Playing by the Massachusetts Rules
of Professional Conduct, (as revised
by the SJC effective 1 July 2015)
J. Charles Mokriski
Professional Responsibility Counsel
Proskauer Rose LLP
5 August 2015
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Two Pillars of Legal Ethics
I. Loyalty to Clients:
Confidentiality
Unconflicted, Competent Advice and Advocacy
II. Honesty
Honesty to All
Candor to the Court
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Rule 1.6(a): Confidentiality of Information
(a) A lawyer shall not reveal confidential information
relating to representation of a client unless the client
consents after consultation, except for disclosures that
are impliedly authorized in order to carry out the
representation, and except as stated in paragraph (b).
Note word “confidential” before “information”. It reduces the scope of the
Rule to the protection of information that a client would care about. The
Model Rule’s omission of the word “confidential” makes its literal
application impractical, and requires a “common sense” reading.
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Rule 1.6(b): Exceptions to Obligation of Confidentiality
(1) to prevent reasonably certain death or substantial bodily harm, or to
prevent the wrongful execution or incarceration of another;
(2) to prevent the commission of a criminal or fraudulent act that the lawyer
reasonably believes is likely to result in substantial injury to property,
financial, or other significant interests of another;
(3) to prevent, mitigate or rectify substantial injury to property, financial, or
other significant interests of another that is reasonably certain to result or
has resulted from the client’s commission of a crime or fraud in furtherance
of which the client has used the lawyer’s services; (emphasis added)
Subparagraph (3) is new in Massachusetts and is almost identical to the
corresponding paragraph of the Model Rule, but note the underlined phrase in
subparagraphs (2) and (3). It does not appear in the Model Rule, and its
presence here expands the scope of the exception.
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Rule 1.6(b): Exceptions (cont’d.)
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal
charge or civil claim against the lawyer based upon conduct in which the
client was involved, or to respond to allegations in any proceeding
concerning the lawyer’s representation of the client;
(6) to the extent permitted or required under these Rules or to comply with
other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s
potential change of employment or from changes in the composition or
ownership of a firm, but only if the revealed information would not
compromise the attorney-client privilege or otherwise prejudice the client
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Rule 1.6 Official Comments
[1] This Rule governs the disclosure by a lawyer of confidential
information relating to the representation of a client during the
lawyer’s representation of the client. See Rule 1.18 for the lawyer’s
duties with respect to confidential information provided to the lawyer
by a prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to
reveal confidential information relating to the lawyer’s prior
representation of a former client, and Rules 1.8(b) and 1.9(c)(1) for
the lawyer’s duties with respect to the use of such information to the
disadvantage of clients and former clients.
Rules 1.9(c)(2), 1.8(b) and 1.9(c)(1) follow on slides 12 through 17
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Rule 1.6 – Official Comments (cont’d.)
[3] The principle of client-lawyer confidentiality established by this
Rule is broader than the attorney-client privilege and the workproduct doctrine. The attorney-client privilege and work-product
doctrine apply in judicial and other proceedings in which a lawyer
may be called as a witness or otherwise required to produce
evidence concerning a client. The rule of client-lawyer
confidentiality also applies in situations other than those where
evidence is sought from the lawyer through compulsion of law.
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Rule 1.6 Comment [3A]
[3A] “Confidential information” consists of information gained during
or relating to the representation of a client, whatever its source, that
is (a) protected by the attorney-client privilege, (b) likely to be
embarrassing or detrimental to the client if disclosed, or (c)
information that the lawyer has agreed to keep confidential….
Subsection (c) is a notable departure from the corresponding Comment
prior to the recent changes. Based on the old Code category of
confidential information called “secrets”, the Comment used to protect
“information the client has requested be held inviolate”. The revised
Comment cuts back on the lawyer’s confidentiality obligation with respect to
“secrets” to information the lawyer has “agreed” to keep confidential, so
that a client’s request with which the lawyer has not agreed has no effect.
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Comment [3A] to Rule 1.6 (cont’d.)
…“Confidential information” does not ordinarily include (i) a
lawyer’s legal knowledge or legal research or (ii) information
that is generally known in the legal community or in the trade,
field or profession to which the information relates….
Information that is “generally known in the local community or
in the trade, field or profession to which the information
relates” includes information that is widely known. Information
about a client contained in a public record that has received
widespread publicity would fall within this category. On the
other hand….
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Comment [3A] to Rule 1.6 (cont’d.)
