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S E M I N A R

Ethics from the Trenchesfor Law Firms

C H A I R

F A C U L T Y

Debra A. Squires-Lee

Christopher R. Blazejewski

Gary M. Ronan

Mary B. Strother

M C L E®Keep raising the bar.

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S E M I N A R

Ethics from the Trenches for Law Firms

C H A I R

Debra A. Squires-Lee, Esq. Sherin and Lodgen LLP, Boston

F A C U L T Y

Christopher R. Blazejewski, Esq. Sherin and Lodgen LLP, Boston

Gary M. Ronan, Esq. Goulston & Storrs, PC, Boston

Mary B. Strother, Esq. Office of the Attorney General, Commonwealth of Massachusetts

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About the Faculty DEBRA SQUIRES-LEE is a partner in the litigation department of Sherin and Lodgen LLP in Boston. She is cochair of the business litigation and professional liability practice groups and cochair of the firm’s mentoring committee. Ms. Squires-Lee is a member of the Commonwealth’s Board of Bar Examiners and is a cochair of the Boston Bar Association’s business and commercial litigation section. She concentrates on legal malpractice defense and complex commercial litigation, defending lawyers and law firms in professional malpractice cases and before the Board of Bar Overseers and companies throughout New England in “bet the company” litigation, including defense of trade secret misappropriation claims, complex contract disputes, and claims for violation of Chapter 93A. Ms. Squires-Lee obtained her B.A., magna cum laude, from Cornell University and her J.D., summa cum laude, from New York University School of Law. She wrote for the New York University Law Review and was a member of the Order of the Coif while attending New York University School of Law. Prior to join-ing Sherin and Lodgen, Ms. Squires-Lee worked in the litigation department of WilmerHale in Boston and was with the Boston firm of Hill & Barlow, PC. Fol-lowing law school, she clerked for the Honorable Michael B. Mukasey, U.S. District Court for the Southern District of New York.

CHRISTOPHER R. BLAZEJEWSKI is a partner in the litigation department at Sherin and Lodgen LLP in Boston. He focuses his practice on business disputes, legal malpractice, and complex commercial litigation. Licensed in Massachu-setts and Rhode Island, Mr. Blazejewski shares his time at both the Boston and Providence offices, representing clients in state and federal courts in both states, as well as in alternative dispute resolution, including pre-litigation negotiation, mediation, and arbitration. Prior to joining the Sherin and Lodgen, he worked in the litigation department of Choate, Hall & Stewart LLP in Boston. Previously, he served as a judicial clerk for the Rhode Island Supreme Court Clerk’s Office and as a teaching fellow in the faculty of arts and sciences at Harvard College. Mr. Blazejewski is a graduate of Harvard College (A.B. 2002) and Harvard Law School (J.D. 2005). He has been named a SuperLawyers “Rising Star.”

GARY M. RONAN is a director in Goulston & Storrs’ Boston office. Advocat-ing for and advising clients on zoning, leasing, permitting, and other real estate matters, defending lawyers and law firms in malpractice cases and providing legal ethics advice, and representing employers in discrimination, employment contract, and other employment matters are the cornerstones of Mr. Ronan's practice. He also handles appellate matters for clients, represents parties in intra-entity disputes and complex commercial litigation, advises clients concerning licensing issues, and advocates for clients in trust and estate litigation matters. In addition to being a director in the litigation group, Mr. Ronan serves as the

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firm's assistant general counsel. In that capacity, he advises the firm and its members on matters of professionalism and risk management. He is a graduate of Yale University (B.A. 1997) and Georgetown University Law School (J.D., summa cum laude, 2002).

MARY B. STROTHER is the first assistant attorney general in the Office of the Attorney General for the Commonwealth of Massachusetts. Previously, she was special counsel in the litigation department of WilmerHale’s Boston office and served as deputy general counsel for the firm, working with the ethics commit-tee and assisting with risk management issues. Ms. Strother focused her practice on general commercial litigation. She is a member of the Boston Bar Associa-tion ethics committee. Ms. Strother served on the Massachusetts Board of Bar Overseers from 2010–15 and was chair from 2014–15. She is a 1994 graduate of Columbia University School of Law and received an A.B. in English from Princeton University in 1990.

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Table of Contents Ethics from the Trenches for Law Firms.............................................. 1 When a Colleague Becomes Impaired: Obligations of Lawyers and Law

Firms as to Incapacitated Partners or Associates ............................................ 3

Measures to Take Following ‘RFF Family Partnership’ ................................. 7

‘Markham Concepts v. Hasbro’: From Mr. Potato Head to Hot Potato .......... 9

Is ‘Hot Potato Doctrine’ Now Applicable in Massachusetts? ....................... 11

Ethical Withdrawal from Representation ...................................................... 13

Caveat Venditor: Traps Await Lawyers Selling Unbundled Services .......... 15

How to Avoid a Fee Dispute with Your Client ............................................. 17

Prosecutor’s Admission in Ferguson Case Troubling in Many Ways .......... 19

For Law Firms, Rogue Attorneys Present Risk............................................. 21

Firms Need to Provide New Lawyers with Clear Ethical Guidance ............. 23

Mentoring to Avoid Malpractice................................................................... 25

Massachusetts Rules of Professional Conduct .............................................. 27 Preamble and Scope .................................................................................. 28 Client-Lawyer Relationship ...................................................................... 33 Counselor .................................................................................................. 88 Advocate ................................................................................................... 91 Transactions with Persons Other Than Clients ....................................... 105 Law Firms and Associations ................................................................... 108 Public Service ......................................................................................... 117 Information About Legal Services .......................................................... 121 Maintaining the Integrity of the Profession ............................................. 126

Additional Reading ..................................................................................... 131

ETHICS FROM THE TRENCHES FOR LAW FIRMS

Debra A. Squires-Lee, Esq. Sherin and Lodgen LLP, Boston

Christopher Blazejewski, Esq. Sherin and Lodgen LLP, Boston

Gary M. Ronan, Esq. Goulston & Storrs, PC, Boston

Mary B. Strother, Esq. Wilmer Cutler Pickering Hale and Dorr LLP,

Boston

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MASSACHUSETTS

Volume 41 Issue No. 39

July 22, 2013

Measures to take following ‘RFF Family Partnership’By Debra Squires-Lee and R. Victoria Fuller

In RFF Family Partnership, LP v. Burns & Levinson, LLP, et al., the Supreme Judicial Court ruled that confidential com-munications between a law firm’s in-house counsel and the firm’s attorneys concerning a potential malpractice claim were privileged and not subject to disclosure to the client in a later malpractice suit if four factors were met.

Massachusetts is the first court of ultimate jurisdiction to consider the issue. The SJC provided clear guidance to law firms about when and under what circumstances the priv-ilege would apply. Under the RFF four-factor test, the privi-lege attaches when:(1) The law firm has designat-

ed, either formally or infor-mally, an attorney or attor-neys within the firm to rep-resent the firm as in-house or ethics counsel;

(2) The in-house counsel did not perform any work on the particular client matter at issue or a substantially related matter;

(3) The time spent by the at-torneys in the communica-tions with in-house counsel is not billed or charged to any outside client; and

(4) The communications are

made in confidence and kept confidential.

