A practical discussion of ransomware for solo and small firm lawyers, written by Attorney Terrence Pricher, can be read here.
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.
Welcome to Our New Website
Click here for the welcome letter from Board of Bar Overseers Chair Donna Jalbert Patalano.
No Easy Credit: Ethics Issues In Accepting Legal Fee Payments By Credit Card
"No Easy Credit: Ethics Issues In Accepting Legal Fee Payments By Credit Card" published. Click here to read the article
2016: The Year in Ethics and Bar Discipline
"2016: The Year in Ethics and Bar Discipline" published. Click here to read the article
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.
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 2017 course calendar by clicking here.
Alert on Email Scams
The Board of Bar Overseers has received information and wishes to alert the bar about two different email scams. Please click here to review this alert.
Bar Counsel's Annual Report
Click here to review Annual Report submitted by the Office of Bar Counsel to the Supreme Judicial Court for Fiscal Year 2016. You may find the Annual Reports archive here.