Ethical Lawyering in Massachusetts 4th Edition by James S Bolan ISBN 9781575899206 1575899205

This comprehensive treatment of ethics offers practical guidance on lawyers’ duties to clients, to the court, to colleagues, and to third parties. Chapters are offered on ethics for lawyers in particular practice areas, including business, estate planning, personal injury, divorce, real estate, and criminal defense. This popular manual also gives you practical insight into the disciplinary process and how to avoid malpractice. A must-have manual for new and seasoned lawyers alike.

Chapter 1
Sources of Ethical Authority in Massachusetts
§ 1.1 SELF-REGULATION AND THE ROLE OF THE SUPREME JUDICIAL COURT
§ 1.2 THE MASSACHUSETTS RULES OF PROFESSIONAL CONDUCT—ORGANIZATION AND SCOPE
§ 1.3 THE PREDECESSOR TO THE MASSACHUSETTS RULES OF PROFESSIONAL CONDUCT—THE MASSACHUSETTS CANONS OF ETHICS AND DISCIPLINARY RULES
§ 1.4 JURISDICTIONAL REACH OF MASSACHUSETTS RULES OF PROFESSIONAL CONDUCT
§ 1.5 CONCLUSION
Chapter 2
Lawyer Marketing
§ 2.1 INTRODUCTION
§ 2.2 LIBERALIZED RULES ON ADVERTISING AND SOLICITATION
§ 2.2.1 Overview
§ 2.2.2 Background of the 1999 Amendments
§ 2.2.3 Summary of the 1999 Changes
§ 2.2.4 Amendments in 2015
§ 2.3 RULE 7.1—COMMUNICATIONS CONCERNING A LAWYER’S SERVICES
§ 2.3.1 Supreme Judicial Court Comments
§ 2.3.2 Authors’ Comments
§ 2.4 RULE 7.2—ADVERTISING
§ 2.4.1 Supreme Judicial Court Comments
§ 2.4.2 Authors’ Comments
§ 2.5 RULE 7.3—SOLICITATION OF CLIENTS
§ 2.5.1 Supreme Judicial Court Comments
§ 2.5.2 Authors’ Comments
§ 2.6 RULE 7.4—COMMUNICATION OF FIELDS OF PRACTICE
§ 2.6.1 Supreme Judicial Court Comments
§ 2.6.2 Authors’ Comments
§ 2.7 RULE 7.5—FIRM NAMES AND LETTERHEADS
§ 2.7.1 Supreme Judicial Court Comments
§ 2.7.2 Authors’ Comments
§ 2.8 INTERNET AND E-MAIL ISSUES
Chapter 3
Taking the Case: Conflicts of Interest
§ 3.1 INTRODUCTION
§ 3.1.1 Prior Representations
§ 3.1.2 Simultaneous Representations
§ 3.1.3 Independent Professional Judgment
§ 3.1.4 Lawyer as Witness
§ 3.2 PRIOR REPRESENTATION OF ADVERSE PARTY
§ 3.2.1 General Principles
§ 3.2.2 Screening
§ 3.3 SIMULTANEOUS REPRESENTATION OF CONFLICTING INTERESTS
§ 3.4 INDEPENDENT PROFESSIONAL JUDGMENT
§ 3.5 OTHER MATTERS
§ 3.5.1 Prohibited Transactions
§ 3.5.2 Government Lawyers
§ 3.6 LAWYER AS WITNESS
§ 3.6.1 Accepting Employment
§ 3.6.2 When the Lawyer Is Called by Opposing Counsel
§ 3.7 APPEALABILITY OF DISQUALIFICATION ORDERS
Chapter 4
The Attorney-Client Relationship
§ 4.1 PREREPRESENTATION CONTACTS AND CAVEATS
§ 4.1.1 Phone Inquiries
§ 4.1.2 Roles of Receptionists and Administrative Assistants
§ 4.1.3 “Second Opinion” or Successor Counsel
§ 4.1.4 Initial “Consultation Interview”
§ 4.1.5 Safeguards to Avoid Early or Problematic Representations
§ 4.1.6 Limited Assistance Representation
(a) Overview
(b) Pitfalls and Problems
Misunderstandings Between the Lawyer and the Client as to the Scope of the LAR
Risks of Accepting LAR in a Complex Case
Risk of Impermissible Expansion of the Scope of LAR
Risks of Ghostwriting
Reasonableness in the Limitation of the Scope of Representation
§ 4.1.7 Information Storage and Retrieval on Preliminary Contacts
§ 4.1.8 Client Questionnaires and Standardized Intake Forms
§ 4.1.9 Determining Who Is the Client
§ 4.1.10 Follow-Up Steps to Confirm Representation
§ 4.1.11 Retainers and Fee Agreements with Time-Based Cases
§ 4.1.12 Fee Agreements and Expenses for Contingent Fee Cases
§ 4.1.13 Attorney’s Lien
§ 4.1.14 Ongoing Case and Client Communication
§ 4.1.15 Periodic Updates and Tickler Systems
§ 4.1.16 Client Assistance in Case Development
§ 4.1.17 Experts and Other Professionals in Case Development
