Ethics Opinions

Summary: Under Rule 8.3, Comment 3, a lawyer "has knowledge of a violation [requiring reporting to Bar Counsel] when the lawyer possesses supporting evidence such that a reasonable lawyer under the circumstances would form a firm opinion that the conduct in question had more likely occurred than not."

Rule 8.3's requirement to report misconduct to Bar Counsel's Office is triggered by a lawyer's discovery (in litigation involving breakup of a law firm) of a document indicating that an attorney, a former partner of the client and an opposing party in the litigation, intentionally omitted mentioning a conviction for fraud in his letter recommending an applicant for admission to the bar. The discovered document may constitute client's "confidential information," as newly defined in Comment 3A to Rule 1.6. If so, the reporting requirement would be excused unless client consents to a report. Lawyer also needs to advise his client, who is a lawyer, about the latter's own reporting obligation under Rule 8.3(a).

Summary: Where no personal representative or other fiduciary of an estate has been appointed, a lawyer may not, in the absence of a court order or the appointment of a personal representative or other fiduciary, release her file concerning the execution of the will of a deceased client to a proponent of the will when a will contest is pending.

Summary: A lawyer asked to represent multiple plaintiffs against the same defendant, whether or not on the same claim, will need to consider and discuss with potential clients whether confidentiality or conflict problems exist before undertaking requested representation. The appropriate response will turn on the factual circumstances of each situation.

Summary: When lawyers change firms and clients move with them, new engagement letters should be executed with the new firms as to hourly matters, and must be executed as to contingent matters, even when no material terms change. A lawyer bears the burden of justifying as fair and reasonable to the client any material change in the terms of the engagement that occurs after a representation commences. As to clients who want the old firm to continue to represent them, that firm's actions must comply with ethical and, where applicable, court rules.

Summary: A lawyer for a party may "friend" an unrepresented adversary in order to obtain information helpful to her representation from the adversary's nonpublic website only when the lawyer has been able to send a message that discloses his or her identity as the party's lawyer.

Summary: The purchase price of the practice of a lawyer taking retirement status pursuant to Rule 4:02 may include a portion of legal fees earned in the future from representation of current and former clients of the retiring lawyer. It may not, however, include a portion of legal fees earned from representation of new clients referred by the retired lawyer.

Summary: The Massachusetts Rules of Professional Conduct do not prevent a lawyer from representing a client at a municipal planning agency's land use hearing when a member of the lawyer's firm is also a member of the municipality's Board of Zoning Appeals since the BZA has no interest or jurisdiction with respect to the matter.

Summary: Payment by a lawyer to a commercial marketing service only after a prospective client contacts the lawyer upon receiving a proposal for services from the lawyer who has learned of the client's need from the marketing service's website does not violate Rule 7.3(f). Under the operation of the marketing program the payment is for permitted "advertising" rather than prohibited "solicitation."

Summary: The ability of civilian lawyers employed by the Department of the Navy who have been designated for furlough leave for budget purposes to give advice to the Navy on matters relating to furlough policy as well as non-furlough matters is a matter of federal, not Massachusetts, professional responsibility law.

Summary: A lawyer generally may store and synchronize electronic work files containing confidential client information across different platforms and devices using an Internet based storage solution, such as "Google docs," so long as the lawyer undertakes reasonable efforts to ensure that the provider's terms of use and data privacy policies, practices and procedures are compatible with the lawyer's professional obligations, including the obligation to protect confidential client information reflected in Rule 1.6(a). A lawyer remains bound, however, to follow an express instruction from his or her client that the client's confidential information not be stored or transmitted by means of the Internet, and all lawyers should refrain from storing or transmitting particularly sensitive client information by means of the Internet without first obtaining the client's express consent to do so.

Summary: When a suit to recover damages for personal injuries incurred on tribal lands in State X is contemplated, the ethics rules governing a contingent fee agreement between a Massachusetts attorney and her Massachusetts client are those of State X or the tribal court in State X and not the Massachusetts Rules of Professional Conduct.

Summary: The conduct of an out-of-state attorney who deliberately misrepresented that he was representing a client in order to induce Lawyer's client to settle a matter falls within the requirement of Rule 8.3(a) mandating that Lawyer report the conduct to Bar Counsel of the Board of Bar Overseers. On the facts of this inquiry, however, the Lawyer's information is protected by Rule 1.6, and therefore under Rule 8.3(c) Lawyer needs client consent to make such a report.

