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