The Supreme Judicial Court Standing Advisory Committee on the Rules of Professional Conduct has solicited comments on proposed amendments to the Rules that will have a broad impact on lawyers’ ethical obligations. The amendments relate to the “continuing problem” of incivility among lawyers, a lawyer’s obligations when colleagues are practicing while impaired, how lawyers may properly hold themselves out as specialists, sexual relationships between lawyers and clients, what constitutes a “misleading” statement about a lawyer’s services, and other important topics. The Committee issued an explanation of the proposed amendments, a description of the proposed amendments, and a redline with the current rules and the Model Rules of Professional Conduct issued by the American Bar Association.
Among the proposed changes are the following.
- Incivility Among Lawyers. The Committee proposes adding a comment to Rule 1.2 stating that lawyers should not allow their clients’ “personal prejudices or animosities” to dictate their treatment of others in the legal process and should reject requests to engage in “abusive tactics.” A new comment to Rule 3.4 would also reference lawyers’ obligations to cooperate in scheduling and case management, and meet and confer in good faith to attempt to resolve or narrow issues before submitting them to a tribunal, where the rules of the tribunal so require.
- Obligations of Lawyers When Other Lawyers are Mentally, Emotionally, and Physically Impaired. The Committee recommends adding a comment to Rule 5.1 noting that supervisory lawyers have an obligation to address situations where their colleagues’ mental, emotional, or physical abilities have declined to the point of impairing their ability to provide competent representation. The proposed comment states that supervisory lawyers should encourage their colleagues to seek assistance and put in place procedures to protect clients, such as auditing past work or limiting or monitoring future work.
- Specialization and Certification in a Particular Area of Law. An amendment to Rule 7.2(c) would clarify that lawyers may generally hold themselves out as “specialists” in a particular area of law. However, under the amended rule, lawyers may not claim to be “certified” as specialists unless: (1) the certifying organization is clearly identified; (2) the organization is approved by a state authority or accredited by the ABA; (3) the communication contains a statement that the organization is a “private organization” whose certification standards are not regulated by a state authority or the ABA; and (4) at least one lawyer responsible for the communication is identified. A new comment would also caution that lawyers who hold themselves out as specialists “should expect to be held to the standard of performance of specialists” in that particular area of law.
- Enhanced Strictures on Sexual Relationships with Clients. The Committee recommends adding specific rules governing such relationships. Rule 1.8(j) would ban sexual relationships between a lawyer and client in domestic relations matters during the representation. The rule also would state that, during a representation, a lawyer may not use “coercion, intimidation, or undue influence” to enter into or continue a sexual relationship with a client. The rule would further state that a lawyer cannot require or demand sexual relations with a client as a condition of entering into or continuing a representation. A revised comment to Rule 1.7 would clarify that, even if a sexual relationship does not violate Rule 1.8(j), a conflict of interest may still exist. Unless it would be “clear to a reasonable person” that the sexual relationship would not materially affect the representation, the lawyer should avoid the sexual relationship or end the representation. A new comment to Rule 1.7 would recognize that sexual relationships with representatives of organizational clients pose special problems. The proposed comment warns that the representative might not be able to properly assess and waive a conflict for the organization, and another representative might be needed to decide whether to waive the conflict.
- Broadened Prohibition on Conduct Manifesting Bias or Prejudice. The Committee proposes moving this prohibition from Rule 3.4 to 4.4 and removing the limiting reference to appearances before a tribunal. Doing so would extend the prohibition to all conduct in the legal representation of a client. The Committee also recommends adding “gender identity” to the list of protected categories to conform to M.G.L. c. 151B.
- Guidance on What Constitutes a Misleading Statement in Communications Regarding a Lawyer’s Services. The Committee recommends adding comments to Rule 7.1 shedding light on what constitutes a “misleading” communication. For example, the proposed comments state that it is misleading for a law firm to imply a connection with: (1) a government agency; (2) a deceased or retired lawyer who was not a member of the firm; (3) a non-lawyer; or (4) a public or charitable legal services organization. The proposed comments further instruct that lawyers cannot “imply or hold themselves out” as practicing together in one firm when they are not a firm, such as when they simply share office space. Law firms also would be required to identify lawyers in an office who are not licensed to practice law in the jurisdiction where the office is located.
- Retention of Client Files. The Committee recommends amending Rule 1.15 to clarify that a client’s instructions regarding the disposition of a client file are controlling, and only in the absence of such instructions is a lawyer required to maintain the client file for up to six years (or other applicable time period). A proposed comment specifies that, for a lawyer to rely on a writing evidencing an alternative arrangement, the writing must be legally enforceable.
Comments on the proposed amendments to the Rules are due by March 26, 2021. Instructions for submitting comments may be found here.
We will continue to monitor updates to the Rules. Lawyers with questions about their ethical obligations under the Massachusetts Rules of Professional Conduct or the proposed amendments should contact one of Conn Kavanaugh’s experienced professional liability lawyers
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