Order in re: Bar Counsel v. Kris C. Foster, Esq., Anne K. Kaczmarek, Esq., and John C. Verner, Esq.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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:
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.”
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.