Summary: Some information acquired by a lawyer in the course of briefly representing the residuary beneficiary under a will that she drew for the decedent is not protected confidential information because it is "generally known." Other information, not "generally known," is confidential information that may not be revealed. However, the attorney who drew the will has the right to disclose to specific legatees that they are named beneficiaries so that they may take steps to see that the decedent's wishes are carried out. Such disclosure is "implicitly authorized" by Rule 1.6(a) of the Rules of Professional Conduct to carry out the wishes of the decedent, lawyer's former client.

Summary: As a general proposition it is not a violation of Rules 4.2 and 8.4(a) for a lawyer to advise her client to urge another person to release an attachment on the client's property, even though the other person is represented by counsel. The lawyer would, however, violate Rule 4.2 if she handed the other person a release of the attachment without first obtaining  the permission of the other person's lawyer.

Summary: If a lawyer appointed by the court to represent an indigent criminal defendant comes to know that his client filed an intentionally false affidavit of indigency, the lawyer may choose to serve without compensation. If he chooses not to do so, and the client refuses to rectify the fraud, the lawyer must seek to withdraw in accordance with the Rule 3.3(e) procedure and disclose the fraud in connection with his motion.

Summary: An attorney who cannot perform the terms of an escrow arrangement because of the failure of his client, who has cut off communication, to deliver all the items promised has good cause to notify his client of his intention to withdraw. He should also notify both parties that because of the failure to consummate the settlement, unless the parties instruct him jointly concerning disposition of the items he is holding, or unless one party takes action to obtain court instructions, the attorney shall decide whether to file a bill of interpleader himself or take such other action as seems appropriate at the time.

Summary:  An attorney may not accept a second appointment as guardian ad litem of an incompetent if the appointment would require the attorney to approve prior payments made by the incompetent’s estate for previous services rendered by the attorney as guardian ad litem. The availability of other arrangements for reviewing the attorney’s prior invoices, however, may make it possible for the attorney to accept the appointment.

Summary: A lawyer who has provided legal advice to a state agency while in private practice is not automatically precluded by Massachusetts Rule of Professional Conduct (MRPC) 1.11(c)(1) from participating in matters about which she had previously provided legal advice and services should she be named commissioner of the same agency.    

Summary:  A lawyer who represents a client in a real estate transaction that is adverse to a party who has offered to retain the lawyer with respect to a separate, future transaction involving the same property faces a potential ethical dilemma.  Under Rule 1.7, the lawyer may agree to undertake the representation of both parties only if the lawyer reasonably perceives no risk of an actual or potential conflict in her present engagement and both sides consent after disclosure of all of the facts necessary to permit the client to appreciate the significance of the matter in question.  In all other circumstances, the Committee believes that the lawyer should decline the proposed representation because of its potential adverse effect on the lawyer’s ability to zealously represent her existing client.  Regardless of the course of action that the lawyer ultimately takes, she may not later represent the currently-adverse party in a dispute with the lawyer’s original client concerning the subject matter of her representation of that client without the original client’s express consent, nor may she disclose or utilize any confidential information received from the original client for the benefit of the adverse party without obtaining the original client’s specific authorization. 

Summary:   A request that a judge instruct jurors that they are free to speak to participating lawyers after the case is concluded would be improper if the proposed instruction does not describe completely the restrictions contained in Rule 3.5(d). In any event, the Rule forbids the request if the lawyer’s purpose in requesting the instruction is to encourage the juror to talk about the deliberation process.

Summary:  While there is no outright bar to Massachusetts lawyers’ drafting wills naming themselves as fiduciaries and, as such, retaining themselves as counsel to the fiduciaries, ethical rules require that these steps be taken only when in a client’s best interests.

Next, Lawyer must consider whether bringing suit against B might impair her ability to represent AB in the pending litigation by undermining her ability to obtain B’s cooperation in the suit. Lawyer must also consider whether pursuing C’s claim might require attachment of B’s interest in AB and thus involve impermissible use of AB’s confidential information. Finally, Lawyer must consider whether C’s lawsuit against B might have such an impact on the financial interests of AB or A that her representation of C would be materially limited. If any of these possibilities seem likely, Lawyer cannot undertake the proposed representation without meeting the consent and reasonableness requirements of Rule 1.7(b)(1) and (2).

A participating lawyer's payment of a modest administrative fee to an insurance company which maintains a panel of participating lawyers to serve its insureds under a prepaid legal services plan does not violate DR 2-103 (E) when the insurance company meets the requirements of a "qualified legal assistance organization" under that Rule.