New Rules Rule: BBA Participates in MRPC Comment and Review Process

It has been a busy time for rule-related news from the SJC.  First, the SJC posted proposed revisions to the Code of Judicial Conduct, requesting comment from the bar.  Then, only a few days later, the SJC posted the revised Massachusetts Rules of Professional Conduct online.  The full impacts of both remain to be seen, but we are pleased that the SJC has involved the bar in their procedures.

The Code of Judicial Conduct changes, from an institutional perspective, appear to ease some of the restrictions on judicial interaction with attorneys and bar associations.  For example, a number of proposed revisions remove limits on judicial participation at bar association events.  The BBA encourages anyone who is interested to examine the new rules and comment as they see fit.  We plan to do the same.  Comments are due by Friday May 22 and should be sent to the Committee to Study the Code of Judicial Conduct at CodeJudicialConductComm@sjc.state.ma.us. The comments received will be made available to the public, and the Committee will make its recommendations to the Justices of the Supreme Judicial Court following receipt and review of public comments.

The revised rules of professional conduct are the culmination of months of consideration, revision, and even oral argument that began more than a year ago.  In July 2013, with the SJC’s permission, the SJC Standing Advisory Committee on the Rules of Professional Conduct (“SJC Committee”) published its proposed rules for comment.

Many of the proposed changes were based on the model rules proposed by the ABA Ethics 2000 Commission and the ABA Commission on Ethics 20/20.  The BBA’s Ethics Committee and Bankruptcy Law Section both carefully reviewed the rules and composed six comments, which were submitted to the SJC Committee in February 2014.  Following careful review of these and other comments, the SJC Committee submitted revised proposed rules to the Justices of the SJC on May 14, 2014.

In October, the SJC Justices announced their decisions regarding some rules and requested oral argument on certain issues for some others in December.  Ever since then, we have been eagerly awaiting their final decisions.

We were particularly pleased to see some revisions in-line with the BBA’s comments.  Most notably, the BBA’s Ethics Committee encouraged adoption of Model Rule 3.5, lifting the old MRPC prohibition on all juror contact, even after the jury was discharged.  The new adopted rule follows this recommendation with significantly fewer limits on juror communication after discharge, barring contact only if the communication is prohibited by law or court order, the juror has made known to the lawyer a desire not to communicate, or the communication involves misrepresentation, coercion, duress, or harassment.

Another notable rule change in keeping with recommendations from the BBA’s Ethics Committee was incorporation of the ABA Model Rule into MRPC 7.2, deleting the requirement to retain advertising materials.  The old MRPC required lawyers to keep a copy or recording of all advertisements for two years after its last dissemination.  In their meetings, the Ethics Committee discussed the anachronistic elements of the old rule, and the challenges facing lawyers and law firms with web sites.  The definition of lawyer advertising materials is broad enough to include web and social media communications, making it almost impossible to accurately keep such records.  The new rule is less burdensome and easier to follow.

Finally, the final rules reflect the Ethics Committee’s recommendation to include the “catch-all” category in MRPC 8.4(h), which states that it is professional misconduct for a lawyer to “engage in any other conduct that adversely reflects on his or her fitness to practice law.”  The Standing Advisory Committee had proposed deleting that language.  While the Ethics Committee expressed concerns about the vagueness of this standard and the potential for its inconsistent application, Committee members were more troubled by the thought that egregious attorney conduct that was not a crime or fraud and not otherwise in violation of a provision in Rule 8.4 would go undisciplined because it was not specifically included in the definition of professional misconduct.  Their comments also noted that the Committee was unaware of any reported abuse of this provision, and that the facts of reported cases under this provision merited discipline.

Because of the voluminous rules changes and the complexity of the MRPC, we look forward to a program hosted by our Ethics Committee in the coming months explaining the new rules and their implications for practitioners.  We also expect to take part in a similarly comprehensive and successful comment and review process in the near future for the proposed revisions to the CJC.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association