On October 1, 2020, the Supreme Judicial Court issued its opinion In the Matter of Olchowski, an important decision concerning the administration of IOLTA accounts in the Commonwealth. The Court held that client funds on deposit in IOLTA accounts whose owners cannot be identified do not fall within the statutory definition of “abandoned property” under G.L. c. 200A, and therefore such funds should be remitted to the IOLTA Committee rather than escheated to the treasury. The court directed that Mass. R. Prof. C. 1.15 be amended accordingly, including to require that banks notify the Board of Bar Overseers when there is no activity in an IOLTA account for more than two years, and to provide for the transfer and disposition of unidentified funds.
Hearing Officer Recruitment for 2021-2023 term
The Board of Bar Overseers is now accepting applications from attorneys and members of the public to fill several vacancies. The deadline for submitting applications is October 31, 2020. Attorneys must submit a resume; non-attorneys should submit a resume and must complete an application form. Details are available at https://www.massbbo.org/volunteer.
BAR COUNSEL’S ETHICAL HELPLINE
In an article available for download here, Assistant Bar Counsels Robert Daniszewski and David Kluft discuss the importance of bar counsel’s Ethical Helpline service in helping Massachusetts lawyers confront ethical dilemmas that arise in their practices. This article was originally published in the August 2020 edition of the Boston Bar Journal.
BBO CHAIR ORDER IN RE: COVID-19
On May 27, 2020 and in light of the COVID-19 pandemic, the Board of Bar Overseers entered an order extending its original procedural order of March 16, 2020. Both orders are attached here. Please check back frequently for further updates. Readers also should review our FAQs about legal ethics during a pandemic.
Consumer Confidence: What Clients Can Expect from Lawyers In the Era of COVID-19
The Office of Bar Counsel and its Attorney and Consumer Assistance Program (ACAP) understand that the impact of the COVID-19 pandemic on the legal community means that clients are also affected. The Office of Bar Counsel and ACAP provide the following information for clients to help them navigate the attorney-client relationship during this pandemic: link.
ETHICS Q&A IN A COVID-19 WORLD
The Board of Bar Overseers and the Office of Bar Counsel lay out the answers to common ethical issues arising as a result of the pandemic. In this challenging time the BBO and OBC seek to provide guidance to Massachusetts attorneys to allow an ethical response in a changing legal landscape. For additional guidance please call the OBC Ethics Hotline as detailed in the Q&A.
BBO GUIDANCE IN RE: COVID-19 OPERATIONS
As a result of the COVID-19 pandemic the Board of Bar Overseers, the Office of Bar Counsel and Attorney Registration are all currently closed to the public, but all entities remain open for business and are working remotely to accomplish their missions. For answers to the most common questions regarding BBO operations please read these FAQs.
BBO CHAIR ORDER IN RE: COVID-19
On April 21, 2020 and in light of the COVID-19 pandemic, the Board of Bar Overseers entered an order extending its original procedural order of March 16, 2020. Both orders are attached here. Please check back frequently for further updates. Readers also should review our FAQs about legal ethics during a pandemic.
Welcome Letter from the Chair
The BBO is proud to announce the appointments of Vice Chair Marianne C. LeBlanc and Chair Jeffrey R. Martin, who previously served as Vice Chair. You can read attorney Martin’s letter welcoming visitors to our website here.
Bar Counsel's 2019 Annual Report
The Office of Bar Counsel submits its FY2019 Annual Report detailing the work done to fulfill its mission to protect the public and to improve the profession. Here you will find many details of the work done by the office from the intake of complaints to the resolution of those complaints. You may find the Annual Reports here.
SJC ANNOUNCES MASSACHUSETTS BOARD OF BAR OVERSEERS CHIEF BAR COUNSEL
The Supreme Judicial Court has announced that the Massachusetts Board of Bar Overseers recently named Rodney S. Dowell, Esq., as the Chief Bar Counsel, effective December 2, 2019. He fills the position following the retirement of Constance Vecchione, Esq. You can read the full announcement here.
BOARD OF BAR OVERSEERS PROVIDES GUIDANCE ON REINSTATEMENTS
The BBO’s website now provides basic guidance to attorneys seeking reinstatement and their counsel, along with quick links to important forms. Click on “Who We Are” above, and use the drop-down menu to navigate to the FAQs page. There you will find a tab for FAQs about reinstatement.
SJC FORMS NEW STANDING COMMITTEE ON LAWYER WELL-BEING
A July 2019 SJC Steering Committee Report takes an in-depth look, for the first time, at the issue of lawyer well-being in Massachusetts. Click here for a summary of the Report and its recommendations, and for a description of the SJC’s new Standing Committee.
ALERT ON CYBER SECURITY/EMAIL SCAMS
The Board of Bar Overseers has received information and wishes to alert the bar about several email scams. Please click here to review this alert.
Practicing With Professionalism
Pursuant to S.J.C. Rule 3:16, new attorneys admitted to the Massachusetts bar must attend a course on professionalism. You may view the current course calendar by clicking here.