§ 4.1.18 Differences of Opinion as to Tactics and Representation
§ 4.1.19 Declining or Terminating Representation; Withdrawal
§ 4.2 ELEMENTS OF SUCCESSFUL REPRESENTATION
§ 4.2.1 Competency
§ 4.2.2 Confidentiality and Discretion
§ 4.2.3 Electronic Communications and the Attorney-Client Relationship
§ 4.2.4 Zealous Advocacy with Realistic and Responsible Representation
§ 4.2.5 Representing Clients, Not Causes
§ 4.2.6 Fair and Accurate Billing
§ 4.2.7 Client Funds
§ 4.3 SPECIAL CAVEATS
§ 4.3.1 Lawyer and Client in Business Relationships: Counsel Beware
§ 4.3.2 Attorney-Client Social and Sexual Relations: Counsel Beware
§ 4.3.3 A Special Note on Attorney Fees: What Will Get You Disciplined
(a) Charging a Clearly Excessive Fee
(b) Falsified or Padded Billing
(c) Changing from an Hourly Rate to a Contingency Fee when the Hourly Rate Would Have Been Less
(d) Charging Legal Rates for Nonlegal Work
(e) Charging Twice for the Same Work
(f) Failing to Sign a Written Contingent Fee Agreement
(g) Failing to Obtain the Client’s Permission to Divide the Attorney Fee
(h) Charging Separately for Negotiating Provider/Insurer Liens in a Personal Injury Case
(i) Charging for Work That Did Not Need to Be Done
(j) Failing to Refund a Clearly Excessive Fee and/or Requiring a Release as a Condition of a Refund
(k) Withdrawing Earned Fee from Retainer in IOLTA Without Accounting to Client
(l) Charging an Illegal Fee
EXHIBIT 4A—Sample Letter of Proposed Representation
EXHIBIT 4B—Sample Fee Agreement
Chapter 5
Fee Agreements
§ 5.1 INTRODUCTION
§ 5.2 BASIC STANDARD FOR LEGAL FEES
§ 5.2.1 Illegal Fees
§ 5.2.2 Clearly Excessive Fees
§ 5.3 COMMUNICATING THE BASIS OF THE FEE
§ 5.4 CONTINGENT FEES
§ 5.4.1 Definition of Contingent Fees
§ 5.4.2 Prohibited Contingent Fee Agreements
§ 5.4.3 Requirement of Written Contingent Fee Agreement
(a) Execution and Recordkeeping
(b) Contents
§ 5.4.4 Hybrid Fee Arrangements
§ 5.4.5 Collecting Less than the Maximum Percentages
§ 5.4.6 Model Agreements
§ 5.4.7 Judicial Review of Contingent Fees
§ 5.4.8 Interpretation of Contingent Fee Agreements
§ 5.4.9 Structured Settlements
§ 5.4.10 Termination of Contingent Fee Agreement
§ 5.4.11 Accounting for the Contingent Fee
§ 5.5 DIVISION OF FEES AMONG LAWYERS
§ 5.5.1 General Rule
§ 5.5.2 Forwarding Fees
(a) General Principles
(b) Prohibited Fee Divisions
§ 5.6 DIVIDING LEGAL FEES WITH A NONLAWYER
§ 5.7 AVOIDING ACQUISITION OF INTEREST IN LITIGATION
§ 5.8 ADVANCING EXPENSES
§ 5.9 AVOIDING INFLUENCE BY THIRD PARTIES
§ 5.10 PRACTICAL SUGGESTIONS FOR FEE ARRANGEMENTS
§ 5.10.1 When to Set the Fee
§ 5.10.2 Written Agreements
§ 5.10.3 What the Fee Agreement Should Contain
(a) Basis for Fee
(b) Court-Ordered Fee Awards
(c) Scope of Engagement
(d) Costs and Disbursements
(e) Interest
§ 5.10.4 Credit Cards
§ 5.10.5 Advance Payments and Retainers
(a) Retainers as Client Funds
(b) General Retainers Distinguished
§ 5.10.6 Security Agreements
§ 5.10.7 Billing Services
EXHIBIT 5A—Contingent Fee Agreement Form A
EXHIBIT 5B—Contingent Fee Agreement Form B
EXHIBIT 5C—Model Fee Agreements
Chapter 6
Duties to Clients
§ 6.1 OVERVIEW
§ 6.2 RULE 1.1—COMPETENCE
§ 6.3 RULE 1.2—SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
§ 6.4 RULE 1.3—DILIGENCE
§ 6.5 RULE 1.4—COMMUNICATION
§ 6.6 RULE 1.6—CONFIDENTIALITY OF INFORMATION
§ 6.6.1 Text of Rule 1.6
§ 6.6.2 Analysis of Comments
§ 6.6.3 Applications to Particular Facts
(a) E-Mail; Software Providers; Cloud Computing
(b) Sharing of Insured’s Confidences with Insurer
(c) Sharing Client Confidences Within Nonprofit Agency
(d) Protecting Client Confidences from Client’s Father
(e) Use of Client Confidences in Dispute with Client