Thus, while the SJC’s opinion provides comfort to law firms and to lawyers seeking legal advice from their in-house counsel, given the specificity of the RFF test, firms should take certain measures to ensure that the privilege attaches and that communications are protected.

Practice management pointers

— Clearly designate in-house ethics counsel. Al-though the SJC indicated that a law firm may “informally” designate ethics counsel, firms should unambiguously identify their designated ethics counsel both internally and externally. For example, include the attor-ney’s role as ethics counsel on his or her internal and external bio. That ensures that the firm’s attorneys know who to turn to for legal advice and may fore-stall future challenges to the privilege by potentially adverse clients based on the role of the attorney consulted. Also, when there are time pressures pre-sented by a potential claim of malpractice, for example a re-quest for a tolling agreement, having a previously clearly designated in-house counsel avoids uncertainty and delay.

— Designate multiple in-house ethics counsel. Under the second prong of the RFF test, the in-house ethics coun-sel cannot have performed any work on the client matter or a substantially related matter. Most in-house counsel at law firms are not exclusively firm counsel and continue to prac-tice in their fields, and there is a real possibility in-house counsel worked on the client matter at issue. Thus, if there is only one designated in-house ethics counsel, a firm runs the risk that he or she will be con-flicted out of providing priv-ileged legal advice. While the firm can specially designate another lawyer to provide ad-vice in that circumstance, it

may be more efficient, and saf-er, for the firm to have desig-nated a deputy in-house gener-al counsel. Having a designat-ed deputy will avoid confusion; loss of the privilege if someone inadvertently communicates with in-house counsel who did work for the client; and delay in getting necessary advice.

— Establish a billing code specific to discussions with in-house ethics counsel. Law firms should create a billing code used only for (a) dis-cussions with in-house ethics counsel; and (b) the provision of legal services and advice to the firm by in-house coun-sel. Separate tracking will en-sure that time spent consulting with in-house counsel was not billed to a client, and there will be no question that the third prong of the RFF test is met.

— Maintain strict confiden-tiality. Like any privileged re-lationship, consultation with a firm’s in-house ethics counsel should be kept in the strictest of confidence. Only firm attor-neys who need to know should be involved in the communica-tions, and the firm should en-sure that the in-house ethics counsel is present for all com-munications concerning the matter. For example, if anoth-er attorney with expertise in a particular substantive area of law must be consulted, ethics counsel must be present for all conversations with that law-yer and copied on all written communications. Similarly, in-house ethics counsel’s paper files should be segregated from the firm’s main client files and kept in a locked file drawer. In-house counsel’s electronic files either should not be kept on the firm’s shared document management system, or should be password protected. Finally, to avoid an inadvertent loss of the privilege, it would be good practice to include a confiden-tial/privileged notation on all written work product generat-ed by in-house counsel, and to include the same tag on emails sent to or from in-house

counsel concerning a poten-tial claim.

— Train, train, train. Law firms should develop a proce-dure to follow when a poten-tial client conflict arises, and should hold periodic trainings for all attorneys on that pro-cedure. Younger attorneys, in particular, should be trained to go directly to in-house coun-sel with any concerns about a potential conflict (and not to a mentor with whom they feel comfortable). If a younger law-yer approaches his or her men-tor, the mentor should recog-nize the need to involve in-house counsel. Likewise, at-torneys should be trained to maintain strict confidentiali-ty even within the firm, since the privilege attaches only to communications with in-house counsel and not with oth-er lawyers.

— Jurisdictional consider-ations. RFF Family Partner-ship applies only in Massachu-setts, and it remains unclear in many jurisdictions wheth-er the attorney-client privilege protects discussions with in-house ethics counsel (or worse, some courts have held that no privilege attaches). As a result, law firms and their in-house ethics counsel should keep in mind and consider the poten-tial that the client might pur-sue its grievance in any juris-diction other than a Massachu-setts court and act accordingly — perhaps even by consulting outside counsel immediately and including outside counsel in all discussions.

The SJC’s decision in RFF Family Partnership will result in the provision of better legal services both to clients and the law firms that serve them. It should also provide some relief to lawyers who have to balance their ethical and fiduciary ob-ligations. The four-part formu-la appropriately balances the concerns of clients and attor-neys and, hopefully, will be ad-opted by other jurisdictions in time.

SQUIRES-LEE

Debra Squires-Lee is a partner at Sherin & Lodgen in Boston, where she co-chairs the firm’s pro-fessional liability practice group. She defends lawyers and law firms in the defense of legal malpractice matters. R. Victoria Fuller is an attorney at Boston’s Rose, Chinitz & Rose. Her practice focuses on le-gal malpractice defense, business litigation, and employment litiga-tion and counseling.

FULLER

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RHODE ISLAND

By Christopher R. Blazejewski

My law partners recently analyzed in Massachusetts Lawyers Weekly the im-pact of the Massachusetts Supreme Judicial Court’s decision in Bryan Corp. v. Abrano, 475 Mass. 504 (June 14, 2016), in establish-ing — if all but in name only — the “hot potato” doctrine in that state.

Five weeks later, the U.S. District Court in Rhode Island in Markham Concepts v. Hasbro issued an important decision on the same issue. There, Hasbro — the compa-ny that created the child’s toy “Mr. Potato Head” — played a critical role in reinforc-ing the hot potato doctrine in Rhode Island.

The Hasbro court held that, under the Rhode Island Rules of Professional Con-duct, a law firm could not circumvent its duties to a current client by dropping the client “like a hot potato” solely in order to take on representation of a new (and likely more lucrative) client with interests that are directly adverse to the original client.

In issuing the decision, the judge out-lined an approach the Rhode Island Su-preme Court might take if confronted with adopting the hot potato doctrine in Rhode Island.

The facts of the case are fairly straight-forward. In December 2008, Hasbro hired a law firm to provide it with advice on sales and charitable promotion laws. Hasbro and the law firm executed an engagement let-ter stating, among other things, that Hasbro could not unreasonably withhold a conflict waiver under certain conditions.

In August 2011, the law firm’s representa-tion of Hasbro expanded to include intellec-tual property work, such as patent prosecu-tions. In February 2016, the law firm pitched Hasbro on continuing to grow their relation-ship and providing additional legal services.

Shortly thereafter, on March 7, the law firm informed Hasbro that it intended to hire two attorneys who represented plain-tiff Markham Concepts in a breach of con-tract and intellectual property action filed against Hasbro back in October 2015. The law firm asked Hasbro for a conflict waiv-er so that it could represent Markham Con-cepts against its then-current client Hasbro. Hasbro refused.

Within days, on March 11, the firm noti-fied Hasbro that it was terminating its rep-resentation. Five days later, the firm hired the two attorneys and began representing Markham Concepts in the lawsuit adverse to Hasbro.