…On the other hand, a client’s disclosure of conviction of a crime in
a different state a long time ago or disclosure of a secret marriage
would be protected even if a matter of public record because such
information was not “generally known in the local community.” As
another example, a client’s disclosure of the fact of infidelity to a
spouse is protected information, although it normally would not be
after the client publicly discloses such information on television and
in newspaper interviews.
NB. In re Anonymous, 932 N.E.2d 671 (Ind. 2010)
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Old Comment [6] to Mass. Rule 1.6
The requirement of maintaining confidentiality of information
relating to representation applies to government lawyers who
may disagree with the policy goals that their representation is
designed to advance.
Quaere: What was this comment in the former version of the Rules
designed to accomplish, and why was it deleted in the recent
revision?
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Mass. Rules Definition of “Firm”
(d) "Firm" or "law firm" denotes a lawyer or lawyers in a law
partnership, professional corporation, limited liability entity,
sole proprietorship or other association authorized to practice
law; or lawyers employed in a legal services organization or
the legal department of a corporation, government entity, or
other organization.
The Model Rules do not include governmental law departments
within the definition of “firm”. Their inclusion in Massachusetts (and
New York and other jurisdictions) could have implications for
imputed conflicts of interest.
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Comment [3A] to Rule 1.6 (cont’d.)
…The accumulation of legal knowledge that a lawyer
gains through practice ordinarily is not client information
protected by this Rule. In addition, the factual
information acquired about the structure and operation
of an entire industry during the representation of one
entity within the industry would not ordinarily prevent an
attorney from undertaking a successive representation
of another entity in a matter when the attorney had no
other relevant confidential information from the earlier
representation and there was no other conflict of interest
at issue.
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Rule 1.18: Duties to Prospective Clients
(a) A person who consults with a lawyer about the possibility
of forming a client-lawyer relationship with respect to a matter
is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer
who has learned confidential information from a prospective
client shall not use or reveal that information, except as Rule
1.9 would permit with respect to confidential information of a
former client
This is a new rule, added by the ABA to its Model Rules 10 years ago. Its
subparagraph (d) contains an important path to avoid the firm’s
disqualification when one of its lawyers receives confidential information.
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Rule 1.18: Duties to Prospective Clients (cont’d.)
(c) A lawyer subject to paragraph (b) shall not represent a
client with interests materially adverse to those of a
prospective client in the same or a substantially related
matter if the lawyer received confidential information from the
prospective client that could be significantly harmful to that
person in the matter, except as provided in paragraph (d). If a
lawyer is disqualified from representation under this
paragraph, no lawyer in a firm with which that lawyer is
associated may knowingly undertake or continue
representation in such a matter, except as provided in
paragraph (d). (emphasis added)
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Rule 1.18: Duties to Prospective Clients (cont’d.)
(d) When the lawyer has received disqualifying information as
defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given
informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable
measures to avoid exposure to more disqualifying information than
was reasonably necessary to determine whether to represent the
prospective client; and68
(i) the disqualified lawyer is timely screened, as defined in Rule
1.10(e), from any participation in the matter and is apportioned
no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
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Rule 1.9(c): Duties to Former Clients
(c) A lawyer who has formerly represented a client in a matter
or whose present or former firm has formerly represented a
client in a matter shall not thereafter:
(1) use confidential information relating to the representation
to the disadvantage of the former client, except as Rule 1.6,
Rule 3.3 or Rule 4.1 would permit or require with respect to a
client; or
(2) reveal confidential information relating to the
representation except as Rule 1.6, Rule 3.3 or Rule 4.1 would
permit or require with respect to a client.
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Rule 1.8: Conflict of Interest; Prohibited
Transactions
(b) A lawyer shall not use confidential information relating to
representation of a client to the disadvantage of the client or
for the lawyer’s advantage or the advantage of a third person
unless the client gives informed consent, except as permitted
or required by these Rules. (emphasis added)
This version of paragraph (b) of the Rule differs from the ABA
Model Rule, which does not contain the underlined language,
making this restriction broader than the Model Rule. New York has
an equally broad restriction, but it is contained in Rule 1.6, the basic
confidentiality rule rather than here.