(f) Use of Client Information to Secure Recovery in Fee Dispute
(g) Rule 1.18: Confidences Learned from Prospective Client
(h) Withdrawal from Representation
(i) Error in Tax Return
(j) Confidences Received from Deceased Client
(k) Joint Representation of Spouses
§ 6.7 RULE 1.14—CLIENT WITH DIMINISHED CAPACITY
§ 6.8 COUNSELOR—RULE 2.1 ADVISOR
Chapter 7
Duties to Colleagues
§ 7.1 INTRODUCTION
§ 7.2 GENERAL DUTIES OWED TO COLLEAGUES IN A LAW FIRM
§ 7.3 POTENTIAL SOURCES OF DUTIES
§ 7.4 THE IMPORTANCE OF A WRITTEN AGREEMENT
§ 7.4.1 For Ongoing Firms
§ 7.4.2 In the Event of Dissolution
§ 7.5 DISSOLUTION OR SEPARATION
§ 7.5.1 Dissolution Under the Uniform Partnership Act
§ 7.5.2 Effect of a Written Agreement
§ 7.5.3 Absence of a Written Agreement
§ 7.6 DUTIES TO COLLEAGUES AND CLIENTS IN LAW FIRM SPLIT-UPS UNDER MEEHAN V. SHAUGHNESSY AND ITS PROGENY
§ 7.6.1 Recognition of a Client’s Right of Choice
§ 7.6.2 Procedure for Notification to Clients and Removal of Cases
§ 7.6.3 Contact with Current Clients Before Departure
§ 7.6.4 Division of Fees
§ 7.6.5 Calculation of “Fair Charge”
§ 7.6.6 Allocation of Fees Earned After Dissolution
§ 7.6.7 The Right to Plan for a Departure
§ 7.6.8 Duty to Disclose
§ 7.6.9 Effect of a Breach of Fiduciary Duty
§ 7.7 MUTUALITY OF FIDUCIARY DUTIES AND THE LAW FIRM’S OBLIGATION OF GOOD FAITH AND FAIR DEALING
§ 7.7.1 Firing of Partners
§ 7.7.2 Setting of Compensation of Partners After Departure
§ 7.7.3 Potential Fiduciary Duty Issues Arising Out of Law Firm Mergers
§ 7.8 SCOPE OF DUTIES OWED BY ASSOCIATES OR NONEQUITY PARTNERS
Chapter 8
Duties to Courts
§ 8.1 INTRODUCTION
§ 8.2 ADMINISTRATION OF JUSTICE
§ 8.2.1 General Honesty in Dealings
§ 8.2.2 Refusal to Aid in Unauthorized Practice of Law
§ 8.2.3 Accountability for Delegated Legal Work
§ 8.2.4 Duty to Report Ethical Violations
§ 8.3 TRIAL BEHAVIOR
§ 8.3.1 Misuse of the Courts
(a) Exaggerated Claims and Frivolous Suits
(b) Threat of Criminal Prosecution to Gain Advantage
(c) Courteous Behavior
(d) Reference to Extraneous Matters
(e) Fairness to Parties
(f) Observation of Court Rules and Rulings
(g) Disclosure of Client Identity
§ 8.3.2 Duty of Candor
§ 8.3.3 Lawyer as Witness
§ 8.3.4 Contact with Judges and Jurors
(a) Contact with Judges
(b) Contact with Jurors
§ 8.4 FRAUD OR CLIENT PERJURY
§ 8.4.1 Lawyer’s Conduct
(a) General Obligation to Avoid Dishonesty
(b) Attempts to Mislead the Court
(c) Deception Through Attorney Silence
(d) Witness or Evidence Tampering
§ 8.4.2 Client Fraud or Perjury
§ 8.4.3 Fraud or Perjury by Others
§ 8.5 TRIAL PUBLICITY
§ 8.5.1 In General
§ 8.5.2 Criminal Proceedings Specifically
§ 8.6 CONCLUSION
Chapter 9
Duties to Third Parties
§ 9.1 INTRODUCTION
§ 9.2 OBLIGATION OF HONESTY AND FAIR DEALING
§ 9.2.1 General Scope of Prohibited Conduct
§ 9.2.2 Distortion or Misstatement
(a) Misconduct Relating to Fees
(b) Overstatement and Negotiation Tactics
(c) Silence
§ 9.2.3 Assisting Client in Fraudulent or Illegal Conduct
§ 9.2.4 Criminal Conduct by Attorneys
§ 9.3 DEALING WITH ADVERSARIES
§ 9.3.1 Duty to Avoid Unmeritorious or Malicious Actions
(a) Whether Claim Is Warranted
(b) Delaying Tactic
(c) Embarrassment or Burden to Third Persons
(d) Government Attorneys
§ 9.3.2 Violation of Customary Courtesies
§ 9.3.3 Intentional Violation of Rules of Procedure or Evidence
§ 9.3.4 Threats of Criminal or Similar Charges
§ 9.3.5 Blocking Access to Witnesses or Evidence
(a) Criminal Proceedings
(b) Civil Proceedings
§ 9.4 COMMUNICATION WITH PARTIES
§ 9.4.1 Parties Represented
§ 9.4.2 Communication with Unrepresented Parties
§ 9.5 OBLIGATIONS TO OTHERS
§ 9.5.1 Jurors
§ 9.5.2 Witnesses
§ 9.5.3 Judges and Other Public Officials
§ 9.5.4 General Public
