SJC Ruling Agrees with Joint Amicus Brief Clarifying Attorney’s Ethical Obligations under Rule 1.6

The SJC reversed a criminal conviction this week after finding that a criminal defense lawyer had provided ineffective assistance of counsel by disclosing to the Commonwealth information received from a third party regarding the location of potentially incriminating evidence. Agreeing with an amicus brief filed by the Committee for Public Counsel Services (CPCS) and joined by the BBA, the Court held that on these facts—where the attorney never had possession of the evidence in question, and no exigent circumstances applied—the attorney was under no ethical obligation to notify the Commonwealth of the evidence’s existence.

The case, Commonwealth v. Tate, involved a defendant who had told authorities, upon arrest, that he’d tossed the gun involved in the fatal shooting over a bridge. The victim’s mother later alerted defense counsel that she’d discovered a jacket of her son’s and a locked box in her basement, which contained a gun. Defense counsel approached the defendant to ask for approval to disclose the location of the evidence to the Commonwealth. Defense counsel believed in good faith that ethical rules required such disclosure, informed the defendant of his perceived duty to disclose and obtained defendant’s consent to disclose the location of the evidence to prosecutors. But the SJC, in a unanimous opinion written by Justice Serge Georges, Jr., held that defense counsel had misunderstood his ethical obligations, and that the duty of confidentiality actually prohibited such disclosure. Though the defendant signed off on the disclosure, the SJC held that this did not constitute informed consent because the defendant was never presented with any other option.

The amicus brief filed by CPCS—and joined by the BBA and the Massachusetts Association of Criminal Defense Lawyers—argued that the information received by counsel was confidential under Rule 1.6 of the Rules of Professional Conduct, and that an obligation to disclose incriminating information to the Commonwealth “would drive a wedge between clients and their attorneys, prevent counsel from conducting the wide-ranging investigations necessary to their work, and undermine the functioning of our adversary system of justice”, as well as discouraging counsel from fully investigating their clients’ cases.

“The Court properly held that defense counsel’s duty of undivided loyalty to a client cannot be squared with a duty to disclose the location of possibly incriminating evidence to the government,” said BBA Amicus Committee Co-Chair Maria Durant of Hogan Lovells. “This attorney’s view, although held in good faith, that he had an ethical obligation of disclosure was erroneous and, as the Court found, created a conflict of interest that necessitates a new trial.”

BBA President Deb Manus of Nutter McClennen said, “We are pleased that the SJC interpreted the Rules of Professional Conduct as the amicus brief argued. This ruling provides meaningful guidance to defense counsel as to both their ethical obligations and their duties to clients.”