Posts Categorized: Ethics Committee

SJC Case Review Part II – Post Verdict Juror Contact

Just two days after it released Abrano, the SJC released its holding in Commonwealth v. Moore.  The case was before the SJC on a report of questions submitted by Superior Court Judge Jeffrey Locke as to whether Rule 3.5 of the MRPC as amended and effective July 1, 2015, overruled Commonwealth v. Fidler, 377 Mass. 192, 203-04 (1979).  The case facts revolve around defendant Dwayne Moore, who was convicted by a jury on four counts of first-degree murder, home invasion, and armed robbery in Superior Court on December 17, 2012.  On November 21, 2013, the defendant filed a direct appeal, and on July 14, 2015, an attorney from the firm representing defendant Moore sent notice to the Assistant District Attorney, which was received on July 17, that he would be contacting the jurors, and included a copy of the letter she would be sending them.  On July 21, 2015, the defendant’s appellate attorneys sent the letter to the discharged jurors seeking information about their jury service.

On July 23, the Commonwealth filed an emergency motion for judicial intervention to prohibit the jury inquiry and the defendant filed an opposition.  On July 24, Judge Locke held a hearing and ruled from the bench that he would report questions to an appellate court.

Prior to July 1, 2015, MRPC Rule 3.5 stated:

A lawyer shall not:

(d) after discharge of the jury from further consideration of a case with which the lawyer was connected, initiate any communication with a member of the jury without leave of court granted for good cause shown. If a juror initiates a communication with such a lawyer, directly or indirectly, the lawyer may respond provided that the lawyer shall not ask questions of or make comments to a member of that jury that are intended only to harass or embarrass the juror or to influence his or her actions in future jury service. In no circumstances shall such a lawyer inquire of a juror concerning the jury’s deliberation processes.

Effective July 1, 2015, Mass. R. Prof. C. 3.5 was revised, and now states:

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

(c) communicate with a juror or prospective juror after discharge of the jury if:

(1) the communication is prohibited by law or court order;

(2) the juror has made known to the lawyer, either directly or through communications with the judge or otherwise, a desire not to communicate with the lawyer; or

(3) the communication involves misrepresentation, coercion, duress or harassment; or

(d) engage in conduct intended to disrupt a tribunal.

The Fidler case states that post-verdict interviews of jurors “should only be initiated if the court finds some suggestion that there were extraneous matters in the jury’s deliberation.”  Since Fidler, the common law has developed to give judges discretion to determine whether post-verdict juror inquiry is warranted – generally requiring “some showing of illegal or prejudicial intrusion into the jury process.”

Judge Locke analyzed whether the SJC’s adoption of the revised rule would overrule the common law regime.  He examined the ABA Model Rules on which the revised MRPC rule was based as well as comments on the proposed revision from the Committee for Public Counsel Services (CPCS) and the Massachusetts Academy of Trial Attorneys (MATA).  He noted that the CPCS and MATA comments indicated that the SJC was “at least aware that one of the purposes for amending Rule 3.5 was to allow attorneys to contact discharged jurors to determine whether they were exposed to extraneous influences during trial.”  He then turned to the BBA Ethics Committee’s comments as evidence that the SJC had notice that simply adopting the revised Rule 3.5 might not be enough to supersede the common law.

Judge Locke reported the following questions after the hearing on July 24:

  1. In revising Rule 3.5 of the Massachusetts Rules of Professional Conduct to permit attorney originated communications with discharged jurors, did the Supreme Judicial Court implicitly overrule the prohibition against attorney originated communications with jurors as set forth in Commonwealth v. Fidler, 377 Mass. 192, 203-204 (1979)?
  2. In generally adopting the American Bar Association’s Model Rule 3.5 containing the language “prohibited by law,” did the Supreme Judicial Court intend Commonwealth v. Fidler to be continuing precedent?
  3. If the answer to question two is “no,” then what types of contact with discharged jurors by an attorney, if any, are “prohibited by law” under Rule 3.5 (c)(1)?
  4. If the answer to question one is “yes,” and the answer to question two is “no,” does revised Rule 3.5 permit attorneys to communicate with jurors who were discharged prior to July 1, 2015?
  5. If the answer to question four is “yes,” in light of Commonwealth v. Fidler, are attorneys required to seek approval from the court prior to contacting jurors?