Hasbro then moved to disqualify the law firm from representing Markham Concepts in the case.

In adjudicating the motion, the judge be-gan by deciding whether Hasbro was a cur-rent or former client of the law firm. Rule 1.7 of the Rhode Island Rules of Profes-sional Conduct applies to current clients and is more restrictive of lawyers, while Rule 1.9 applies to former clients and is less restrictive.

Rule 1.7 states that a lawyer shall not rep-resent a client if, among other things, the representation will be directly adverse to an-other client. Rule 1.7 may be waived only if (1) the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to each affected cli-ent; (2) the representation is not prohibit-ed by law; (3) the representation does not involve the assertion of a claim by one cli-ent against another client represented by the lawyer in the same proceeding; and (4) each affected client gives informed writ-ten consent.

By contrast, Rule 1.9 states, among oth-er things, that a lawyer shall not knowingly represent a client adverse to a former client in the same or substantially related matter in which the lawyer had represented the for-mer client, absent informed, written con-sent. It also states that a lawyer shall not re-veal or use to its disadvantage the former client’s confidential information.

In adopting the hot potato doctrine, the judge decided that Hasbro should be treated as a current client based on the Rule of Pro-fessional Conduct and case law. The judge reasoned that deciding otherwise would undermine Rule 1.7 by allowing a lawyer simply to drop the client when a new, more promising but directly adverse client ap-pears on the horizon in order to take advan-tage of the less stringent Rule 1.9.

The judge did not, however, rule that the law firm’s representation of Markham

‘Markham Concepts v. Hasbro’: from Mr. Potato Head to hot potato

Volume 37Issue No. 39

September 26, 2016

Christopher R. Blazejewski is a partner at Sherin & Lodgen where he specializes in pro-fessional liability, attorney ethics counseling, and legal malpractice defense in Rhode Island and Massachusetts.

Christopher R. Blazejewski

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Reprinted with permission from Lawyers Weekly, 10 Milk Street, Boston, MA 02108. (800) 444-5297 © 2017 #02274

Concepts was a violation of the hot potato doctrine per se. Rather than automatical-ly disqualifying the firm, the judge stated that he “must carefully examine the facts underlying the conflict situation” and “the specific ethical dilemma presented by the circumstances,” including “the prejudice the non-moving party would face should the court disqualify the client’s attorney.”

After analyzing the facts of the case, the judge granted Hasbro’s motion and dis-qualified the law firm. He found that the conflict was particularly egregious because the law firm knew there was a conflict, could have avoided the conflict by not hir-ing the lawyers, hired the lawyers anyway, and terminated its relationship with Has-bro solely in order to take on Markham Concepts as a client in litigation adverse to Hasbro.

While the judge considered the law firm’s argument that disqualification would prej-udice Markham Concepts, he said he did not believe the prejudice sufficient to over-ride the firm’s duty of loyalty to Hasbro.

Hasbro provides important guidance for law firms that may, at some point, seek to

represent a new client in a matter that is or may become adverse to a current client.

Specifically, the judge suggested that the en-gagement letter between the current client and law firm may be a key deciding factor: “The Court can imagine some instances where a client’s refusal to waive a conflict, for exam-ple, where the stated conditions in a retain-er agreement are met, could be unreasonable and warrant denial of a disqualification mo-tion. This, however, is not such an instance.”

In Hasbro, the judge was unmoved by the conflicts language in the engagement letter because he found that the firm did not meet the conditions for waiver under terms of the letter, and that Hasbro was permitted under the engagement letter to refuse to consent to the waiver.

Under different circumstances, however, with less egregious facts, the conflicts lan-guage in the engagement letter might have led to a different result.

What is the takeaway? Law firms should consider including in their engagement let-ters a provision dealing with potential con-flicts, advance waivers of conflict, and the firm’s right to withdraw from the represen-tation should a conflict arise.

The Hasbro case suggests that a law firm may be permitted to proceed with repre-sentation and protect itself from disqualifi-cation when (1) the law firm cannot avoid the conflict; (2) the matter involving the conflict is unrelated to the work performed by the law firm for the client; and (3) the engagement letter states the circumstanc-es under which the law firm can withdraw if the client unreasonably withholds a con-flict waiver.

Even with such language in the engage-ment letter, however, the lesson for lawyers from Hasbro is clear: When it comes to tak-ing on representation directly adverse to current clients, don’t unfairly turn Mr. Pota-to Head into a hot potato.

2 • Rhode Island Lawyers Weekly September 26, 2016

Under different circumstances, with less egregious facts, the conflicts language in the engagement letter might have led to a different result.

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MASSACHUSETTS

Volume 45Issue No. 27

June 30, 2016

By Thomas F. Maffei and Jessica Gray Kelly

In an important new decision, the Supreme Judicial Court has held that “a law firm may not un-dertake representation of a new cli-ent where the firm can reasonably anticipate that a conflict will de-velop with an existing client, and then choose between the two cli-ents when the conflict materializ-es.” Bryan Corporation v. Abrano, 475 Mass. 504 (June 14).

Although the SJC stated that it was not adopting the “hot potato doctrine,” which other courts have used to limit a lawyer’s ability to “drop” one client in favor of anoth-er client, the court’s reasoning and analysis leads to the conclusion that the hot potato doctrine now applies in Massachusetts.

The facts of the case are straight-forward. Bryan Corp. is a close-ly held company with three share-holders, one of whom owned 51 percent of the company. In March 2014, the company’s treasurer and outside legal counsel retained the law firm to defend the company in a collection action. The law firm and the company executed an en-gagement letter. The law firm an-swered the complaint, began draft-ing discovery requests and re-sponses, and reviewed documents on behalf of the company.

Shortly after the firm began working on the collection case, a dispute erupted between the two minority shareholders and the ma-jority shareholder of the company.

On June 30, 2014, the company’s treasurer (who also was the hus-band of one of the minority share-holders) called the law firm to dis-cuss “a different matter” from the collection action. That different matter arose in late June when the majority shareholder stopped pay-ment of the minority’s 2014 prof-it distribution.

The minority owners claimed that the majority shareholder was engaging in a “freeze out” and had violated the Massachusetts

Wage Act. During a call the next day, the

law firm explained that, if the dis-pute was not resolved, it could rep-resent the minority shareholders but, because there would be a con-flict of interest, the law firm would have to withdraw from represent-ing the company in the collec-tion action.

That same day the minori-ty shareholders began demand-ing payment of their share of the 2014 profits.

The intra-company dispute was not resolved. At a July 15, 2014, board meeting, the majority share-holder elected a new board of di-rectors, and it became clear that the shareholders were not going to resolve their dispute.

The law firm agreed to represent the minority shareholders against the company and the majori-ty shareholder.

A week later, on July 21, the law firm sent a letter to the majority shareholder and the company on behalf of the minority shareholders demanding payment of the year-end profits. The firm sent the com-pany a letter two days later with-drawing as counsel in the collec-tion action and offering to assist in transferring the collection case file to other counsel. The law firm for-mally withdrew from the collection action on July 31, 2014.