§ 9.5.5 As Public Official
§ 9.6 CONCLUSION
Chapter 10
Getting Paid
§ 10.1 INTRODUCTION
§ 10.2 AN OUNCE OF PREVENTION
§ 10.2.1 Fee Agreements
(a) Written Communication Required
(b) Contingent Fee Agreements
(c) Flat-Fee Arrangements
§ 10.2.2 Retainers
§ 10.2.3 Billings
§ 10.2.4 Selectivity
§ 10.2.5 Securing the Fee
§ 10.2.6 Time Records
§ 10.3 PITFALLS TO AVOID IN SECURING THE FEE
§ 10.3.1 Business Transactions with Clients
§ 10.3.2 Notes and Mortgages
§ 10.3.3 Escrow Funds or Joint Checks
§ 10.3.4 Receipt of Other Property or Services
§ 10.3.5 Credit Card Payments
§ 10.4 FEE DISPUTES
§ 10.4.1 Negotiating an Accommodation with the Client
§ 10.4.2 Withdrawing from Representation
§ 10.4.3 Enforcing an Attorney’s Lien
§ 10.4.4 Fee Arbitration
§ 10.4.5 Suing Your Client
Chapter 11
The Disciplinary Process
§ 11.1 THE INVESTIGATIVE PROCESS
§ 11.1.1 Overview
§ 11.1.2 Perspective of the Players
§ 11.1.3 Initial Board of Bar Overseers Complaint
§ 11.1.4 Publicity, Public Access, and Media Access
§ 11.1.5 Response to the Complaint
(a) Right Against Self-Incrimination
(b) Effect of the Answer
(c) Closing or Dismissal
(d) Communication with Bar Counsel by Reviewing Board Members
(e) Diversion Programs
(f) Sufficient Cause
Bar Counsel’s Recommendation
Transmission of File
Standard of Review
Action by Reviewing Board Member
Role of General Counsel’s Staff in Reviewing Bar Counsel’s Recommendation to Reviewing Board Member for Formal Prosecution
§ 11.1.6 Deferment
§ 11.1.7 Expunction
§ 11.1.8 Withdrawal of the Complaint
§ 11.2 DISCIPLINARY PROCESS AS LITIGATION
§ 11.2.1 Possible Dispositions
(a) Private Discipline—Admonition
(b) Public Reprimand
(c) Formal Discipline
§ 11.2.2 Beginning Formal Proceedings
(a) Initial Procedures in General
(b) Redaction of Personal Identifying Data
(c) Discovery
Interview
Subpoena Power
Depositions
Other Pretrial Discovery
(d) Prosecuting the Petition
(e) Proceedings Before the Hearing Committee or Special Hearing Officer
(f) Relevance and Admissibility of Expert Testimony
(g) Collateral Estoppel
(h) Review and Appeal
(i) Proceedings Before the Court
Information
Supreme Judicial Court Rule Governing Appeals in Bar Discipline Cases
Temporary Suspension
Disability Inactive Status
Resignations
Reciprocal Discipline
Disbarment by Consent
Convictions
Commissioners
Costs and Restitution
Clients’ Security Board
(j) Reinstatement
(k) Clearance Letters
EXHIBIT 11A—Diversion Program Policy Statement
EXHIBIT 11B—Provisions on Reinstatement (Supreme Judicial Court Rule 4:01, § 18)
EXHIBIT 11C—Board of Bar Overseers Policies and Practices
Chapter 12
Ethics Issues for Business Lawyers
§ 12.1 MULTIPARTY REPRESENTATION
§ 12.1.1 Who Is the Client?
(a) Corporations
(b) Partnerships
(c) Trade Associations, Including Unions
(d) ESOP Transactions
§ 12.2 CONFLICTS OF INTEREST
§ 12.2.1 Corporation/Investors
§ 12.2.2 Corporation/Other Individuals
§ 12.2.3 Successive Representations
§ 12.2.4 Intracorporate Disputes and Splitups or Spinoffs
§ 12.2.5 Intrafamily Transactions
§ 12.2.6 Bank Loans
§ 12.3 ZEALOUS REPRESENTATION OF BUSINESS INTERESTS
§ 12.3.1 Preservation of Client Confidences
§ 12.3.2 Unrepresented Parties
§ 12.3.3 Audit Inquiries
§ 12.3.4 Legal Ethics and Securities Laws
§ 12.4 ATTORNEY-CLIENT CONFLICTS
§ 12.4.1 Lawyer as Director of Corporate Client
§ 12.4.2 Investing in a Client’s Business
§ 12.4.3 Getting Paid
§ 12.4.4 Failure to Follow Legal Advice
§ 12.5 IN-HOUSE CORPORATE COUNSEL
§ 12.5.1 Attorney-Client Privilege
§ 12.5.2 Business Decisions Versus Legal Advice
§ 12.5.3 Competence and Specialization
§ 12.6 MULTISTATE TRANSACTIONS
§ 12.7 DATA SECURITY
§ 12.8 FURTHER GUIDANCE