Massachusetts Bar Discipline: History, Practice, and Procedure book now for sale or download
The BBO is excited to announce the publication of a new treatise. The purpose of this treatise, Massachusetts Bar Discipline: History, Practice, and Procedure, is to make the law and procedure related to bar discipline more accessible and understandable to the bench, the bar, and the public. 632 pages. All orders are fulfilled by Publishers Storage and Shipping Company, 46 Development Road, Fitchburg, MA 01420. Orders may be placed online.
BBO Launches In-House Commissioner Program
The BBO is proud to announce that its in-house commissioner program is now underway. You can read the full announcement here.
Proposed Amendments to Procedural Rules on Bar Discipline
The Supreme Judicial Court Rules Committee is soliciting comments on proposed amendments to SJC Rule 4:01 and 4:02 and the Rules of the Board of Bar Overseers (link)
COPING WITH NEGATIVE ONLINE REVIEWS
In an article posted here, Assistant Bar Counsel Robert Daniszewski reviews the ethical issues raised when lawyers respond to negative online reviews.
CSB Launches New Website
The Clients’ Security Board is pleased to announce the launch of its new website: www.masscsb.org. The new website explains how to file a claim, including claim forms that may be downloaded, answers to frequently asked questions, and helpful links, including to the rules that govern the Clients’ Security Board.
New Rule on Client Files Will Provide Clear Guidance for Lawyers
In an article posted here, General Counsel Joseph Berman and Bar Counsel Constance Vecchione review the parameters of new Mass. R. Prof. C. 1.15A on retention and destruction of client files. The rule was adopted by the SJC in June and takes effect on September 1, 2018.
SJC ANNOUNCES NEW RULE ON RETENTION AND DESTRUCTION OF CLIENT FILES
The Supreme Judicial Court on June 7, 2018 approved the adoption of a new rule of professional conduct, Mass. R. Prof. C. 1.15(A), as well as related amendments to several existing rules. New Rule 1.15A specifies the number of years lawyers are required to retain different types of client files and, with certain key exceptions, generally allows for destruction of the files after the allotted time without client notification. The Court’s order can be found here and has an effective date of September 1, 2018.
Flat Fees: A Three-Dimensional View
First Assistant Bar Counsel Dorothy Anderson examines flat fee agreements in a new article on the topic.
From Technophobe to Technolawyer
Assistant Bar Counsel Heather L. LaVigne considers a lawyer's duties related to technology competence and the prevention of inadvertent disclosure in a new article on the subject.
SJC ANNOUNCES AMENDMENTS TO RULES OF PROFESSIONAL CONDUCT
The Supreme Judicial Court has approved amendments to Mass. R. Prof. C. 3.5(c) on lawyers’ communications with jurors after discharge of the jury that conform the rule and its comments to the Court’s decision in Commonwealth v. Moore, 474 Mass. 541 (2016). The amendments have an effective date of December 1, 2017.
Treatise on Legal Ethics
The Board of Bar Overseers is pleased to announce the completion of its treatise on Massachusetts Legal Ethics: Substance and Procedure. A link to the document is available here. The BBO anticipates finalizing the treatise as a hard copy book and e-book in 2018. We hope that the treatise, which is the result of years of work by many practitioners and scholars, will be of great value to the bar and the public. Stay tuned for more information.
SJC Announces Amendments to Rules of the Board of Bar Overseers
The Supreme Judicial Court has approved amendments to certain rules for the Board of Bar Overseers. The amended rules, effective September 1, 2017, will clarify motion practice at the Board.
SJC Appointments to BBO
The Supreme Judicial Court announces the recent appointments of a new Chair, Vice-Chair and three new attorney members to the Board of Bar Overseers.
Why Should A Solo Practitioner Do Succession Planning?