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Comment [5] to Rule 1.8: Conflicts of Interest;
Prohibited Transactions
[5] Use of confidential information relating to the representation to the
disadvantage of the client violates the lawyer’s duty of loyalty. Paragraph
(b) prohibits disadvantageous use of client confidential information unless
the client gives informed consent, except as permitted or required by these
Rules. See Rules 1.2(d), 1.6, 1.9(c), 3.3, 4.1(b), 8.1, and 8.3. Paragraph (b)
applies when such information is used to benefit either the lawyer or a third
person, such as another client or business associate of the lawyer. For
example, if a lawyer learns that a client intends to purchase and develop
several parcels of land, the lawyer may not use that information to
purchase one of the parcels in competition with the client or to recommend
that another client make such a purchase.
Quaere: Is the final sentence of this comment intended to narrow the scope of
this prohibition to situations in which the former client is disadvantaged? How
about buying a nearby parcel because the client’s plans will enhance its value?
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Rule 4.1: Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary
to avoid assisting a criminal or fraudulent act by a client, unless disclosure is
prohibited by Rule 1.6.
Comment: [2] This Rule refers to statements of fact….Under generally
accepted conventions in negotiation, certain types of statements ordinarily are
not taken as statements of material fact. Estimates of price or value placed on
the subject of a transaction and a party’s intentions as to an acceptable
settlement of a claim are [ordinarily] in this category, and so is the existence of
an undisclosed principal except where nondisclosure of the principal would
constitute fraud.
Note: Model comment includes the second “ordinarily”. The MA comment does not.
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Implications of Comment [2] for Negotiations
Consider possible answers to the following questions:
“What are you authorized to pay [or accept] to settle?”
“Is the company confident of the validity of its key patents?”
“Are the key employees in good health?”
“How old are the COO and CFO?”
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Rule 4.1: Truthfulness…Comment [4]
[4] Paragraph (b) requires a lawyer in certain circumstances to disclose
material facts to a third person “unless disclosure is prohibited by Rule 1.6.”
…. under Rule 1.6(b)(2), a lawyer may reveal confidential information to
prevent a criminal or fraudulent act that is likely to result in substantial
injury to the property of another. If Rule 1.6(b) gives a lawyer permission to
make disclosure, then disclosure is not prohibited by Rule 1.6, and
disclosure under paragraph (b) of this Rule is mandatory. If Rule 1.6(b)
does not give permission to disclose – [for] example, when the injury from a
criminal or fraudulent act is not “substantial” – then the disclosure
requirement of Rule 4.1(b) does not apply.… Even if Rule 1.6 prohibits
disclosure, the lawyer may have other duties, such as a duty to withdraw
from the representation. See Rule 1.2(d) and Rule 1.16(a)(1).
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Rule 1.4: Communication
(a) A lawyer shall
(1) promptly inform the client of any decision or circumstance with respect
to which the client’s informed consent, as defined in Rule 1.0(f), is
required by these Rules;
(2) reasonably consult with the client about the means by which the client’s
objectives are to be accomplished;…
(5) Consult with the client about any relevant limitation on the lawyer’s
conduct when the lawyer knows that the client expects assistance no
permitted by the Rules…or other law….
[These are the new paragraphs added by the SJC; the old rule required only keeping
the client “reasonably informed”, “promptly complying with reasonable requests for
information, and “explaining matters to the extent necessary to permit the client to
make informed decisions regarding the representation”.]
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Ethics Opinions Bearing on Negotiations
ABCNY Op. 477 (1939) (when lawyer recognizes inadvertent mistake
made by other lawyer in settlement agreement, lawyer should urge client to
reveal the mistake and, if the client refuses, the lawyer should do so);
Cf. ABA Informal Op. 86-1518 (1986) (Where the lawyer for A has received
for signature from the lawyer for B the final contract from which an
important provision favorable to B previously agreed upon has been
inadvertently omitted by the lawyer for B, the lawyer for A, should contact
the lawyer for B to correct the error and need not consult A about the error.)
Is the 2nd Opinion above consistent with the lawyer’s obligation under Rule
1.4 (see previous slide) to keep the client informed, and the obligation to
consult with the client about the “means” for seeking the client’s objectives?
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Ethics Opinions Bearing on Negotiations (cont’d)
California State Bar Formal Opinion 2013-189
Buyer obtains agreement to a covenant not to compete from the Seller
of a business. After Buyer’s attorney prepares an initial draft, Seller’s
tax advisor advises Seller that the tax impact would be more favorable
to him if more of the purchase price is be allocated to the sale of the
business and less to the covenant. Responsive to this request, Buyer
has his Attorney revise the agreement to allocate all but $1 of the
consideration to the sale. Seller’s attorney realizes that the effect of
this change is to render the covenant worthless, since if breached,
Buyer would receive only $1, and so notifies Seller. Seller instructs
him not to call error to the attention of the Buyer. Two scenarios
discussed: 1.. Where Buyer’s Attorney did the redraft, Seller’s Attorney
can abide by Seller’s instructions a keep mum. Where Seller’s
Attorney did the redraft, he must still stay mum but must withdraw from
the representation rather than consummate the transaction.
