Obeying the law, avoiding conflicts of interest, and putting a client’s needs first may seem straightforward or a matter of professional common sense, but these things aren’t always simple. As law practice has become more complex, so have the professional rules governing practicing law—at least in their practical application. Common ethical issues arise in the areas of client communications, the management of client money, fee arrangements, the handling of confidential information, and the act of withdrawing from a matter in an ethical manner.
It’s the Supreme Judicial Court of Massachusetts that sets forth the Rules of Professional Conduct that govern our profession and establish the minimum ethical standards for practicing law. In Massachusetts, the Board of Bar Overseers and the Office of Bar Counsel are designated to deal with lawyer disciplinary actions or grievances. Somewhere in between the framework of the Rules and the role of the Board of Bar Overseers is the BBA’s Ethics Committee and the role that it plays.
Broadly speaking, the BBA’s Ethics Committee provides guidance to lawyers who are uncertain about how to practice in the context of the Rules. The Committee issues formal advisory opinions that address a particular issue related to the ethical practice of law or the Rules of Professional Conduct. At times, the Ethics Committee also provides informal guidance to BBA leadership, sections, staff or members with respect to the interpretation of the Rules.
Some examples of formal opinions that have been issued by the BBA’s Ethics Committee in the past include procedures for lawyer referral services, bankruptcy pro bono initiatives, the “do’s and don’ts” of revealing “conflict-checking information,” contingent fees in domestic relations matters, and ownership of an affiliated business entity by a law firm.
Here’s an example of a question that our Ethics Committee is posed to answer. Take the BBA’s Lawyer Referral Service (LRS), which is designed to match members of the public in need of legal services with qualified lawyers to handle their cases. Members of the public contact the LRS, describe their legal issue, and receive a referral to a suitable lawyer in the relevant area of law. In some instances when a referral is made, the prospective client does not contact the referred lawyer. MRPC 7.3(d) bans in-person solicitation by a lawyer of a prospective client. If the referred lawyer calls the prospective client to find out if he or she still wishes to consult, is that a violation of the Rule? In this instance, the BBA’s Ethics Committee provided a formal opinion that obtaining the prospective client’s consent during initial intake sufficiently satisfies the requirements of the Rule.
Here’s another example of a question that our Ethics Committee answered. The BBA’s Bankruptcy Law Section and the Volunteer Lawyers Project sponsored a pro bono initiative carefully designed to help an individual contemplating bankruptcy determine whether his or her circumstances warrant filing for Chapter 7 bankruptcy. The program was developed to increase participation among larger law firms as a pro bono initiative and was designed to screen out any conflicts. There was an ethics question because many of the volunteer lawyers practice at major law firms, which represent financial institutions and other businesses. In any given case, it is quite likely that the volunteer lawyer’s firm will already represent, in one or more unrelated matters, a business that is a creditor of the pro bono client.
The attorney would meet with the individual, review the situation, counsel the individual regarding filing for bankruptcy, where appropriate assist in preparing a Chapter 7 petition, and may also accompany the individual to the meeting. The lawyer’s role ends there.
The Ethics Committee concluded that certain creditors have meaningful debts and therefore a conflict check would be run in that situation. If there is a conflict, the individual would be referred to another attorney in the program. Under the pro bono program, where special circumstances have been screened out, the limited role of the attorney was not seen as giving rise to a conflict of interest.
– Kathleen Joyce
Director of Government Relations
Boston Bar Association