APPEALS COURT DISQUALIFIES ATTORNEY/WITNESS IN CRIMINAL CASES BASED ON CONFLICT OF INTEREST
APPEALS COURT DISQUALIFIES ATTORNEY/WITNESS IN CRIMINAL CASES BASED ON CONFLICT OF INTEREST - In a recent decision, the Appeals Court discussed the propriety of an attorney’s continued representation of a criminal defendant, either at or before trial, in two matters where she was “likely to be a necessary witness” within the meaning of Mass. R. Prof. C. 3.7(a) and otherwise had a nonconsentable conflict under Mass. R. Prof. C. 1.7. Commonwealth v. Delnegro, 91 Mass. App. Ct. 337 (2017). Despite the court’s ruling that the defendant’s appeals of the district court judges’ orders disqualifying the attorney in both matters were not properly before it, it nonetheless considered whether Rules 3.7 and 1.7 of the Rules of Professional Conduct permitted the attorney to represent the client. In the first of the two criminal matters, the attorney was the sole passenger in the defendant’s car when he was stopped and arrested for operating under the influence. When she appeared on his behalf in the resulting court case, a judge of the district court allowed the Commonwealth’s motion to disqualify her as his counsel. Then, while representing himself on the OUI matter, the defendant was alleged to have started an altercation in the courthouse; the attorney, who was sitting in the gallery watching the defendant’s hearing, involved herself in the incident, allegedly demanding that court officers release the defendant and attempting to record the incident on her phone. This incident prompted the second set of criminal charges against the defendant, and during the pendency of that matter, the attorney was again disqualified as the defendant’s counsel by a second district court judge upon motion of the Commonwealth. In its recitation of the facts, the Appeals Court noted that in the first matter, the attorney was alleged to have been “aggressive” and “belligerent,” and in the second, her observations and actions likely would be central to a motion to dismiss. The court reasoned that under Rule 3.7(a), which prohibits counsel from “act[ing] as advocate at a trial in which [she] is likely to be a necessary witness” absent certain exceptions, the attorney – a percipient witness to events underlying both sets of criminal charges and a tangential participant in one – properly must be disqualified regardless of whether either party intended to call her as a witness at trial. The court further explained that although Rule 3.7(a) prohibits the attorney’s representation at trial only, there is no such limitation on a conflict of interest that would disqualify an attorney from representation under Rule 1.7. Due to the potentially embarrassing nature of descriptions of her own conduct in the incident(s), the attorney’s interest in not testifying could conflict with her client’s interests in presenting her testimony. The court therefore determined that this situation did not present a “consentable” conflict that can be waived under Rule 1.7. The court recognized the importance of refraining from interference in the attorney-client relationship, but noted that its sanctity is “not absolute, and must, in some circumstances, yield” to the court’s determination that the attorney’s continued “representation would taint the legal system or the trial of the cause before it.”
FULL BENCH DISBARS LAWYER FOR MISCONDUCT IN LOAN MODIFICATION PRACTICE
FULL BENCH DISBARS LAWYER FOR MISCONDUCT IN LOAN MODIFICATION PRACTICE - In Matter of Zak, 476 Mass. 1034 (2017) the full bench of the Supreme Judicial Court, on appeal by the respondent attorney from a decision by a single justice, affirmed the respondent’s disbarment for misconduct arising out of his loan modification practice. The Court summarized the charges as follows:
Count one alleged that the respondent made payments to others to recommend his services and to solicit professional employment for the respondent from prospective clients; shared fees with nonlawyers; failed to instruct and supervise his employees and agents adequately; and engaged in the practice of law with a person who was not a lawyer. Count two charged that the respondent made false and misleading advertisements about himself, his law firm, and his loan modification services, in Massachusetts and other jurisdictions. Count three alleged that the respondent charged and collected advance fees for loan modification services, in violation of Federal and State statutes and regulations, and that the fees he charged were either excessive or illegal, or both. Count four alleged that the respondent provided or caused to be provided to clients false, deceptive or misleading information about his loan modification services. Counts five, six, and seven alleged misconduct during the respondent's handling of three specific loan modification matters, and in connection with bar counsel's investigation of complaints filed by those clients.
Noting that the respondent did not dispute on appeal that he engaged in the conduct described in the hearing officer’s findings, the Court agreed with the single justice and the board that the respondent “systematically extracted illegal and excessive fees from numerous vulnerable and desperate clients with deceptive advertisements, misleading contractual arrangements, and deceptive and useless services such as the 'lender benefit analysis' and the 'forensic loan audit.' In addition, he engaged in unlawful fee-splitting to provide his partner and his employees with the financial incentive to use the machinations to enhance his personal financial interest at the expense of his clients.”
The Court, among other findings, expressly rejected the respondent’s claim that he was entitled to deposit advance fees to a non-trust account despite contrary federal and state loan modification regulations because Mass. R. Prof. C. 1.5 permits the deposit of [flat] fees to an account other than a trust account; the Court noted that Rule 1.5 expressly prohibits lawyers from collecting illegal fees. In determining that disbarment is required, the Court held that disbarment was warranted by, among other factors, “the repeated nature of the respondent's misconduct, over a period of years, involving hundreds of economically, educationally, and linguistically disadvantaged clients in strained financial circumstances, evidenced by threatened foreclosure of their homes.”
SJC Announces New BBO General Counsel
The Board of Bar Overseers is pleased to welcome Attorney Joseph Berman as General Counsel to the Board, as we wish a fond farewell to Joe's predecessor, Mike Frederickson. You can read the SJC's press release here, and a piece in Lawyers Weekly here.
BBO/OBC POLICY ON LEGAL ADVICE ON MARIJUANA - The Massachusetts Board of Bar Overseers and Office of the Bar Counsel will not prosecute a member of the Massachusetts bar solely for advising a client regarding the validity, scope, and meaning of Massachusetts statutes and laws regarding medical or other legal forms of marijuana or for assisting a client in conduct that the lawyer reasonably believes is permitted by Massachusetts statutes, regulations, orders, and other state or local provisions implementing them, as long as the lawyer also advises the client regarding related federal law and policy.
Online Registration Requirement
Effective September 1, 2016, Massachusetts attorneys are required to submit their annual registrations online. You may register by clicking here. Please read the announcement here.