Eight months later, in the ensu-ing shareholder litigation, the ma-jority shareholder moved to dis-qualify the law firm, which was at that point representing only one of the minority shareholders.

The motion argued that the three-week long simultaneous rep-resentation of the company in the collection action and the minori-ty shareholders in the shareholder dispute was an impermissible con-flict of interest under Rule 1.7.

The Superior Court allowed the motion. The SJC took the case on direct appellate review.

As framed by the court, the key issue was whether the law firm “should have known at the time it agreed to represent the minority

shareholders, that their interests were adverse to, or were likely soon to become adverse to, those of the company.”

The SJC answered that question in the affirmative and concluded that the law firm violated the duty of loyalty under Rule 1.7, which re-quired it either to decline represen-tation or to seek the informed con-sent of the company prior to repre-senting the minority shareholders.

Analyzing Rule 1.7 and case law, the court reiterated that the duty of

loyalty prevents a lawyer from rep-resenting a client if the representa-tion is “directly adverse to another client” or when there is a “signifi-cant risk” that the representation will be “materially limited” by the lawyer’s responsibilities to another client, and emphasized the impor-tance of trust between the lawyer and client — even when the client is a corporation.

The SJC wrote that it was imma-terial whether the minority share-holders became clients of the law firm on July 1 — when the minori-ty shareholders first called the law firm about the shareholder dispute — or on July 15 – when the ma-jority shareholder voted in a new board of directors.

In the court’s view, it was clear that the minority shareholders were directly adverse to the com-pany when they demanded the checks they believed the company had a legal obligation to pay.

At that point, the SJC said, the law firm had two options: seek consent from the company or de-cline the representation of the mi-nority shareholders.

What the court did not mention was a potential third option: Before undertaking to represent the mi-nority shareholders, the law firm could have withdrawn from rep-resenting the company in the col-lection action under Rule 1.16 (b)(1), governing withdrawals, so long as its withdrawal would not cause any “material adverse effect” on the company. Once it with-drew from the collection action, the firm could have been adverse

to the company, as a former client, under Rule 1.9, since there was no substantial relationship between the collection action and the share-holder dispute.

That, apparently, is what the law firm intended after concluding that the collection action was a very discrete matter, that it had been representing the company in that matter for only three months, and that the two matters were com-pletely unrelated.

Rather than recognizing the third option, the SJC held that “it was improper for [the law firm] to withdraw prior to the comple-tion of the [collection] action” in order to represent the minori-ty shareholders.

By basing its decision solely on the duty of loyalty, the court did not consider the parties’ arguments relating to Rule 1.9 or that the law firm’s withdrawal from the collec-tion action had no “material ad-verse” effect on the company. In other words, even if the law firm had complied with its obligations under Rules 1.9 and 1.16, the brief simultaneous representation merit-ed disqualification.

The only conclusion from the SJC’s holding is that the “hot pota-to doctrine” now applies with full force in Massachusetts and that lawyers are never free to withdraw from representation — even when there is no material adverse effect on the current client — in order to take on a new client that is, or may become, adverse to the cur-rent client.

Assuming that doctrine now ap-plies to Massachusetts lawyers, it might have been preferable to make the new rule apply prospec-tively, thereby allowing the minori-ty shareholder in Bryan Corpora-tion to continue with counsel of his choice, another strong policy con-sideration for the courts.

The court’s seemingly blanket prohibition on withdrawing from one client to take on another client, where the withdrawal is required to avoid a conflict, is, perhaps, tempered by the SJC’s reference to the absence of anything in the law firm’s engagement letter that would have permitted a withdrawal.

Based on that comment, law firms would be well-advised to in-clude in their engagement letters a provision dealing with poten-tial conflicts and the firm’s ability to withdraw from the representa-tion should a conflict arise. Such a provision may protect the law firm from disqualification.

The only conclusion from the SJC’s holding is that lawyers are never free to withdraw from representation — even when there is no material adverse effect on the current client — in order to take on a new client that is, or may become, adverse to the current client.

Is ‘hot potato doctrine’ now applicable in Massachusetts?

Thomas F. Maffei and Jessica Gray Kelly practice at Sherin & Lodgen in Boston, where they represent lawyers and law firms in professional liabili-ty and bar discipline cases.

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MASSACHUSETTS


August 17, 2015

Caveat venditor: traps await lawyers selling unbundled servicesBy Christopher Blazejewski and Debra Squires-Lee

Lawyers hoping to cut costs to sat-isfy market demand for low-price le-gal services may be tempted to sell “un-bundled” services. Unbundled, or lim-ited-scope, representation allows an at-torney to provide highly discrete legal services to a client without taking on an entire matter. The goal is to restrict an attorney’s time and fees.

Under such arrangements, a narrow slice of the matter is handled by the at-torney, leaving the rest for the client to handle on his own. While unbun-dled representation might prove useful for handling certain matters (e.g., the drafting of basic corporate documents), it may not be appropriate for others (e.g., anonymously writing pleadings in litigation).

Before offering unbundled services, attorneys should be aware of the risks. Limited representation does not neces-sarily mean limited liability.

Allowed — with conditionsThe rules of professional conduct in

Massachusetts and Rhode Island permit unbundled representation. Rule 1.2 of the Massachusetts Rules of Professional Conduct, effective as of July 1, states, “A lawyer may limit the scope of the repre-sentation if the limitation is reasonable under the circumstances and the cli-ent gives informed consent.” Massachu-setts Rule 1.2 now matches Rule 1.2 of the Rhode Island Rules of Professional Conduct. Both provide that (1) the lim-ited-scope representation must be rea-sonable and (2) the client must give in-formed consent.

Under the rules, lawyers in both states have practiced “ghostwriting,” a partic-ular form of limited-scope representa-tion by which an attorney agrees to draft a complaint, answer, counterclaim, mo-tion, or other court document for a cli-ent, while at the same time agreeing not to enter an appearance in the action. The client handles all other aspects of the lit-igation, including hearings and deposi-tions, as a pro se litigant.

A June decision of the Rhode Island Supreme Court highlights some of the risks attorneys run when selling such a la carte legal services to their clients. In

FIA Card Services, N.A. v. Pichette, the court reviewed three unrelated cases where trial court judges had sanctioned attorneys under Rule 11 for ghostwrit-ing pleadings for pro se litigants without entering appearances in the actions.

A lawyer’s signature under Rule 11 amounts to a statement by the lawyer that the pleading is brought in good faith and is not frivolous. After consid-ering the particular cases of the three attorneys, the court reversed the tri-al court’s sanctions, finding that Rule 11 did not apply to the drafting assis-tance provided by the non-signato-ry attorneys.

The justices went on to consider more broadly the practice of ghostwriting and unbundled representation of pro se lit-igants. The court declared that an at-torney may provide legal assistance to litigants appearing pro se before the court, provided that (1) the scope of the attorney’s representation is reason-able; and (2) the litigant gives informed consent in writing that sets forth “the nature and extent of the attorney-cli-ent relationship.”