EXHIBIT 12A—Letter Agreement Regarding Consent to Multiple Representation of Initial Investors in Organizing a Corporation and Acting as Its General Counsel
EXHIBIT 12B—Letter Agreement Regarding Lawyer Serving on Board of Directors
EXHIBIT 12C—Consent to Representation When General Counsel Is a Shareholder or Is Investing in the Corporation on Formation
Chapter 13
Ethical Issues in Insurance Defense
§ 13.1 INTRODUCTION
§ 13.2 WHOM THE LAWYER REPRESENTS; SCOPE OF REPRESENTATION
§ 13.3 SOME RECURRING PROBLEMS INVOLVING CONFLICT OF INTEREST
§ 13.3.1 Prohibition on Conducting Defense to Avoid Coverage for the Insured
(a) Prohibition on Improperly Taking Insured’s Deposition
(b) Refusal of Plaintiff’s Offer of Continuance
(c) Impeachment of Own Client
(d) Stipulation Against Interest of Insured
(e) Obligations Where the Attorney Has Responsibility for Respecting Settlement
(f) Must Preserve Insured’s Option to Avoid Criminal Prosecution
§ 13.3.2 Right of Insurer to Control Defense Versus Obligation to Represent Client Zealously and Competently
§ 13.3.3 Misuse of Confidential Information from Insured
§ 13.3.4 Conflicts Between Multiple Parties
§ 13.3.5 Conflicts in Subrogation Cases
§ 13.3.6 Representation of Interest of Insured in Counterclaim
§ 13.3.7 Use of Special Questions in Litigation Against the Insured
§ 13.4 CONCLUSION
Chapter 14
Ethical Issues for Personal Injury Lawyers*
§ 14.1 SOLICITING CLIENTS
§ 14.2 ADVERTISING
§ 14.3 CLIENT INTAKE
§ 14.4 INVESTIGATING THE CASE
§ 14.5 RULE 11 AND FRIVOLOUS ACTIONS
§ 14.6 CONTINGENT FEES
§ 14.7 SETTLEMENT ISSUES
§ 14.8 CONCLUSION
EXHIBIT 14A—Mass. R. Civ. P. 1.5(f), Form A
EXHIBIT 14B—Mass. R. Civ. P. 1.5(f), Form B*
EXHIBIT 14C—Contingent Fee Letter
Chapter 15
Ethics Issues in Intellectual Property
§ 15.1 INTRODUCTION
§ 15.2 ADMISSION TO PRACTICE AND GOVERNING RULES
§ 15.3 CANDOR
§ 15.4 COMPETENCE
§ 15.5 CONFLICT
§ 15.6 PRIVILEGE AND CONFIDENTIALITY
§ 15.7 DECORUM AND PROPER ADVOCACY
Chapter 16
Ethics in Estate Planning
§ 16.1 COMPETENCY OF CLIENT
§ 16.2 COMPETENCY OF COUNSEL
§ 16.3 COMPETENCY IN MULTIJURISDICTIONAL ESTATE PLANNING WITHIN THE UNITED STATES
§ 16.4 COMPETENCY IN INTERNATIONAL ESTATE PLANNING
§ 16.5 ATTORNEYS NAMED AS BENEFICIARIES IN WILLS THAT THEY DRAFT
§ 16.6 DESIGNATION OF ATTORNEY-DRAFTSPERSON AS PERSONAL REPRESENTATIVE OR TRUSTEE
§ 16.7 DRAFTSPERSON AS ATTORNEY IN TESTATOR’S WILL
§ 16.8 ATTORNEY ACTING AS BOTH ATTORNEY AND PERSONAL REPRESENTATIVE
§ 16.9 THE CORPORATE FIDUCIARY’S POLICY OF NAMING THE DRAFTSPERSON AS ATTORNEY FOR THE ESTATE
§ 16.10 ATTORNEY’S SAFEKEEPING OF CLIENT WILLS
§ 16.11 DUTY OF ATTORNEY WITH RESPECT TO A CLIENT’S FILE
§ 16.12 DUTY OF ATTORNEY TO INFORM CLIENT OF CHANGES IN THE LAW
§ 16.13 FAILURE TO USE SELF-PROVING WILLS
§ 16.14 NAMING ATTORNEY’S CHARITY IN TESTATOR’S WILL
§ 16.15 RECOMMENDING A CORPORATE FIDUCIARY TO YOUR CLIENT
§ 16.16 CONFLICT OF INTEREST—SPOUSES
§ 16.17 CONFLICT OF INTEREST—PARENT AND CHILD
§ 16.18 CONFLICT OF INTEREST—BUSINESS PARTNERS
§ 16.19 ACCEPTING PAYMENT FROM ANOTHER FAMILY MEMBER FOR THE PREPARATION OF A TRUST OR A WILL
§ 16.20 POSTMORTEM ESTATE PLANNING
§ 16.20.1 Administration Expenses
§ 16.20.2 Alternate Valuation Date
§ 16.20.3 Timing of Distributions
§ 16.20.4 Excess Distributions in Final Year of Estate
§ 16.20.5 Qualified Terminal Interest Property Elections
§ 16.21 TAX CLAUSE IN WILL OR TRUST
§ 16.22 DUTY TO REPORT FIDUCIARY MISCONDUCT
§ 16.23 ELDER ABUSE
§ 16.24 ATTORNEY RETAINED BY FIDUCIARY FOR PERSON WITH DIMINISHED CAPACITY
§ 16.25 ATTORNEY PETITIONING FOR APPOINTMENT OF GUARDIAN FOR EXISTING CLIENT
§ 16.26 CHANGES TO THE MASSACHUSETTS RULES OF PROFESSIONAL CONDUCT EFFECTIVE JULY 1, 2015