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Rule 1.2: Scope of Representation and Allocation of
Authority Between Client and Lawyer
(d) A lawyer shall not counsel a client to engage, or assist a client, in
conduct that the lawyer knows is criminal or fraudulent, but a lawyer may
discuss the legal consequences of any proposed course of conduct with a
client and may counsel or assist a client to make a good faith effort to
determine the validity, scope, meaning, or application of the law.
Comment [10] A lawyer may not continue assisting a client in conduct that
the lawyer originally supposed was legally proper but then discovers is
criminal or fraudulent. The lawyer must, therefore, withdraw from the
representation of the client in the matter. See Rule 1.16(a). But see Rule
3.3(e). In some cases, withdrawal alone might be insufficient. It may be
necessary for the lawyer to give notice of the fact of withdrawal and to
disaffirm any opinion, document, affirmation or the like. See Rule 4.1.
Last sentence describes what is referred to as a “noisy withdrawal”, and it
was added to the Comment in the recent revisions by the SJC
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Use of Social Networking WebSites of Others
to Obtain Information
ABCNY Op. 2010 – 02; NYSBA Op 843;Phil.Bar Ethics Op. 2009 – 02,
Mass. Bar Assoc. Ethics Op. 2014-5, ABA Formal Opinion 466.
- Public pages of networking websites, accessible without need of
“friending” or otherwise obtaining special access, may be used
without restriction
- Cannot use deception or trickery to obtain access, for example, by
using an assistant to conceal identity or giving false reason for
seeking access
- “Friending” a represented person on Facebook, or similar actions with
other electronic social networking networks, would constitute a
prohibited contact under Rule 4.2
- Reviewing Jurors’ Internet Presence – ABA v. ABCNY
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Rule 8.4: Misconduct
A lawyer or law firm shall not:
(a) violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the
acts of another;
(b) engage in illegal conduct that adversely reflects on the
lawyer’s honesty, trustworthiness or fitness as a lawyer;
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration of
justice; …
(h) engage in any other conduct that adversely reflects on the
lawyer’s fitness as a lawyer.
[ Rule 8.4 (c) and Rule 4.1 prohibit “pretexting” ]
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Rule 5.2: Responsibility of a Subordinate Lawyer
(a) A lawyer is bound by these Rules notwithstanding
that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate these Rules if
that lawyer acts in accordance with a supervisory
lawyer’s reasonable resolution of an arguable question
of professional duty.
Note that paragraph (b) is very narrowly construed; after the
decision in Daniels v. Alander, 844 A.2d 184 (Conn. 2006),
Connecticut repealed its (b). This Rule was not changed by the
recent SJC revisions.
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Rule 1.7:Conflicts of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not
represent a client if the representation involves a concurrent conflict
of interest. A concurrent conflict of interest exists if:
(1) The representation of one client will be directly adverse to
another client; or
(2) there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer’s responsibilities to
another client, a former client, or a third person or by a personal
interest of the lawyer.
This rule has been rearranged, moving both “direct adversity” conflicts and “material
limitation” conflicts to paragraph (a), and setting forth the circumstances under which
the representation can proceed notwithstanding the conflict in paragraph (b).
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Rule 1.7 (cont’d)
(b) Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one
client against another client represented by the lawyer in the same litigation
or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Subparagraph s (3) and (4) are new, and (4) adds a new substantive requirement
that consent be confirmed in writing, but it can be by simply sending an email to the
lawyer on the other side confirming consent given orally. Same requirement exists
for consents to former client conflicts.
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Mass. Bar. Assoc. Ethics Op. 02-02: Conflict of Interest
Lawyer represents Client X and Client Y simultaneously with respect to
permitting for development of adjoining land parcels.
After representations commenced Client X announced it plans to object to
Client Y’s permit application.
Issue: May lawyer continue to represent both, even though in representing
the client to whose permit the other client is objecting?
No, because lawyer will be adverse to Client X, when X opposes Y’s
application.
Will lawyer be able to continue representing one of the two clients?
Probably yes, Client Y, but in its permit application only.
“thrust upon” exception to the “hot potato” rule. Comment 5 to Rule 1.7.