Regarding ghostwriting, however, the court declared that, going forward, an attorney may not assist a pro se litigant with the drafting of pleadings, motions or other written submissions unless the attorney (1) signs the pleading; (2) dis-closes on the pleading, to the tribunal, and to all parties to the litigation her identity and the nature and extent of the assistance that he or she is providing to the pro se litigant; and (3) indicates, if applicable, that her signature does not constitute an entry of appearance.

The court in effect ended the practice of ghostwriting in Rhode Island, de-spite recognizing the hard reality that “for many litigants the choice is not be-tween unbundled representation and full representation; it is between unbun-dled representation and no representa-tion at all.”

Massachusetts, on the other hand, continues to allow ghostwritten plead-ings, motions and other court docu-ments. According to the Massachusetts Supreme Judicial Court’s 2009 Order on Limited Assistance Representation, at-torneys may provide anonymous assis-tance in the preparation of documents filed with the court if the documents state that they were “prepared with as-sistance of counsel.”

For anything more than the prepara-tion of documents — for example, at-tendance at a deposition or hearing — attorneys are required to file a limited notice of appearance with the Court. As in Rhode Island, Massachusetts at-torneys engaging in limited-scope rep-resentation under Rule 1.2 should get the client’s consent in writing after con-sultation as part of the written engage-ment letter and should assess whether the representation is reasonable under the circumstances.

Risky business?When providing limited-scope rep-

resentation, the consequences of fail-ing to follow the particular rules

concerning ghostwriting are just the tip of the iceberg.

Unbundled representation may in-crease the risk of being sued for mal-practice in certain circumstances. For example, if a pro se litigant is unsuccess-ful in court or faces an unexpected legal issue, he or she may sue the attorney for malpractice, even if any harm seeming-ly was caused by events occurring out-side the limited scope. The aggrieved client may say, “you should have warned me about that,” or “the document you drafted for me should have covered that issue,” or “it wasn’t my argument that lost in court, but your poorly draft-ed motion.”

While the attorney may have defens-es based, in part, on the limited scope of her representation, they may not be enough to avoid a lawsuit or protracted factual discovery. Furthermore, because the lawyer is involved in only a portion of the matter, she may not be able to ex-ercise the control necessary to avoid these situations. Dissatisfied clients may seek to hold the attorney responsible for the whole, even though her representa-tion was limited to a sliver.

Limited-scope representation also may increase the risk of inadvertent waiver of privilege. For example, law-yers drafting court documents in a lim-ited-scope representation should be aware that pro se litigants asked during a hearing or deposition why they assert-ed a particular counterclaim, affirmative defense, or legal argument, may say that they do not know and that they made the claim or allegation because their at-torney told them to do it.

Such an admission may open the door to waiver of privilege and factual inqui-ry directed at the attorney as to the ba-sis for the pro se litigant’s allegations. Furthermore, in making disclosures to the court or tribunal about her lim-ited-scope of representation — as re-quired in Rhode Island after FIA Card Services — the lawyer should be careful not to reveal attorney-client communi-cations, work product or any other in-formation that may disclose the client’s legal strategy.

Because the attorney-client relation-ship in limited-scope representation is not as seamless as in full representation, both the limited-scope attorney and client need to be aware of the pitfalls that can lead to an inadvertent waiver of privilege.

Finally, unbundled representation of-fers sundry opportunities for running afoul of rules of professional conduct. As the Rhode Island Supreme Court recognized in FIA Card Services, limit-ed-scope representation raises “myriad ethical and procedural concerns” relat-ed to, among other things, Rhode Island Rules of Professional Conduct 3.1 (mer-itorious claims), 3.3 (candor to the tri-bunal), 4.1 (truthfulness in statements to others), 4.3 (interactions with unrep-resented persons) and 8.4 (prohibiting conduct involving dishonesty, fraud, de-ceit, and misrepresentations).

For example, if the pro se litigant says

one thing in court, and his pleadings drafted by a limited-scope attorney as-sert something substantially different or even opposite — or if the pleadings state certain claims or defenses for which the pro se litigant can articulate no ba-sis during a hearing or deposition — the court may find that the limited-scope lawyer has committed an ethical vio-lation. Furthermore, opposing counsel in a case involving a pro se litigant us-ing the services of a limited-scope attor-ney may face uncertainty as to whether and when she may contact the litigant directly. Until bright lines are drawn in this emerging ethical landscape, attor-neys should proceed with caution.

Protect yourselfLawyers and law firms can do sever-

al things to decrease the risks associated with unbundled representation:

offering unbundled legal services to clients.

-diction’s requirements concerning un-bundled legal services and the rules for disclosing to the court, opposing counsel, and third parties any limit-ed-scope representation, including for ghostwriting.

whether providing unbundled legal services is reasonable under the cli-ent’s particular circumstances.

-ten engagement letter setting forth the client’s informed consent and agree-ment, after consultation, to the lim-ited scope of representation — and the fee structure. The agreement as to the limited scope of representa-tion should articulate what the attor-ney will and will not do on behalf of the client. The attorney should state in writing that the client should con-sult with separate counsel before sign-ing the engagement letter for limit-ed-scope representation.

If the client wants to expand or change the attorney’s role in the mat-ter, amend the engagement and scope of services agreement to provide in writing the terms of the amend-ed representation.

representation (i.e., after the attorney has provided to the client the enumer-ated legal services or deliverables), send the client a termination of repre-sentation letter stating that the repre-sentation is complete.

-viding limited-scope representation in the context of litigation.While these practice tips will help

avoid certain pitfalls arising from selling unbundled representation to cost-con-scious clients, they do not protect against every possible risk. As the courts continue to develop rules and require-ments for limited-scope representation, attorneys would be wise to continue to live by the mantra “caveat venditor:” seller beware. MLW

Christopher R. Blazejewski is a partner at Sherin and Lodgen LLP, specializing in professional liability, attorney ethics coun-seling, and legal malpractice defense in Massachusetts and Rhode Island.

Debra Squires-Lee is a partner in the Boston office of Sherin and Lodgen and co-chair of the firm’s professional liability practice group.

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MASSACHUSETTS

January 5, 2015

Debra A. Squires-Lee is a partner in theBoston office of Sherin & Lod-gen and co-chair of the firm’s pro-fessional liability prac-tice group. Christopher R. Blazejewski is anat-torney in the firm’s Boston and Prov-idenceoffices. Both specialize in pro-fessional liabilityand attorney ethics.

Prosecutor’s admission in Ferguson case troubling in many ways

By Debra A. Squires-Lee and Christopher R. Blazejewski

St. Louis County prosecutor Robert Mc- Culloch re-cently admit- ted that he submit-ted false testimo-ny to the grand jury that was con-sidering charges against Darren Wilson, the police officer who shot and killed Michael Brown in Fergu-son, Missouri.