§ 16.26.1 Informed Consent
§ 16.26.2 Communications with a Client
§ 16.26.3 Solicitation of Gifts
§ 16.26.4 Fees
§ 16.27 FURTHER READING
§ 16.27.1 ACTEC Publications
§ 16.27.2 ABA Real Property, Trust and Estate Law Section Publications
§ 16.27.3 National Academy of Elder Law Attorneys Publications
§ 16.27.4 BNA Portfolios
§ 16.27.5 The Massachusetts Rules of Professional Responsibility
EXHIBIT 16A—Sample Physician Statement (Client Competent)
EXHIBIT 16B—Sample Physician Statement (Client Not Competent)
EXHIBIT 16C—Sample Engagement Letter for Spouses (Joint Representation)
EXHIBIT 16D—Sample Withdrawal Letter When a Joint Representation Fails
EXHIBIT 16E—Checklist for Joint Representation
EXHIBIT 16F—Guide for Representing Members of the Same Family
EXHIBIT 16G— Sample Conflict Waiver
EXHIBIT 16H—Excerpt from “Representing Clients with Diminished Capacity,” by Constance V. Vecchione, Esq.
Chapter 17
Ethical Issues for Divorce and Family Lawyers
§ 17.1 OVERVIEW
§ 17.2 CONFLICTS OF INTEREST
§ 17.2.1 Prohibition Against Representation of Both Husband and Wife
(a) Agreement Favoring Wife
(b) Agreement Favoring Husband
§ 17.2.2 Prior Representation of One or Both Parties
§ 17.2.3 Representation of Closely Held Corporation and Spouse-Shareholder
(a) Who Is Your Client?
(b) Corporate Counsel as Witness
§ 17.3 THE ATTORNEY-CLIENT RELATIONSHIP
§ 17.3.1 When Does a Person Become a Client?
§ 17.3.2 Sexual Relationships with Clients
§ 17.3.3 Social Relationships with Clients
§ 17.4 COMMUNICATIONS WITH CLIENTS
§ 17.5 FEE ARRANGEMENTS
§ 17.5.1 Contingent Fee Not Permissible in Divorce Actions
§ 17.5.2 Mortgages to Secure Attorney Fees
§ 17.5.3 Flat-Fee Representation Agreements
§ 17.6 DUTIES TO CLIENTS
§ 17.6.1 Helping the Client Save the Marriage
§ 17.6.2 Representing Children and People with Mental or Emotional Disabilities
§ 17.6.3 Domestic Torts
§ 17.6.4 Fees
§ 17.6.5 Settlement and Securing the Financial Distribution: The Lesson of Meyer v. Wagner
§ 17.7 DUTIES OF COUNSEL TO THE COURT
§ 17.7.1 Financial Statements
§ 17.7.2 Withholding Discovery
§ 17.7.3 Use of the Criminal Process to Affect Civil Litigation: Accusations of Child Abuse and Sexual Abuse
§ 17.8 DUTIES TO THIRD PARTIES
§ 17.8.1 Communications with Opposing Spouse
§ 17.8.2 Duties to Children in Divorce
§ 17.9 MEDIATION
Chapter 18
Ethical Issues for Government Lawyers
§ 18.1 INTRODUCTION
§ 18.2 IDENTIFYING THE CLIENT
§ 18.3 CONFLICTS OF INTEREST
§ 18.3.1 Dispute Between Two Clients
§ 18.3.2 Joint Representation of Individual Employee and Agency, Including 42 U.S.C. § 1983 Actions
§ 18.3.3 Massachusetts Statutes Affecting Conflicts
§ 18.3.4 Conflicts for Former Government Lawyers
§ 18.4 WHISTLE-BLOWING, CONFIDENTIAL INFORMATION, AND DIFFERENT STANDARDS FOR GOVERNMENT LAWYERS
§ 18.5 THE PUBLIC RECORDS STATUTE, THE WORK PRODUCT DOCTRINE, AND ATTORNEY-CLIENT PRIVILEGE
§ 18.6 OTHER SIGNIFICANT RULES FOR GOVERNMENT LAWYERS, INCLUDING PROSECUTORS
§ 18.6.1 Mass. R. Prof. C. 3.4 and 3.8, Fairness to Opposing Party and Counsel and Special Responsibilities of a Prosecutor
§ 18.6.2 Mass. R. Prof. C. 4.2, Communication with Person Represented by Counsel
§ 18.6.3 Mass. R. Prof. C. 1.1 (Competence) Applied to Protection of Sensitive Data Held by Government
§ 18.6.4 Mass. R. Prof. C. 5.1 and 5.2, Responsibilities of Supervisory Lawyers and Subordinate Lawyers
§ 18.6.5 Mass. R. Prof. C. 8.3, Reporting Professional Misconduct
§ 18.7 GOVERNMENT LAWYERS AS POLICY MAKERS AND THE ATTORNEY GENERAL AS CHIEF LAW OFFICER
Chapter 19
Ethical Issues for Real Estate Lawyers
§ 19.1 INTRODUCTION
§ 19.2 MISREPRESENTATIONS
§ 19.3 NUTS AND BOLTS OF PRACTICE AND DOING BUSINESS
§ 19.3.1 Advertising
