the Office of Bar Counsel. These lists of actions are illustrative and not meant to be limiting.” Rule 2.15, Comment [2]. Here, you have already communicated with the lawyer. It is also our understanding that the lawyer is not supervised by another lawyer to whom you could make a report. However, given the nature of the alleged conduct and the fact that, if confirmed, this conduct likely raises concerns about the lawyer’s fitness to practice law, we advise that “appropriate action” in these circumstances means taking the further step of making a report the Office of Bar Counsel, which is best situated to evaluate the circumstances and determine whether discipline is warranted.
4. Conclusion. You received credible information indicating a substantial likelihood that a lawyer appearing before you has violated the Rules of Professional Conduct, obligating you to take “appropriate action” in accordance with Rule 2.15(D). Because the lawyer’s alleged conduct raises a “substantial question regarding the lawyer’s honesty, integrity, trustworthiness, or fitness as a lawyer in other respects,” the action that is appropriate in these circumstances is to report the lawyer to the Office of Bar Counsel.