McCulloch’s statements set

off a groundswell of social media commentary on the role of the prosecutor and a grand jury and the administration of justice — as well they should have. What has been lost, however, is the seemingly unabashed violation of a bedrock rule of legal eth-ics: Lawyers may not knowing-ly submit perjured testimony to a tribunal. Such conduct violates their sacrosanct duty of candor to the tribunal.

If McCulloch knew the testi-mony he was offering was false, then he arguably violated the rules of ethics.

McCulloch’s description of the false testimony he provided to the grand jury is troubling. Lying under oath on a material matter to a tribunal is the very definition of perjury.

In a recent interview, howev-er, McCul- loch said that “[t]here were people who came in and, yes, absolutely lied under oath.”

McCulloch seemed to excuse the use of perjured testimo-ny because he “thought it was much more important to pres-ent anybody and everybody” to the grand jury, and because false statements were made on both sides of the investi- gation. In

essence, McCulloch appeared to believe that the use of per-jured testimony was acceptable because he offered all the false statements without discrimi- na-tion, and because, in the end, it was the grand jury’s responsibili-

ty to sort it all out.According to McCulloch: “Just

like any jury, [the grand jury] can believe all, part or nothing of any witness testimony.”

McCulloch also disclaimed any intention of prosecuting any of the witnesses for perjury.

Those reasons for allowing wit-nesses to lie under oath do not meet legal ethical standards. Lawyers everywhere are gov-erned by rules of professional conduct, and Missouri is no ex-ception. The rules apply to all lawyers, including prosecutors and criminal defense lawyers.

Missouri lawyers are forbidden from engaging “in conduct that is prejudicial to the administra-tion of justice.” MO. R. PROF. C. 4-8.4(d). On the issue of perju-ry or fraud, the Missouri Rules of Professional Conduct, MO R. PROF C. 4-3.3(a), state:

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 mate-rial fact or law previously made to the tribunal by the lawyer;

…or(3) offer evidence that the law-

yer knows to be false. 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 re- medial measures, including, if necessary, disclosure to the tribunal. A lawyer may re-fuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer

reasonably believes is false.The rule could not be clearer:

A lawyer shall not knowingly of-fer evidence he or she knows to be false. The official comments further amplify the basis for the rule; it stems from the “special

duties of lawyers as officers of the court to avoid conduct that un-dermines the integrity of the ad-judicative process.”

A grand jury — an adjudica-tive body that renders a bind-ing legal decision on whether to indict — is entitled to the same duty of candor from prosecutor-sas a judge or jury at trial. MO. R. PROF.C. 4-1.0(m).

Under federal law, “[w]hoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined un-der this title or imprisoned not more than five years, or both.” 18 U.S.C. §1622.

While a lawyer’s ethical obliga-tion arises only when he or she “knows” the evidence is false, undert he Missouri rules, a law-yer’s knowledge of the falsity of the evidence presented can be in-ferred from the circumstances, and “the lawyer cannot ignore an obvious falsehood.”

Given McCulloch’s statements in his recent interview, it appears that he understood the evidence was false at the time he submitted it. He did not claim to have later learned of its falsity. To the con-trary, he states that he made a de-liberate decision to present “any-body and everybody,” including those who “absolutely lied un-der oath.”

As a matter of attorney ethics, if McCulloch knew the testimony was false when he offered it, he should not have done so.

An additional disheartening aspect of prosecutors using per-jured testimony in grand jury proceedings is that there is lit-tle recourse in court. Courts

typically have addressed the issue only when the proceeding results in an indictment and the defen-dant, showing actual prejudice, moves to quash the indictment.

While the 9th U.S. Circuit Court of Appeals has declared that “[p]ermitting a defendant to stand trial on an indictment which the government knows is based on perjured testimony can-not comport with [a required] fastidious regard for the honor of the administration of justice,” U.S. v. Basurto, 497 F.2d 781,786-87 (9th Cir. 1974), there is no ready solution where the use of perjured testimony results in no indictment.

McCulloch’s apparent breach of the rules of legal ethics further undermines the public’s faith in the criminal justice system. Per-jured testimony in a grand jury eviscerates trust in the adminis-tration of justice. Lawyers, as of-ficers of the court charged with presenting evidence, have the ethical duty to safeguard that the evidence they present is not knowingly tainted.

Whether or not use of perjured testimony in the Wilson case cor-rupted the grand jury’s deliber-ations (although it is difficult to imagine that it did not; after all, the premise behind criminalizing perjury is that it undermines the fair administration of justice), if McCulloch knew witnesses were lying, he had an affirmative, inde-pendent duty, as a member of the bar and an officer of the court, not to permit them to testify.

Abraham Lincoln said it best: Any lawyer choosing the profes-sion should “resolve to be hon-est at all events.” Honesty and integrity alone secure the just operation of our system of jus-tice, which lawyers are charged with upholding.

Proffering perjured testimo-ny is anathema to the rules of le-gal ethics and the rules that gov-ern our system of justice. An at-torney — an officer of the court whose highest duty is to justice as well as to his or her client — may notblithely offer false and per-jured testimony consistent with his professional ethical obliga-tions.

SQUIRES-LEE If St. Louis County prosecutor Robert McCulloch knew the testimony he was offering was false,then he arguably violated the rules of ethics.

BLAZEJEWSKI

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MASSACHUSETTS


October 20, 2014

For law firms, rogue attorneys present riskBy Christopher R. Blazejewski and William M. Dunham

A recent decision from a federal Dis-trict Court judge in the 1st Circuit should prompt all law firms to take a second look at how they supervise the lawyers who work for them.

The firm in Robert Smith v. RKelley-Law, P.C., C.A. No. 07-12067-RGS (D. Mass. Sept. 15) had judgment entered against it for the fraudulent and deceptive conduct of its associate — conduct it claimed it had no actual knowledge was occurring at its place of business.

A money judgment for vicarious liabili-ty is just one of the risks, however, that law firms run when they hire associates. The Rules of Professional Conduct in Massa-chusetts and Rhode Island make law firms and partners responsible for supervising subordinate attorneys to ensure they meet their ethical obligations.

How does a law firm ameliorate the risk from rogue lawyers? Law firms must de-velop safeguards both to avoid possible malpractice exposure and to make certain that their attorneys comply with legal and ethical requirements.

The circumstances in RKelley-Law should give every law firm pause.

Attorney Louis Bertucci started working at RKelley-Law, P.C., as an associate when he passed the bar exam in 2001. Among other things, his duties included conduct-ing real estate closings on behalf of the firm. He closed between 60 and 80 trans-actions a month. The firm earned a fee for each closing.

In 2005, Bertucci closed two real es-tate purchases for Robert Smith, a military veteran who worked as a trash collector and suffered from mental illness. While at work one day, Smith was approached by a real estate agent who invited him to par-ticipate in a real estate investment oppor-tunity. Smith agreed, showed up for two closings at RKelley-Law’s offices and, with-out realizing it, walked away with a whop-ping $800,000 in debt on two residential mortgages. The “straw buyer” transactions earned Bertucci and RKelley-Law thou-sands of dollars in fees.