§ 19.3.2 Fees
§ 19.4 CLIENT CONFIDENCES
§ 19.5 UNAUTHORIZED PRACTICE OF LAW
§ 19.6 CONFLICTS
§ 19.6.1 Conflict Checks
§ 19.6.2 Business Transactions
§ 19.6.3 Personal Interests
§ 19.6.4 Conflicts Between Clients
§ 19.6.5 Mail-Away Closings
§ 19.6.6 Representing Organizations
§ 19.6.7 Representing Borrower and Lender
§ 19.6.8 Duty of Loyalty
§ 19.7 COMPETENCE
§ 19.8 THE LIMITS OF ZEALOUS ADVOCACY
§ 19.9 EX PARTE COMMUNICATION WITH PARTIES AND TRIBUNAL
§ 19.10 CONSTRAINTS ON INTERACTIONS WITH AND BY PUBLIC LAWYERS
§ 19.11 CLIENT FUNDS AND OTHER MONEY MATTERS
§ 19.11.1 Introduction
§ 19.11.2 Conveyancing Account
§ 19.11.3 Escrow Accounts
§ 19.11.4 Account Maintenance and Recordkeeping
§ 19.11.5 Good Funds
§ 19.11.6 Dishonored Check Notification
§ 19.11.7 Excessive Delegation
§ 19.12 WITHDRAWAL FROM EMPLOYMENT
§ 19.13 CONCLUSION
Chapter 20
Ethical Issues for Civil Litigators
§ 20.1 OBLIGATIONS IN PLEADINGS AND DISCOVERY
§ 20.1.1 Frivolous or Bad-Faith Claims
(a) Massachusetts
Disciplinary Action for Willful Violation
Liability for Costs
(b) Federal
Reasonable Inquiry Requirement
Liability for Costs
§ 20.1.2 Liability for Libel and Slander in Litigation Proceedings
§ 20.1.3 Duty to Supplement or Amend Discovery Responses
§ 20.1.4 Obligations to Respond in Good Faith to Discovery Requests
§ 20.2 OBLIGATIONS WITH RESPECT TO WITNESSES (EXCEPT PERJURY)
§ 20.2.1 Attorney Cannot Serve as a Witness—Rule 3.7
§ 20.2.2 Communications with Current and Former Employees of the Other Party—Rule 4.2
(a) Rule 4.2
(b) Contact with Current Employees
(c) Former Employees
(d) Court-Authorized Communications
(e) Authorization by Private Counsel
(f) Authorization by Law
(g) Protective Orders
(h) Compliance
§ 20.2.3 Payment of Witnesses Contingent on Testimony or Outcome of Case—Rule 3.4(g)
§ 20.3 OBLIGATIONS WHEN BINDING CLIENT
§ 20.3.1 Actions During Pleadings and Trial Proceedings
§ 20.3.2 Settlement Authority
§ 20.3.3 Duties as Cocounsel
§ 20.4 OBLIGATION WHEN PRESENTING EVIDENCE AND ARGUING
§ 20.4.1 Duty to Refrain from Irrelevant or Degrading Questions
§ 20.4.2 Duty to Refrain from Asserting Personal Knowledge of the Facts in Issue
§ 20.4.3 Duty to Exclude Personal Opinion
§ 20.5 OBLIGATIONS TO THE COURT
§ 20.5.1 General Principles
§ 20.5.2 Contempt of Court
Chapter 21
Criminal Trial Practice
§ 21.1 INTRODUCTION
§ 21.2 CONFIDENCES AND SECRETS
§ 21.2.1 General Principles
§ 21.2.2 Problem Areas
(a) Deteriorating Relationship with Client
(b) Meeting with Client
(c) Bail Arguments and Communication with Other Parties
(d) Steps to Preserve Confidences and Secrets
(e) Probation Record
§ 21.3 CLIENT PERJURY
§ 21.4 COMPETENCE
§ 21.5 TRUTHFULNESS
§ 21.6 WHOSE DECISION IS IT?
§ 21.7 DEALING WITH WITNESSES
§ 21.7.1 In General
§ 21.7.2 At Trial
§ 21.8 EVIDENCE IN ATTORNEY’S POSSESSION
§ 21.9 CONFLICTS
§ 21.9.1 Codefendants
§ 21.9.2 Conflicting Interests of Clients
§ 21.9.3 Present or Former Client as Witness
§ 21.9.4 Lawyer as Witness: Known at Beginning of Representation
§ 21.9.5 Attorney Becomes Witness During Representation
§ 21.9.6 General Conflict
§ 21.9.7 Attorneys Who Are Associated in Practice
§ 21.9.8 Attorneys and the Media
§ 21.10 CONDUCT AT TRIAL
§ 21.10.1 Relationship with Court
§ 21.10.2 Closing Argument
§ 21.10.3 Relationships with Jurors
§ 21.11 MISCELLANEOUS
EXHIBIT 21A–Resources
Chapter 22
Ethics, Risk, and Malpractice Avoidance
§ 22.1 INTRODUCTION—THE BRIDGE FROM THE 20TH CENTURY
§ 22.1.1 Prospective Clients
§ 22.1.2 Conflicts
§ 22.1.3 Nonengagement
§ 22.1.4 Fees and Bills
§ 22.1.5 Representations, Planning, and Doing
§ 22.1.6 Getting In and Out
RISK AVOIDANCE AND OTHER PREVENTIVE ACTIONS
§ 22.2.1 How Risk-Prone Are You?
