House of Delegates approves new MBA Ethics Opinions

Thursday, March 28, 2024
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The Massachusetts Bar Association’s House of Delegates approved the publication of two new MBA Ethics Opinions at its meeting held over Zoom on Thursday, March 21. The Ethics Opinions address 1) lawyers who draft estate plans who are also involved with non-profit organizations, and 2) lawyers who plan to include a published judicial citation on their website when there are potential issues of confidential information.

Timothy Dacey, the chair of the MBA’s Committee on Professional Ethics, introduced the two opinions for HOD approval (2024-1 and 2024-2) and explained the procedure for publishing the non-binding advisory opinions that interpret the Rules of Professional Conduct for attorneys who have specific ethical inquiries. (Note: This service is free to all members of the Massachusetts bar. Learn more on the MBA’s Ethical Inquiries page.)

The summary of Opinion 2024-1 reads: When a Client asks a Lawyer to draft an estate plan that includes a testamentary gift to a non-profit organization for which the Lawyer serves as an officer or board member, the Lawyer’s relationship with the non-profit creates a conflict of interest necessitating the Client’s informed consent, confirmed in writing, before the Lawyer may proceed. In obtaining the Client’s informed consent, the Lawyer should advise the Client of the enhanced risk that an undue influence claim based on the Lawyer’s relationship with the non-profit may be asserted.

The summary of Opinion 2024-2 reads: A published judicial opinion can nevertheless contain confidential information protected by Rule 1.6 of the Massachusetts Rules of Professional Conduct. Accordingly, before including a citation to such an opinion on a firm website, a lawyer must inquire whether the information is “generally known” within the meaning of Rule 1.6(a). If not, and if the information is embarrassing or detrimental to the client, the lawyer must obtain the client’s informed consent before including a citation.

With no opposition from HOD members, the new Ethics Opinions have been published on the MBA website. They will also appear in an upcoming issue of the Massachusetts Law Review and have been submitted to Massachusetts Lawyers Weekly

Earlier in the HOD meeting, MBA President Damian J. Turco touted the newly launched Innocence and Conviction Integrity Initiatives webpage on the MBA’s website. The page includes information about the volunteer program, which offers rolling opportunities for attorneys to assist Massachusetts’ three innocence organizations in their efforts at remedying wrongful convictions. He encouraged interested members to apply.

Turco also celebrated section council leaders, including members of the Young Lawyers Division (YLD), for recent efforts at collaboration with outside groups, including county and affinity bar associations. The YLD’s networking efforts with law schools and the MBA’s participation with the Massachusetts Black Lawyers Association (MBLA) on Hella Black Trivia were two examples cited by the MBA president. Looking ahead, he noted that the MBA was ramping up its Law Day outreach to send lawyers to present to high school classrooms in May, and he encouraged county and affinity bar associations to participate in the program as well.

During her report, MBA President-elect Victoria “Tori” M. Santoro offered updates on several MBA programs and initiatives, including the Leadership Academy, which has wrapped up its programming for the year and is moving toward graduation. Santoro also said the newly launched Superior Court Lawyer for the Day Program was being well received in its fourth month, reaching nearly every county in the commonwealth. The program, which offers a lawyer for the day once a week in Superior Court and is still seeking volunteers, will start offering volunteer shifts in partial-day segments. 

Following approval of the January HOD meeting minutes, MBA Chief Legal Counsel and Chief Operating Officer Martin W. Healy recapped recent developments on Beacon Hill, including Gov. Maura Healey’s announcement of her intention to pardon individuals with misdemeanor marijuana convictions. He also noted that Joint Bar Committee Chair Jane Eden was doing a “wonderful job” leading the group that helps the governor’s office vet applicants for judicial openings. 

The next meeting of the MBA’s House of Delegates will take place on May 16.