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Communication with person represented by
counsel -- HYPOTHETICAL
General Counsel of Alpha Corp participates in trial alongside
outside counsel in bitter and protracted litigation against Beta
Corp. Alpha has made several offers of settlement to Beta’s
lawyer, all of which have been rejected or ignored.
During a recess in the trial, Jones, Beta’s CEO, who has
been attending the trial, approached Alpha’s GC in the
courthouse elevator bank and said to him:
“Why can’t we settle this case for $250,000? This trial
is costing both sides more than it’s worth.”
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Communication with person represented by
counsel (cont’d)
How should the GC respond to him?
“I agree. We’ve already offered terms with a total economic
value equivalent to your last demand, which I believe your
lawyer has not communicated to you.”
“If that’s the way you feel, why don’t you and Alpha’s CEO
get together without any lawyers present.”
“I can’t discuss the matter with you.”
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Rule 4.2: Communication with Person Represented by
Counsel
In representing a client, a lawyer shall not communicate
about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other
lawyer or is authorized by law to do so.
Commonly called the “no contact” rule, Rule 4.2 is designed to prevent an
opposing lawyer from circumventing counsel whom a counterparty in a
transaction or opposing party in a dispute has retained to represent her in
regard to a dispute, transaction or negotiation. It is one of the most litigated
Rules of Professional Conduct.
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Communication with person represented by counsel
(cont’d)
Later that same day the GC called Alpha’s CEO, saying,
“I think if you call Jones you can settle the case with him.
Tomorrow morning I will give you a brief outline of essential
settlement terms, a few bullet points describing how attractive
our offer is, and few ideas of how to appeal to Jones’ vanity and
his disinclination to spend money on lawyers.”
Is this advice by the GC to her client improper?
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Comment [4] to Rule 4.2
[4] …Parties to a matter may communicate directly with each other,
and a lawyer is not prohibited from advising a client concerning a
communication that the client is legally entitled to make. A lawyer
may not, however, make a communication prohibited by this Rule
through the acts of another. See Rule 8.4(a).
(emphasis added to show language added to the comment by the SJC)
ABA Formal Opinion 11-461 – SCEPR went overboard in permitting a
lawyer to script her client’s meeting with the other party. MBA Ethics Op.
11-03 would prohibit similar conduct. Massachusetts’ phrasing of its
Comment, by inverting the above two sentences and adding the word
“however” , qualifies the scope of this permissive comment to deter
overreaching.
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Rule 3.3: Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction
known to the lawyer to be directly adverse to the position of the client and not
disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false, except as provided in Rule
3.3(e). If a lawyer, the lawyer’s client , or a witness called by the lawyer, has
offered material evidence and the lawyer comes to know of its falsity, the
lawyer shall take reasonable remedial measures , including if necessary,
disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the
testimony of a defendant in a criminal matter, that the lawyer reasonably
believes is false …
(emphasis added to show new language in rule))
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Rule 3.3: Candor Toward the Tribunal (cont’d)
(b) A lawyer who represents a client in an adjudicative proceeding and who
knows that a person intends to engage, is engaging or has engaged in
criminal or fraudulent conduct related to the proceeding shall take
reasonable remedial measures, including, if necessary, disclosure to the
tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of
the proceeding, including all appeals, and apply even if compliance
requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all
material facts known to the lawyer that will enable the tribunal to make an
informed decision, whether or not the facts are adverse.
(emphasis added to indicate new language)
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Rule 3.3: Candor Toward the Tribunal (cont’d)
(e) In a criminal case, defense counsel who knows that the defendant, the
client, intends to testify falsely may not aid the client in constructing false
testimony, and has a duty strongly to discourage the client from testifying
falsely, advising that such a course is unlawful, will have substantial adverse
consequences, and should not be followed.
(1) If a lawyer discovers this intention before accepting the representation of the
client, the lawyer shall not accept the representation;
(2) If, in the course of representing a defendant prior to trial, the lawyer
discovers this intention and is unable to persuade the client not to testify falsely,
the lawyer shall seek to withdraw from the representation…. Disclosure of
privileged or prejudicial information shall be made only to the extent necessary
to effect the withdrawal….ex parte to a judge other than the judge who will
preside at the trial….If the lawyer is unable to obtain the required permission to
withdraw, the lawyer may not prevent the client from testifying.