The issue in RKelley-Law was whether the firm could be held liable for Bertucci’s

fraud and violations of G.L.c. 93A, the consumer protection act.

Although a jury returned a verdict for Smith, the District Court judge granted the law firm judgment as a matter of law. In essence, the judge held that unless the firm’s sole shareholder was involved, the firm was not responsible for the associate’s rogue conduct.

The 1st Circuit reversed and remanded, ruling that although the firm’s sole share-holder had no individual liability for Ber-tucci’s conduct, there was sufficient evi-dence to hold the firm vicariously liable.

On remand, the District Court applied Massachusetts’ familiar three-factor test for vicarious liability. Were the closings the type of work RKelley-Law employed Ber-tucci to perform? Did they occur at the time and place at which Bertucci was au-thorized to perform his work for the firm? Was Bertucci’s work on the closings moti-vated, at least in part, by a desire to serve RKelley-Law?

The judge found all three prongs satis-fied and held RKelley-Law liable.

The result in RKelley-Law is in keeping with prior decisions concerning vicarious liability of law firms. In Kansallis Finance Ltd. v. Daniel J. Fern, et al., 421 Mass. 659 (1996), the Supreme Judicial Court held that a law firm could be liable for a loan and leasing scheme by one of its partners even though the other partners had no knowledge of the scheme and had not par-ticipated in it.

The SJC said that the firm could be re-sponsible (i) if the partner had apparent authority to do the wrongful act, whether or not he intended to benefit the firm, or (ii) if the partner acted without apparent authority but intended to benefit the firm.

The SJC also held that the firm could be liable under G.L.c. 93A despite being en-tirely unaware of and uninvolved in its partner’s unfair and deceptive conduct.

-

An attorney’s supervisory obligations under the Rules of Professional Conduct could provide another basis for liability for another lawyer’s acts.

Rule 5.1 of the Rules of Professional Conduct in Massachusetts and Rhode Is-land provides that partners and lawyers possessing supervisory or managerial au-thority are required to make reasonable ef-forts to ensure that the firm has in effect measures giving reasonable assurance that all attorneys at the firm conform to the rules of professional conduct.

The commentary to the Massachusetts and Rhode Island rules states that Rule 5.1 applies to supervising or managerial attor-neys in law firms and government agen-cies. It also applies to lawyers who have intermediate managerial responsibilities, not merely those who are at the top of the firm ladder.

An attorney who fails to satisfy that su-pervisory duty exposes the firm and its partners to potential liability.

Under Massachusetts law, although “[a] violation of a canon of ethics or a dis-ciplinary rule is not itself an actionable

breach of duty to a client[,] if a plaintiff can demonstrate that a disciplinary rule was intended to protect one in his posi-tion, a violation of that rule may be some evidence of the attorney’s negligence.” Fishman v. Brooks, 396 Mass. 643, 649 (1986).

Furthermore, Rhode Island cases con-cerning attorney negligence, such as Val-linoto v. DiSandro, 688 A.2d 830, 834 (R.I. 1997), refer to the rules of ethics in estab-

lishing the standard of care for attorneys. The firm’s breach of the rules of profes-sional conduct could give a legal malprac-tice plaintiff the hook to convert an attor-ney’s error or wrongful act into evidence in support of a direct claim for negligence against the law firm and its partners.

Law firms can do several things to de-crease the risk of being held responsi-ble for a partner or associate who has “gone rogue.”

First, law firms need to know as much as possible about the practice areas and clients of their fellow attorneys, partners and associates alike. Firms should period-ically review on a management-to-part-ner, peer-to-peer, and partner-to-associ-ate basis the clients and work of other law firm attorneys.

As the commentary to Rule 5.1 advises, a small firm of experienced lawyers may require only informal supervision, peri-odic review of compliance and occasional admonition, while a larger firm, or a firm with numerous inexperienced attorneys or thorny ethical considerations, may re-quire more elaborate procedures.

Periodic review of partner and associate practices can catch potential red flags be-fore they become serious problems.

For example, if an attorney develops a client with substantial billings but is un-able to answer basic questions about who the client is, what the client does, or what role the attorney’s work plays in the cli-ent’s overall business strategy, the firm should dig deeper and perform additional due diligence in coordination with the at-torney servicing the client to be sure that this legal work does not expose the firm to liability.

Second, law firms should properly vet the practice of any new or lateral attorney. Before the firm agrees to bring the attor-ney on as a partner or associate, it needs to understand what the attorney does or plans to do and who his or her clients are.

If the attorney has a book of busi-ness, firm management should review the attorney’s history of clients, hours, rates and total billings as well as perform

independent research into the business and practices of the attorney’s more signif-icant clients.

If the attorney’s practice looks “too good to be true,” it very well may be. Per-forming due diligence before associating with a new attorney can prevent signifi-cant headaches further down the road.

Third, firms should prepare and dis-seminate to its partners and associates law firm policies based on best practices in the

industry. These policies should run the gamut from client intake and conflicts to client communication and termination.

For example, the firm should develop a model engagement letter that states the terms and scope of the firm’s engagement as well as set up an internal process for ex-amining any substantive changes to the model terms.

The firm should design and implement policies to detect and resolve potential conflicts, identify and calendar dates and deadlines for action, account for and re-tain client funds and property, and ensure that inexperienced lawyers are properly supervised in pending matters.

Some of the policies will be practice specific. For example, if attorneys at the firm issue opinion letters on firm letter-head, the firm should consider adminis-tering a policy requiring second-partner review of any opinion letter.

Fourth, law firms of all sizes need an at-torney who can serve in the role of gener-al counsel and ethics advisor.

While a large firm may have the struc-tural capacity to designate one of its attor-neys to fill such a role, most firms should retain an outside attorney to advise them and their lawyers on their ethical obliga-tions and potential risks and liabilities.

Whether the general counsel is in-house or outside the firm, the attorney must be intimately familiar with the rules of professional conduct and firm poli-cies and be able to provide guidance to help avoid potential risks to the firm. An in-house or outside attorney performing the role of general counsel and ethics ad-visor can provide confidential counseling and advise on how to handle issues when they arise.

The lesson from RKelley-Law is clear: Failure to understand the work being done by every lawyer at a firm — from the most senior partner in the corner office to the most junior associate in the window-less workstation — and to prepare for po-tential attorney error or misconduct by instituting best practices and seeking out-side counsel can expose the entire firm to substantial risk.

A rotten apple really can spoil the bunch.

BLAZEJEWSKI

A small firm of experienced lawyers may require only informal supervision, periodic review of compliance and occasional admonition, while a larger firm, or a firm with numerous inexperienced attorneys or thorny ethical considerations, may require more elaborate procedures.

Christopher R. Blazejewski is an attor-ney at Sherin & Lodgen in Boston, practic-ing complex commercial litigation, profes-sional ethics counseling and legal malprac-tice defense in Massachusetts and Rhode Is-land. William M. Dunham, also at Sherin & Lodgen, concentrates his practice on em-ployment law, legal malpractice defense and general business litigation.