On July 31, the Supreme Judicial Court (SJC) took the case sua sponte.  On October 22, the SJC released a request for amici raising the following issues:

Whether the 2015 amendment to S.J.C. Rule 3:07 (Rules of Professional Conduct), Rule 3.5 – which provides in relevant part that “[a] lawyer shall not . . . communicate with a juror . . . after discharge of the jury if . . . the communication is prohibited by law or court order” – effectively superseded the holding in Commonwealth v. Fidler, 377 Mass. 192, 201-204 (1979), that counsel may not contact jurors after a verdict is rendered except as directed and supervised by the judge; if so, whether the rule now permits attorneys to initiate contact with jurors who were discharged prior to the effective date of the amendment.

Oral Argument

On February 10, 2016, the SJC held oral argument in this case.  Teresa Anderson argued for the Commonwealth that the Court should not overturn the rule laid out in Fidler.  Instead, she claimed, the only advisable change to the pre-2015 version of Rule 3.5 limiting postverdict juror would be to remove the requirement of a showing of “extraneous influence” as a standard to be met before an attorney could ask a court’s permission to contact jurors.  She justified her reading of the current Rule 3.5 because of its language in subsection (c)(1), prohibiting juror contact if “the communication is prohibited by law or court order,” here by the common law as explained in Fidler.

Attorney for the appellant, Chauncey Wood, argued that the Court had the power to overturn its own prior holdings in adopting the revised Rule 3.5.  When asked if he felt there should be any limits on what a lawyer can do in contacting jurors, he quoted from the rule, including that the communication could not involve “misrepresentation, coercion, duress or harassment,” and gave opposing views on whether attorneys could discuss juror deliberations.  He noted that historically juror deliberations were considered basically “sacrosanct” in Massachusetts legal history, but also explained that the Massachusetts Association of Criminal Defense Lawyers (MACDL) amicus brief made a strong argument that the old Rule 3.5 explicitly barred discussing juror deliberations, while the new rule was silent on the issue, leaving the door open.

Wood also spoke on application of the rule, pushing for a “short and sweet” instruction to jurors, retroactive application of the new rule, and certain safeguards such as giving notice to the opposing party, and a recommendation that contact be in writing while acknowledging that other forms of communication may be better suited in certain situations and should be permissible with judicial oversight.

SJC Decision

On June 16, the SJC released its decision, holding that attorneys can have unsupervised postverdict contact with jurors, without special court permission, but with some limits – both those contained in the rule and some from the common law.  To this end, the new Rule 3.5 operates in tandem with Fidler, as argued by Attorney Wood, which provides the common-law principles barring inquiry into the contents of jury deliberations and thought processes of jurors, and the impeachment of jury verdicts based on information that might be gained from such inquiry.  The Court left open the possibility of future restrictions on the rule, but adopted a wait-and-see approach since the rule had been in operation for less than two-years.

On the question of rule application, the Court held that the rule would apply only prospectively from the July 1, 2015, effective date but also to cases in which the jurors were discharged before the effective date if the case was on appeal as of that date or the appeal period had not run.

Finally, the Court offered guidelines for the use of Rule 3.5(c).  In brief they are:

  1. A trial judge will give the jury instructions regarding both their rights and the rights of the attorneys at the request of any party. The opinion includes a sample jury instruction.
  2. An attorney initiating postverdict contact must send prior notice of their intent to the opposing party or parties five business days before contacting a juror regardless of the method of communication. The notice must include a description of the proposed manner and substance of the contact as well as a copy of any letter or other written communication the attorney intends to send.  The preferred method of juror contact is via letter, and should include a statement that the juror may decline any contact with the attorney or terminate contact once initiated.
  3. An attorney wishing to secure an affidavit from the juror concerning alleged extraneous influence on the jury deliberation process may do so without seeking or obtaining prior court approval, but the affidavit must focus on extraneous influence and not on the substance of the jury’s deliberations or the individual or collective thought processes of the juror or the jury as a whole.

