Getting It Right: Bar Counsel’s Ethical Helpline Helps Lawyers Resolve Ethical Dilemmas and Avoid Sleepless Nights
by Robert M. Daniszewski and David A. Kluft
It was a situation that would fray the nerves of any lawyer, even one inured by three decades of experience in handling criminal cases and the ethical issues that can go along with such a practice. The lawyer’s client was on trial for first-degree murder; he had allegedly attended a party hosted by the family of his ex-girlfriend and, while there, robbed and shot her new boyfriend. The Commonwealth rested its case after presenting evidence that included eyewitness testimony, surveillance video, and ballistics. The client, rather than exercise his Fifth Amendment right not to testify, and against the lawyer’s advice, told the lawyer that he planned to take the stand in his own defense. The lawyer understood that some specific aspects of the testimony the client planned to give would be false, which meant that the lawyer was now faced with a serious ethical problem if the client insisted on being called to the stand. Rule 3.3(e) of the Massachusetts Rules of Professional Responsibility prohibits attorneys from knowingly eliciting false testimony from a witness or referring to such evidence in closing arguments. The lawyer therefore needed to negotiate a path between two potentially conflicting ethical duties. As counsel for a criminally accused defendant, he needed to safeguard his client’s rights to a fair trial while zealously advocating for his acquittal. But as an officer of the court, he was forbidden from participating in the presentation or use of perjurious testimony. Failing to find the appropriate middle ground between these competing requirements could lead to dire consequences.
The solution to the lawyer’s dilemma came as a result of a telephone call to the “Ethical Helpline,” a service of the Office of Bar Counsel (OBC). The evening before the trial was set to resume, the lawyer called the Ethical Helpline and was put in touch with an experienced assistant bar counsel (ABC) to whom he explained the situation. She listened, directed the lawyer to the relevant rules, comments, and case law, and helped him outline the steps he would need to take during the trial to avoid assisting in the presentation of false testimony. As a result, the client offered his testimony in the form of a narrative rather than through the usual process of question and answer.
The procedure used by this lawyer, and the results of the case, are recounted by the Supreme Judicial Court in its recent decision, Commonwealth v. Leiva, 484 Mass. 766 (2020). Rejecting the client’s argument that having to testify by narrative was prejudicial to his defense, the justices noted the probity the lawyer had displayed, not only in the way he had handled the Rule 3.3 issue when it was time for his client to testify, but also in his decision the evening before to call OBC for guidance on how to proceed. Because of his “prudent advance consultation with bar counsel,” the lawyer had, in the Court’s words, “exemplified conduct befitting a member of our profession.” Id. at 784-85.
The Leiva case may be the first time a call to the Ethical Helpline has figured into a decision of the Supreme Judicial Court, but Leiva by no means represents the first time the Ethical Helpline has assisted an attorney in working through a difficult and stressful ethical problem. A staff of approximately a dozen ABCs collectively field about 2,000 calls every year through the Ethical Helpline as an adjunct to their usual duties investigating and prosecuting cases of alleged misconduct.
Unsurprisingly, the range of topics presented to the OBC through the Ethical Helpline is immense, covering nearly every aspect of the practice of law. On any given afternoon’s session, the Ethical Helpline may hear from a caller who is uncertain about how to deal with a client who has disappeared, a lawyer needing help applying the rules on advertising and solicitation to her marketing idea, or a sole practitioner attempting to untangle a knotty conflict-of-interest question that arises because of a promising job opportunity. Many of the calls, like the one in Leiva, supra, raise serious and urgent questions that go to the heart of the lawyer’s duties to a client. For example, the Ethical Helpline has assisted numerous lawyers in deciding whether a client’s menacing words or declining cognitive state justify taking actions that might require disclosure of otherwise confidential information. The Ethical Helpline provides an opportunity to get immediate, practical guidance on these and many other situations that arise in a lawyer’s practice.