§ 22.2.2 Five Steps to Improving Client Relations and Reducing Legal Malpractice Claims (How Not to Get on Your Client’s Bad Side—or on the Wrong Side of a Malpractice Suit)
(a) Stop Talking and Start Listening
(b) Nothing Says You Care Like Paper
(c) Get Phone Smart
(d) Interruptions Send the Wrong Message
(e) Don’t Sugarcoat It
(f) Just Do It
§ 22.2.3 Avoid Malpractice Claims by Screening Undesirable Clients
§ 22.2.4 One Common Risk—from Start to Finish—Conflicts and Confidentiality
(a) Monty Hall Lives! Oops!—We’re on Both Sides of the Same Matter—the Use of Client Confidences
(b) How Did We Get Ourselves into This Mess—Shoot First and Ask Questions Later
(c) Are We In or Are We Out—What Use of Client Confidences Leads to Disqualification
Imputed Disqualification
(d) The Applicability and Use of “Screening” (f.k.a. “Chinese Walls”)
Conflicts in Litigation
(e) How Do We Get Out of This Mess—to Avoid Disqualification, Do We Seek Consent—or Can We?
(f) Now, How Do We Get Out of This Mess—If We Are Able to Obtain Informed Consent, Is It Obvious That We Can Represent the Client’s Interests?
(g) How Do We Avoid the Quicksand the Second Time—the Use of Conflicts Checks and Other Management Tools, Such as Supervisors
First Steps
Next: Crisis Management After the Risk Has Arisen
1. Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers
2. Rule 5.2: Responsibilities of a Subordinate Lawyer
3. Rule 5.3: Responsibilities Regarding Nonlawyer Assistance
§ 22.3 ADDITIONAL RESOURCES
§ 22.4 CONCLUSION
§ 22.4.1 Risk Management: 49 New Year’s Resolutions for Lawyers
§ 22.4.2 Ten New Year’s Resolutions for Lawyers
EXHIBIT 22A—Multiple Representations Create Conflict Hazards
EXHIBIT 22B—
EXHIBIT 22C—First American Title Insurance Company Agency Review Summary
EXHIBIT 22D—
EXHIBIT 22E—Loss Prevention Self-Audit
EXHIBIT 22F—Ten Ways to Decrease Stress . . . and Avoid Legal Malpractice
EXHIBIT 22G—Prospective Client Checklist
EXHIBIT 22H—Documentation Checklist
EXHIBIT 22I—Office Telephone Procedures Checklist
EXHIBIT 22J—Confidentiality Checklist
EXHIBIT 22K—Conflicts Checklist
EXHIBIT 22L—Sample Conflicts Check Form
EXHIBIT 22M—Outline of Massachusetts Legal Malpractice Law
EXHIBIT 22N—Twenty-four Top Rules of the Road
EXHIBIT 22O—Discipline and Malpractice Standards: When Rules Catch Up with Reality (“World Series” Edition)
EXHIBIT 22P—Basic Law Office Requirements Checklist
EXHIBIT 22Q—You Mail, I Mail, We All Send E-mail
EXHIBIT 22R—“In-House” and “Out-House”
EXHIBIT 22S—Sample Client Fee Agreement
EXHIBIT 22T—Sample Records Management Policy
Chapter 23
Researching Ethical Issues
§ 23.1 THE MASSACHUSETTS RULES OF PROFESSIONAL CONDUCT
§ 23.1.1 Overview
§ 23.1.2 Understanding and Interpreting the Massachusetts Rules
§ 23.2 RESEARCHING AND UNDERSTANDING ATTORNEY DISCIPLINE IN MASSACHUSETTS
§ 23.3 GOVERNANCE OF FEDERAL COURT PRACTICE IN MASSACHUSETTS
§ 23.4 IMPORTANCE OF “OTHER” SUBSTANTIVE LAW
§ 23.4.1 General Principles
§ 23.4.2 American Law Institute’s Restatement of the Law (Third), The Law Governing Lawyers
§ 23.4.3 Other Regulation of Lawyering Activity
§ 23.5 SOURCES OF CONSULTATION
§ 23.5.1 MBA Committee on Professional Ethics
§ 23.5.2 BBA Ethics Committee
§ 23.5.3 Office of the Bar Counsel
§ 23.5.4 Other Legal Ethics Resources
§ 23.6 PROFESSIONAL ORGANIZATIONS AND AGENCY REGULATION
§ 23.7 ADDITIONAL ABA STANDARDS