In an appendix to the decision, the SJC included a suggested jury instruction.  It begins by stressing to jurors that it is their choice at any time whether or not they want to speak to attorneys.  Next, it prohibits jurors from discussing the substance or content of the jury’s deliberations with attorneys, except to tell an attorney if a juror provided outside information about the case or parties that was not contained in presented evidence.  The instruction goes on to inform jurors wishing to avoid attorney contact that they can do so by telling the judge or a court officer.  Finally, the instruction requests that jurors contact the court if an attorney persists in requests to discuss the case over their objection and/or becomes critical of the juror’s service.

We are interested to see how practice will evolve with this ruling and whether the SJC will end up revisiting it either in future cases or rule changes.  We look forward to keeping you posted on these issues.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Year in Review: BBA Comments

As you have likely gathered if you’re a regular reader of this blog, the BBA had a remarkably productive year on the policy front.  We’ve recently been touting the work of our Amicus Committee, and look forward to following up with you about a couple of cases with oral argument either recently heard (Fisher v. University of Texas at Austin II in the US Supreme Court on December 9) or fast approaching  (Commonwealth v. Wade in the SJC on January 11).  However, this post is devoted to our Sections and all the comments they submitted to various court working groups and committees in 2015.

For those of you unfamiliar with this process, the courts at any time have various working groups and standing committees considering changes to various rules of practice and procedure.  When these groups compose a draft rule, they generally post the proposed revisions online and invite comment from interested parties.  We know from experience that they appreciate our efforts to gather practitioners’ opinions and take them very seriously, so the BBA works with all its Sections to solicit and facilitate their comments and sends them to the courts on behalf of the Sections.

It is important to note that the BBA itself often does not take a position in these instances.  The comment process is an opportunity for members of the bar to be heard and we want to make sure that the court can benefit from all the differing points of view on an issue.  Therefore, although each submission is approved by the BBA Council, informal Section comments do not receive as thorough a vetting as full BBA policy positions, because they do not require a general consensus of the bar or continued BBA advocacy.

Here are some of this year’s highlights:

  1. That an amended jury instruction is appropriate and the provisional instruction generally assists jurors in considering eyewitness identification issues
  2. That the proposed instruction is appropriately based on five generally accepted principles regarding eyewitness identification

Their comments also included a number of items on which there was no consensus, ranging from broad policy issues to specific language suggestions.

In November, the SJC released its new jury instruction on eyewitness evidence, which will be given “upon request of a party, before opening statement or immediately before or after the testimony of an identifying witness.”  The Justices noted that the instruction will need to evolve with new developments in the science of identification and requested that the Standing Committee on Eyewitness Identification continue to review the issue and recommend further changes as needed.  Here is the full statement from the court.

  • The BBA’s Ethics Committee, Delivery of Legal Services, and Litigation Sections also provided extensive comments on the proposed revised Code of Judicial Conduct.  The BBA itself provided comments as well, noting its support of Rule 3.7, encouraging judges to participate in legal, educational, religious, charitable, fraternal, or civic organizations, and Rule 2.6(A), giving judges guidance on their role in assisting self-represented litigants.  The Delivery of Legal Services Section also voiced support for Rule 2.6(A).  The Ethics Committee provided extensive comments on many of the rules — which the Litigation Section generally agreed with, adding a note that they hoped the expansion of judges’ ability to accept free or discounted legal services would result in a corresponding expansion of the public reporting requirement.

In September, the BBA also voiced its support for proposed amendments to SJC Rule 3:11, which provides a new role for the SJC in reviewing these judicial ethics issues.  The rule would give the SJC the new power to both issue Ethics Advisory opinions to clarify the meaning and application of and provision of the CJC and to expound upon provisions of the Code that are of broad interest and application.  It gives the SJC power to essentially serve as an appellate body for decisions by the Committee on Judicial Ethics (CJE), and extends the ability to request Ethics Advisories to any judge or lawyer, whereas only judges can request CJE opinions.

In late October, the SJC released the revised Code of Judicial Conduct and reported the adoption of the revised SJC Rule 3:11.  The code and rule will take effect January 1, 2016.  We were pleased to see that many of the Ethics Committee’s comments incorporated into the Code and the sections we supported were included without substantive changes.