Both the evolving, technology-driven nature of the practice of law as well as the intrusion of outside events can shape the kinds of questions presented to OBC on the Ethical Helpline. Callers increasingly inquire about emerging issues such as the ethical implications of storing case files in the cloud, or whether a firm can post a rebuttal to a negative online review. In connection with the coronavirus pandemic, helpline staff have fielded a variety of calls from lawyers who were attempting to cope with their inability to meet or appear in court with clients, comply with discovery deadlines, or otherwise attend to the needs of a case as they would have in the absence of Covid-19-related restrictions. The Ethical Helpline assists callers in dealing with these novel ethical problems while providing the added benefit of keeping ABCs abreast of real-world issues that are transforming the practice landscape.
Not all calls or questions are appropriate for the Ethical Helpline and there are limitations on how the information a caller receives should be used. The service is only offered to attorneys admitted in Massachusetts, rather than out-of-state lawyers, non-lawyer staff, or members of the general public. Moreover, the service is expressly offered for the purpose of assisting lawyers in resolving their own ethical dilemmas, not complaining about another attorney’s conduct. (Such complaints, which may be mandatory under Mass. R. Prof. C. 8.3 depending on the seriousness of the misconduct, should be directed to the Attorney and Consumer Assistance Program which performs the intake and screening functions for OBC.)
Importantly, the Ethical Helpline cannot offer legal opinions or legal advice, and lawyers who avail themselves of the service remain responsible for their own ethical conduct at all times. Because of the informal nature of the consultation and the limited facts presented on the call, the purpose and focus of the call is to assist lawyers in identifying the ethical rules and principles that apply to their situation and clarifying any particular points the caller needs to consider in order to address the situation appropriately. Depending on the nature of the problem, the Ethical Helpline may refer the caller to any of dozens of existing OBC web articles addressing topics that are relevant to the caller’s predicament. When a question is not clearly addressed by the rules or the comments thereto, and especially where the answer to a question depends on a question of substantive or procedural law outside the area of legal ethics, callers are advised to conduct their own further legal research in deciding how to proceed. In some instances, the ABC handling the call may suggest seeking a formal ethics opinion from the Massachusetts Bar Association or the Boston Bar Association.
Although callers to the Ethical Helpline do not identify the client or case that prompted the call, they do have to identify themselves; the Ethical Helpline does not take anonymous calls. However, bar counsel will not disclose the content of a call to third parties and generally will not act on any information provided by a caller except to offer guidance in construing the caller’s ethical responsibilities. The calls are not recorded, but the Office of Bar Counsel keeps a record indicating the date a call took place and the name of the ABC with whom the caller spoke. As in Leiva, the fact that a lawyer sought guidance from the Ethical Helpline on an issue may prove relevant in a subsequent ethical or court proceeding, whether as an indication of the lawyer’s good faith desire to resolve a problem appropriately, to show that, subsequent to the call, the lawyer acted in manner inconsistent with the guidance he or she had received, or for some other purpose. For the most part, however, lawyers contact the Ethical Helpline not with a view to create a record of having consulted OBC, but out of a sincere desire to make the right decision in addressing a complicated or unfamiliar ethical problem, and to get the peace of mind that comes when the right decision comes into focus.
The telephone number for the Ethical Helpline is (617) 728-8750. The service operates from 2:00 to 4:00 p.m. on Mondays, Wednesdays, and Fridays, although inquiries outside those days and hours can usually be accommodated for lawyers in need of emergency assistance. Lawyers who find themselves in an ethical quandary with no obvious solution, or who think they have arrived at the correct answer to an ethical dilemma on their own but simply want to talk it through before taking final action, should call the Ethical Helpline for assistance.
Robert Daniszewski is an Assistant Bar Counsel with the Massachusetts Board of Bar Overseers since 2014. In his prior civil practice, he concentrated on matters involving attorney professional responsibility, representing both lawyers and clients in such cases. He is a 1990 graduate of Boston College Law School.
Dave Kluft is an Assistant Bar Counsel with the Massachusetts Board of Bar Overseers. He graduated from Boston University Law School in 2003 and clerked for the Supreme Judicial Court. He is a former partner at Foley Hoag, and previously served on the Boston Bar Journal board of editors.