New ‘Traps’ Excerpt: Professional Conduct and Honesty with Others

Thursday, April 22, 2021
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The Massachusetts Bar Association is in the process of updating its Traps for the Unwary publication, a member-exclusive reference guide last published in 2011 that looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. While the guide is nearing completion, we invite members to share any “traps” they’ve come across in their practice for possible inclusion in the next edition.

Share your trap suggestion by emailing it to Attorney James E. Harvey of O’Malley and Harvey LLP, who is again serving as editor-in-chief for the project and is working closely with liaisons from several MBA section councils.

To help you identify potential traps, the MBA will periodically publish excerpts from Traps for the Unwary in eJournal. View this week’s trap, plus previously shared examples, below.

TRAPS EXAMPLE: RULES OF PROFESSIONAL CONDUCT, HONESTY WITH OTHERS

Mass. R. Prof. C. 4.1 states: “In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person . . .” Thus, for example, an attorney cannot make a pretext phone call in the course of an investigation. See Matter of Crossen, 450 Mass. 533, 880 N.E.2d 352 (2008) (disbarment for pretext and trickery in scheme to possibly discredit judge in client’s litigation). In addition, an attorney may not induce another person to commit an act that the Rules of Professional Conduct prohibit an attorney from committing. Mass. R. Prof. C. 8.4(a). I.e., an attorney cannot instruct someone to do something that the rules prohibit the attorney from doing himself or herself.

VIEW PREVIOUS EXAMPLES