The BBA’s Real Estate and Bankruptcy Law Sections both provided comments to the Trial Court.  The Real Estate Law Section was satisfied with the standing order as an appropriate measure to address unnecessary confusion in the litigation process.  The Bankruptcy Law Section was concerned that the proposed standing order did not provide a good-faith exception.  They discussed possible situations when it would be more beneficial to bypass the address verification process in order to expedite the matter and provided the Trial Court with a couple of possible language edits to achieve this goal, one for a show of cause and the other based on time.

The Trial Court approved the standing order in late June 2015, and it became effective October 1st.  The final version does not incorporate the changes proposed by the Bankruptcy Law Section.

  • In July, the Litigation and Real Estate Sections commented on the proposed BMC and District Court procedural amount change. The shift would increase the minimum qualifying amount for Superior Court cases from $25,000 to $50,000, an increase that roughly corresponds with inflation since the qualifying amount was last changed in 1986.  Both Sections were concerned about the implications of the change, especially with how the District Court and BMC could handle the attendant influx of additional civil cases.  They also considered alternative types of jurisdictional splits, based possibly on case complexity or subject matter.

Perhaps in response to these comments, the Court has put this issue on hold as it works out how best to implement this change.  As the Chief Justice explained in his State of the Judiciary address, “We have heard loud and clear the comments furnished by the MBA and BBA when we aired the proposal to increase the procedural limit in civil cases in the District Court and BMC from $25,000 to $50,000 … [O]nce [dedicated civil] sessions are up and running, and have demonstrated that they can efficiently handle these civil cases, then we will reopen the idea of increasing the procedural limit to $50,000.”

The BBA noted its support for the change, and expressed its hope that all involved personnel would be adequately trained and that the rules would be uniformly enforced by all DOC facilities.  The BBA also encouraged EOPSS to consider extending application of the rule to county correctional facilities as well to assure uniform proper treatment of attorneys at all correctional institutions.  The Criminal Law Section was also largely supportive, individual members shared some concerns, such as with the revised rules’ record-keeping requirements and the potential limits it would place on correction officers.

Shortly after sending our comments, we attended a hearing on the revised CMR, where individuals and organizations were given the opportunity to publicly voice some of their own concerns before a panel of EOPSS and DOC representatives.  Like the BBA’s comments, most groups were generally supportive, but also raised concerns.  Read more about the hearing here.

  • In September, our Criminal Law, Delivery of Legal Services, and Family Law Sections all commented on the proposed revised SJC Rule 1:24, which addresses personal identifying information in certain court filings and documents. The SJC Standing Advisory Committee on the Rules of Civil and Appellate Procedure drafted the new rule based on the nonbinding Supreme Judicial Court Interim Guidelines for the Protection of Personal Identifying Data in Publicly Accessible Court Documents that took effect in 2009.  The proposed new rule would apply in the trial and appellate courts and would govern documents filed in civil and criminal cases as well as documents issued by the courts.  It differed from the Interim Guidelines most significantly by authorizing a judge to impose sanctions for non-compliance.

The Comments are generally supportive of the revisions, though they express some concerns about the addition of sanctions and their potential impacts on criminal law.  In addition, consideration of these proposed amendments prompted a second round of discussions on the larger issue of online access to court records.  We anticipate the opportunity to comment on a forthcoming rule on this issue, and are eager to take part in the debate.

While the Ethics Committee was generally supportive of the change, their comments expressed some concern about the removal of the local-counsel piece.  Though the Massachusetts rule and notice to comment explanation seem concerned only with protection of the company using foreign counsel, the Ethics Committee noted that other parties to litigation as well as the courts could benefit from the requirement for consultation with local counsel.

  • This month, we are working on finalizing comments on proposed revisions to the Massachusetts Rules of Civil Procedure (MRCP), Rules 26(b) and 1. The revisions largely track those recently adopted in the federal rules of civil procedure to include reference to proportionality in discovery.  The goal appears to be streamlining discovery and assuring that costs are kept in proportion to the overall case.  Though our comments are not quite finalized, a sneak peak at their content reveals that though many practitioners feel that the changes are minor in nature and a number were supportive, others had concerns that they could result in increased discovery motions, thus having the opposite of their intended effect.

