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Opinion

Opinion CJE Opinion No. 99-3

Date: 01/15/1999
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.

Reporting Attorney's Conduct to Board of Bar Overseers

You have requested the advice of this Committee on whether you are obligated to report a matter involving an attorney appearing before you to the Board of Bar Overseers. In your letter you state that following the default of this attorney's client, the lawyer advised his client not to surrender himself to the court until the attorney's schedule permitted.

Canon 3(B)(3)(b) provides that "If a judge shall become aware of unprofessional conduct by . . . a lawyer . . . he shall initiate appropriate investigative or disciplinary measures." As we stated in CJE Opinion No. 92-3, a judge is required to initiate such measures when she becomes aware of improper conduct by a lawyer. In CJE Opinion No. 98-11 the Committee explained that the reporting requirement is triggered when the information before the judge leads the judge to conclude that a substantial issue has been raised regarding a violation.

Whether on these facts a referral to the Board of Bar Overseers should be made depends on whether the lawyer's advice raises a substantial issue of whether a violation of the law or the disciplinary rules has occurred. This is an issue you must determine. You must look to both the facts known to you and the applicable law to determine whether or not such an issue is raised in the situation you have presented. You do not indicate that the attorney was in any way involved in his client's actual default. Nor is there any indication that the lawyer suggested that the client avoid lawful service of the default warrant. Rather you are concerned with counsel's admission that he instructed his client not to surrender himself on the warrant until a particular time convenient to the lawyer. Thus, the question you must answer is whether counsel's advice to a client that the client delay surrendering to a warrant raises a substantial issue of violation of the law or the disciplinary rules.

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