Ethics Opinion

Opinion 03-2

February 2003

Summary: A lawyer who drafts an advertisement for a client to place under its own name runs a substantial risk of violation of Rules 3.6 and 8.4(a) of the Massachusetts Rules of Professional Conduct (MRPC) when the lawyer concludes that placing the same advertisement under her own name would violate Rule 3.6.

Facts: A client wishes a lawyer to draft and place an advertisement in a newspaper concerning a pending lawsuit. The lawyer has declined to do so on the ground that in the circumstances of the litigation such an advertisement, although truthful, would likely materially prejudice the proceeding and thus violate the high threshold prescribed by MRPC Rule 3.6. The client inquired whether it could place the advertisement under its own name and the lawyer said that it could. The client then asked the lawyer to draft the advertisement for insertion under client’s own name. The lawyer inquires whether she may do so without violating the ethical rules.

Discussion: MRPC 3.6 provides:

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

MRPC 8.4 provides:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another. . . .

In Opinion 82-8 this Committee advised a lawyer who developed a settlement position with a client to dissuade the client from presenting that position to the other side directly. We stated that the “client’s proposed discussions with [the other side] represent, in some measure, the lawyer’s work, and permitting [the client] to transmit the product of such work constitutes ‘causation’ by the lawyer in violation of DR 7-104(A)(1),” the predecessor to Rule 4.2. The causation language was a reference to the prohibition in then DR 1-102(A)(2) against violation a disciplinary rule “through actions of another.” We contrasted the situation presented from one in which the client on its own had settlement discussions with the other side. In the case presented to the Committee, the law firm encouraged, or acquiesced in, the transmission of a settlement offer it had helped prepare. We saw that as violating the policy prohibiting a lawyer from communicating with the other side directly when the other side is known to be represented by counsel. We have referred to the advice we gave in Opinion 82-8 approvingly in subsequent Opinions, see Opinions 98-1 and 87-3.

The present inquiry is rather like the factual situation presented in Opinion 82-8. Indeed, the lawyer is not just being asked to participate in drafting the advertisement; she is being asked to do it all. Rule 3.6 restricts the freedom of speech of a lawyer when there is a substantial likelihood that the lawyer’s speech will materially prejudice the litigation. The lawyer has concluded that the proposed advertisement will do just that. We assume, from the nature of the inquiry, that the lawyer has also concluded that material prejudice is likely whether she or her client signs the advertisement. Therefore, following our previous Opinion 82-8, we advise that the combination of Rules 3.6 and 8.4(a) indicate that preparation of the advertisement by the lawyer would constitution a violation of the Rules.

We should note, however, that the American Bar Association, in recently revising the Model Rules of Professional Conduct, added an interpretive Comment to its Rule 8.4(a), which is identical to our MRPC 8.4(a), without changing the text of the Rule. The new ABA Comment states: “Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.” The action of the ABA raises three questions that we need to address. 1) What does the new Comment mean in the context of the facts of the present inquiry? 2) Is the new Comment interpretive of the Rule or does it, in effect, change the Rule? 3) Whether the new Comment represents an interpretation or a change in the Rule, would our Supreme Judicial Court follow it, and indeed might the SJC, if faced with the question in a matter simply amend the existing Comments in the proceeding?

1) It is possible to read the new Comment narrowly so as not to change the advice that this Committee gave in Opinion 82-8. On that reading, the sentence simply permits the lawyer to advise a client about actions the client may legally undertake but it does not permit the lawyer to make the client her mouthpiece to effectuate what she could not do herself. But the new Comment may also be read as contrary to Opinions like our 82-8 and to permit the lawyer to achieve indirectly through the client what the lawyer may not do directly. If that is the case, the new Comment, while clarifying the meaning of Rule 8.4(a), would go far to undercut the prohibitions of many other Rules.

2) A narrow reading of the new ABA Comment would indicate that the substance of the Rule has not been changed. In our view, a broad reading of the added sentence would indicate a substantial narrowing of what Rule 8.4(a) suggests on its face. In our view, that should not be accomplished as an interpretation of present Rule 8.4(a).

3) It is difficult to predict what the SJC would do if faced with the interpretation of Rule 8.4(a) as it now reads. In recent months the SJC has followed two different approaches when confronted with confusion regarding the Rules and Comments that it adopted in 1998. In Messing, Rudavsky & Weliky v. President and Fellows of Harvard College, 436 Mass. 347 (2002), the Court simply rewrote the Comment to Rule 4.2 to change the Comment’s interpretation of the Rule and applied the rewritten Comment in the case it was then deciding. But in In re Georgette, 439 Mass. 28 (2003), the Court noted many difficulties involved in interpreting Rule 1.14 and its Comment and referred the problems to its Standing Committee on the Model Rules to make a recommendation for a revised Rule and Comment.

We are therefore uncertain how the SJC would address this issue substantively and procedurally. Adhering to our own former Opinion 82-8, but uncertain whether it would be followed, all we can advise in response to this inquiry is that preparing an advertisement for the client to use under its own name presents a substantial risk that the lawyer would be held in violation of the MRPC. This is an issue that the SJC’s Standing Committee on the Model Rules, which is charged with evaluating the work of the American Bar Association’s Ethics 2000 Commission, may wish to address as it is important to lawyers in many areas of practice.

This advice is that of a Committee without official governmental status.