This conclusion was similar to the implications shared at our recent program on the changes to the federal rules.  The presentation materials from this program provide some more insight on the origins and development of this proportionality language.

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The presenters, BBA Council member Chris Morrison, Jones Day, Gregory Bombard, Duane Morris, James Berriman, Evidox, and Paula Bagger, Cooke Clancy & Gruenthal, LLP, seemed in agreement that while the changes to federal discovery Rule 26 could have some implications for practice, revisions to other sections would likely have larger implications.

Thanks to all the Sections and Committees for your work on these comments.  We will continue wrapping up the comments on MRCP Rules 26(b) and 1 and will keep you informed on how these and other feedback are incorporated by the Courts into their rules.  We look forward to continuing to be part of these sorts of discussions in the future and thank the courts and agencies for making this a thorough and inclusive process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Breaking Down the SJC Ruling in BBA Amicus Case Wong v. Luu

On Tuesday the SJC released its decision in Wong v. Luu, and we were gratified by the results.  As you may recall, our Amicus Committee filed a brief in this case that played a major role in oral argument.  As it turned out, it played a role in the final holding, too.  Although our brief is not cited, the SJC held, as we had advocated, that the trial judge did not have power to assess nearly $240,000 in sanctions against an attorney for his alleged role in breaking up a potential settlement agreement.  The case helps to clarify the sanctioning power of judges going forward.

How We Got Here

We first learned about this case at the end of 2014, after the SJC granted direct appellate review and issued a formal request for amicus briefs to address: (1) whether the Superior Court judge exceeded his authority by imposing the fine on the grounds that the sanctioned attorney had interfered with an emerging global settlement through his actions and (2) whether the judge erred in assessing sanctions without first conducting an evidentiary hearing, and without adherence to any existing standard.  Our Amicus Committee, chaired by Mark Fleming of WilmerHale, reviewed this request and gathered feedback from the BBA’s LitigationCivil Rights and Civil Liberties, and Bankruptcy Law Sections and Ethics Committee, as well as the parties involved in the case.  They ultimately decided to recommend filing a brief, concluding that the case raised serious concerns regarding the practice of law.

The case arises from two orders issued by a Superior Court Justice for sanctions of $239,928.40 against an attorney in a case involving the attempted sale of a chain of Boston-based supermarkets.  After lengthy discussions, the parties claimed to have reached a framework for settlement.  However, at a later date, certain parties informed the court that the settlement had collapsed and pointed the finger at an attorney involved in the settlement who had made a written solicitation to all known trade creditors of the grocery chain – including some who were parties to the case and were already represented by counsel — informing them of his having achieved a 100-cents-on-the-dollar recovery for his client, and inviting them to contact him if interested in retaining his services.

These other lawyers sought sanctions, claiming that the solicitation caused their clients to rescind their settlement agreement.  The Court agreed and, following oral argument where no witnesses appeared, the Superior Court Justice issued the aforementioned monetary sanction in order to compensate the other lawyers for their time after the breakdown of settlement discussions, explaining that the attorney had acted unreasonably, wasted court and attorney resources, delayed the administration of justice, and breached his duties of good faith and fair dealing to opposing counsel, and his duty of candor to the court.  As a result, the Justice concluded, the Court had been materially prejudiced.

Through the early part of 2015, the Amicus Committee worked with the BBA’s Executive Committee and Council and their chosen drafter, Debra Squires-Lee, Sherin & Lodgen, LLP, to finalize the BBA’s amicus brief.  We were excited about the final product, crafted by Debra with help from Sherin & Lodgen associate Jessica Gray Kelly, which, while taking no position on the underlying facts of the case, requests clarification from the SJC on the scope of a Superior Court’s inherent authority to sanction an attorney for out-of-court conduct that was not in violation of a court order.  It further argues that, before resolving disputed facts in such cases, a trial court should ordinarily conduct an evidentiary hearing to try to establish a basis for finding prejudice to the administration of justice and bad faith.