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Rule 3.3: Candor Toward the Tribunal (cont’d)
(3) If a criminal trial has commenced and the lawyer discovers that
the client intends to testify falsely at trial, the lawyer need not file a
motion to withdraw from the case if the lawyer reasonably believes
that seeking to withdraw will prejudice the client. If, during the
client's testimony or after the client has testified, the lawyer knows
that the client has testified falsely, the lawyer shall call upon the
client to rectify the false testimony and, if the client refuses or is
unable to do so, the lawyer shall not reveal the false testimony to
the tribunal. In no event may the lawyer examine the client in such a
manner as to elicit any testimony from the client the lawyer knows
to be false, and the lawyer shall not argue the probative value of the
false testimony in closing argument or in any other proceedings,
including appeals. [rule the same as prior to SJC’s recent revisions]
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Comments to Rule 3.3
[1] This Rule governs the conduct of a lawyer who is representing a client
in the proceedings of a tribunal. See Rule 1.0(p) for the definition of
“tribunal.” It also applies when the lawyer is representing a client in an
ancillary proceeding conducted pursuant to the tribunal’s adjudicative
authority, such as a deposition….
[8] The prohibition against offering false evidence only applies if the lawyer
knows that the evidence is false. A lawyer’s reasonable belief that evidence
is false does not preclude its presentation to the trier of fact. A lawyer’s
knowledge that evidence is false, however, can be inferred from the
circumstances. See Rule 1.0(g). Thus, although a lawyer should resolve
doubts about the veracity of testimony or other evidence in favor of the
client, the lawyer cannot ignore an obvious falsehood. …
These comments, from the Model Rules, were added in the SJC’s recent revision
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Origins of the exception for testimony of a criminal
defendant in the last sentence of Rule 3(a)(3)
Nix v. Whiteside, 475 U.S. 157 (1986)
Stevens, J., concurring in the judgment.
Justice Holmes taught us that a word is but the skin of a living
thought. A "fact" may also have a life of its own. From the
perspective of an appellate judge, after a case has been tried and
the evidence has been sifted by another judge, a particular fact may
be as clear and certain as a piece of crystal or a small diamond. A
trial lawyer, however, must often deal with mixtures of sand and
clay. Even a pebble that seems clear enough at first glance may
take on a different hue in a handful of gravel.
As we view this case, it appears perfectly clear that respondent
intended to commit perjury ….
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Nix v. Whiteside, Justice Stevens’ Concurrence
(cont’d)
…Nevertheless, beneath the surface of this case there are areas of
uncertainty that cannot be resolved today. A lawyer's certainty that
a change in his client's recollection is a harbinger of intended
perjury - as well as judicial review of such apparent certainty should be tempered by the realization that, after reflection, the most
honest witness may recall (or sincerely believe he recalls) details
that he previously overlooked... [O]ne can be convinced - as I am that this lawyer's actions were a proper way to provide his client
with effective representation without confronting the much more
difficult questions of what a lawyer must, should, or may do after his
client has given testimony that the lawyer does not believe. The
answer to such questions may well be colored by the particular
circumstances attending the actual event and its aftermath.
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Mass Rule 8.5: Disciplinary Authority; Choice of Law
(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is
subject to the disciplinary authority of this jurisdiction, regardless of where
the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also
subject to the disciplinary authority of this jurisdiction if the lawyer provides
or offers to provide any legal services in this jurisdiction. A lawyer may be
subject to the disciplinary authority of both this jurisdiction and another
jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this
jurisdiction, the rules of professional conduct to be applied shall be as
follows:
(1) for conduct in connection with a matter pending before a governmental
tribunal, the rules of the jurisdiction in which the tribunal sits, unless the
rules of the tribunal provide otherwise; and
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Rule 8.5 (Cont’d.)
(2) for any other conduct, the rules of the jurisdiction in which
the lawyer's principal office is located shall be applied, unless
the predominant effect of the conduct is in a different
jurisdiction, in which case the rules of that jurisdiction shall be
applied. A lawyer shall not be subject to discipline if the
lawyer’s conduct conforms to the rules of a jurisdiction in
which the lawyer reasonably believes the predominant effect
of the lawyer’s conduct will occur. (Emphasis added)
Instead of underscored text, The ABA Model Rule has “in which the
lawyer’s conduct occurred”. This Rule was not changed in the
recent SJC revision.
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Playing by the Massachusetts Rules
of Professional Conduct, (as revised
by the SJC effective 1 July 2015)
J. Charles Mokriski
Professional Responsibility
Counsel
Proskauer Rose LLP
5 August 2015
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