On March 3, 2015, the SJC heard oral argument in the case.  We hope you will watch the brief video, available here as it was clear that our brief played an integral part.  The brief is mentioned immediately, as the appellant’s attorney opens his remarks with a direct quote.  The brief is mentioned again around 4:42 and at the 10:00 minute mark, when Justice Botsford asks the appellant’s attorney his opinion on our brief’s recommended standard for attorney sanctions.  Much of the discussion revolves around the brief’s main points, most notably at around the 6:00 minute mark, when Chief Justice Gants clarifies with the appellant’s attorney that even if the attorney’s actions at issue in the case were plainly in violation of a disciplinary rule and even if it was found that he was given an evidentiary hearing (two points of contention in the underlying case), that the Superior Court still did not have authority to sanction the attorney for his actions.

The SJC Decision

In an opinion authored by Chief Justice Ralph D. Gants, the SJC appeared to agree with some of our brief’s major points, most notably that the judge here abused his discretion by imposing the harsh sanctions and that the attorney’s conduct was more appropriately addressed by referral to the Board of Bar Overseers.

Although the Court rejected our argument that inherent sanctioning powers should be limited to cases where it finds “bad faith,” it adopted a similarly significant limitation – that sanctioning must be “necessary to preserve the court’s authority to accomplish justice” (Wong v. Luu, SJC-11789, p. 17) or “ensure the fair administration of justice” (20).  Expanding on this standard, the Court includes examples of sanction-worthy conduct including:

  • Failing to comply with an order of the court (18)
  • Undue delay in compliance (18)
  • Making knowingly false misrepresentations to the court, intentionally misleading the court, or knowingly concealing information that an attorney has a duty to provide to the court (19)
  • Engaging in conduct in the courtroom that interferes with a judge’s ability to manage the courtroom fairly, efficiently, and respectfully (20)

Analyzing the attorney’s conduct at issue here, the Court concluded that

“the fair administration of justice does not require the settlement of a case; although the parties are free to settle their case, their entitlement under law is to a trial, not to a settlement in lieu of a trial . . . the failure of settlement negotiations does not threaten a judge’s ability to ensure the fair administration of justice [and] the inherent powers of the court do not extend to claims that an attorney during settlement negotiations did not act honestly.” (22-25).

The case has already garnered national attention and we hope that the SJC’s leadership will help set sound precedent for courts in the Commonwealth and across the country.  We are proud to have been part of this process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Ethics Committee Program Year in Review

The Ethics Committee took a leading role in two major court comment requests – the Massachusetts Rules of Professional Conduct and the Code of Judicial Conduct.  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 carefully reviewed the rules and composed six comments along with the BBA’s Bankruptcy Law Section, 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.  In late March, the SJC posted the revised MRPC online.  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 is 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 and social-media platforms.  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 new 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 therefore 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.

In late May, the Ethics Committee held its first CLE, breaking down these rules changes to a packed house in advance of the July 1 effective date.

The Ethics Committee also took a leading role in considering the proposed revised Code of Judicial Conduct.  Posted in late March, the SJC Committee to Study the Code of Judicial Conduct (SJC Committee) drafted a near complete overhaul on the rules governing judges’ conduct.  In late April, the BBA was treated to a comprehensive briefing on the revisions by Justice Cynthia Cohen, chair of the SJC Committee, SJC attorney Barbara Berenson, and SJC Committee and BBA Council member Lisa Goodheart.  Their in-depth explanation of the revisions paved the way for the BBA to provide meaningful comments.

The proposed revised code generally follows the organization and many of the provisions of the 2007 ABA Model Code.  This improves clarity, making the proposed revised code easier to follow and allows Massachusetts to consider interpretations already completed by other states when addressing any potential problems or loopholes.

The revised provisions are broken down into canons, rules, and comments.  Canons are overarching principles – the lens through which the code should be understood.  The most important is Canon 1, containing the so-called “three I’s” – “a judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”  There are too many changes to name them all, but in general, the proposed revised code endorses judicial outreach and civic participation and recognizes many roles for judges, including working in specialty courts, assisting pro se litigants, acting as resources on court administration, and as liaisons to the bar and community.

In late May, the BBA, along with the Ethics Committee and the Delivery of Legal Services and Litigation Section Steering Committees, submitted comments to the Committee.  We are pleased to have taken part in this process and look forward to seeing the final revised Code and sharing it with you.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association