DUNHAM

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June 6, 2016

By Debra A. Squires-Lee and Thomas W. Kirchofer

With summer approaching and the July bar exam loom-ing, law firms are beginning to think about next year’s in-coming class of associates.

There will be training and mentoring and plen-ty of work to begin to trans-form the newest law school graduates from law students into lawyers.

That is because, while our profession is changing rapidly, the law is still primarily an ap-prenticeship profession with on-the-job training. It takes more than a law degree and a bar card to make someone a full-fledged lawyer; newly degreed, newly barred attor-neys need time and training to hone and develop their le-gal skills.

For example, we do not ex-pect young lawyers who took a single contracts class to un-derstand every nuance of a complicated commercial deal, or to know how to draft each of the numerous contracts and instruments the deal might require.

New lawyers need to learn how to apply the law they studied in law school to the situations and facts be-fore them.

The same is true for the Rules of Professional

Conduct. One class in pro-fessional responsibility and

one test do not make law-yers experts in how to fol-low the ethical rules in com-plicated and often highly fraught situations.

Even lawyers who are hon-

est and ethical may find them-selves on unfamiliar ground when it comes to the ethical rules. Moreover, attorneys in the management ranks of law firms have an obligation un-der Mass. Rule Prof. C. 5.1(a) to take reasonable steps to en-sure “that all lawyers in the firm conform to the Rules of Professional Conduct.”

To begin to think about pro-fessional ethics training for new lawyers, law firms should start with the areas in which new associates are most like-ly to encounter problems. Be-cause newer lawyers are prob-ably not originating a lot of work, conflicts are not likely a big cause for concern.

What are the areas of con-cern for new lawyers? In our view, most ethical issues in-volving new lawyers concern billing, overzealous advocacy, and negligence caused by drug and alcohol use.

Billing and timekeeping. Junior lawyers at law firms are new to the notion that ev-ery minute of their day must be recorded in six-minute in-tervals. New lawyers also un-derstand that their compen-sation can increase if they hit certain billable-hour targets — or that their job can van-ish if they do not. Thus, an unrelenting pressure to bill more hours can cause new lawyers to begin the perhaps understandable, but always

impermissible, slide from scrupulous biller to haphazard biller to over-biller.

The pressures of the work it-self, and the pressure to bill can cause an associate to neg-ligently, or even intentionally, overbill clients.

New associates need to be reminded that they must ac-curately and correctly record their time. Firms can help by reminding new lawyers to contemporaneously track their time.

Firms also should consid-er new technologies that will help lawyers record their time as accurately as possible. For example, there are smart-phone apps on the market that help attorneys record time.

Overzealousness. New law-yers are new to an adversari-al profession. Both litigators and transactional lawyers face a pressure to “win” — a price concession, a deal point, a motion or a trial. That pres-sure to win cannot cloud a new lawyer’s ethical obliga-tions, including candor to the tribunal, fairness to oppos-ing parties, and respect for the rights of third persons.

The Supreme Judicial Court’s mandatory profes-sionalism course is a posi-tive new requirement for law-yers just starting out, but mentors and senior attor-neys with whom new lawyers work each day will likely have far more influence as models of professionalism — or lack of professionalism.

The best mentors teach by example, but law firms must play a role as well. Any ini-tial ethics training for new lawyers should include clear

expectations about behavior, courtesy and truthfulness, and provide concrete examples to new lawyers of what kind of conduct crosses the line.

Firms also should consider a formal mentorship program that matches senior lawyers with junior lawyers.

Alcohol use and abuse. Ac-cording to a New York Times report on a study commis-sioned by the American Bar Association and the Hazelden Betty Ford Foundation, one in three practicing lawyers are problem drinkers, based on the volume and frequency of alcohol consumed; 28 percent suffer from depression; and 19 percent show symptoms of anxiety.

According to the Times, “lawyers working in law firms had the highest rates of alco-hol abuse [and] junior associ-ates reported the highest rate of problem drinking.”

Lawyers who abuse alco-hol can neglect their work and their clients and engage in other ethically questionable conduct. Yet, law firms often create an alcohol-rich envi-ronment. Social outings, men-toring activities, deal dinners and other events often include substantial alcohol use.

Law firms must recognize that alcohol abuse is a prob-lem that can lead to ethical lapses. Firms must take steps to address any perceived alco-hol abuse and consider their role in causing or exacerbat-ing alcohol abuse.

Firms also can and should make very clear that attorneys who seek help or who report lawyers who may need help will be fully supported and face no adverse consequences.

The transition from law stu-dent to lawyer is a difficult one. Firms should treat ethi-cal training and compliance as a vital aspect of training their next generation lawyers. MLW

Firms need to provide new lawyers with clear ethical guidance

Debra A. Squires-Lee is a partner at Sherin & Lodgen and co-chair of the firm’s professional liability prac-tice group. Thomas W. Kirchofer is an associate at the Boston firm. Both represent lawyers and law firms in professional malpractice and bar discipline matters, counsel and advise law firms, and provide ethics training.

In our view, most ethical issues involving new lawyers concern billing, overzealous advocacy, and negligence caused by drug and alcohol use.

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Please click the Rule, section header, or page number to view that individual Rule or section

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Confirmed in Writing

Firm

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Fraud

Informed Consent

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CommentThe Entity as the Client

Relation to Other Rules

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Government Agency

Clarifying the Lawyer's Role

Dual Representation

Derivative Actions

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pro hac vice

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pro bono publico

pro bono publico

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b

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ADDITIONAL READING

AMERICAN BAR ASSOCIATION

• ABA Model Guidelines for the Utilization of Paralegals Ethical Comments on Guidelines 2 & 3

Available at: http://www.americanbar.org/content/dam/aba/administrative/paralegals/ls_prlgs_paralegal_ethics_article_3.authcheckdam.pdf

• ABA, Hazelden Betty Ford Foundation Release First National Study on Attorney Substance Use, Mental Health Concerns

Available at: http://www.americanbar.org/news/abanews/aba-news-archives/2016/02/aba_hazelden_betty.html

• ABA Formal Opinion 03-429: Obligations with Respect to Mentally Impaired Lawyer in the Firm

Available at: http://www.americanbar.org/content/dam/aba/migrated/cpr/clientpro/03_429.authcheckdam.pdf

• ABA Formal Opinion 03-431: Lawyer’s Duty to Report Rule Viola-tions by Another Lawyer Who May Suffer from Disability or Im-pairment

Available at: http://www.americanbar.org/content/dam/aba/migrated/cpr/clientpro/03_431.authcheckdam.pdf

• ABA Formal Opinion 92-366: Withdrawal When a Lawyer’s Ser-vices Will Otherwise Be Used to Perpetrate a Fraud

• ABA Formal Opinion 476: Confidentiality Issues When Moving to Withdraw for Nonpayment of Fees in Civil Litigation

Available at: http://www.americanbar.org/content/dam/aba/images/abanews/FormalOpinion476Final12%2013%202016.pdf

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• ABA Formal Opinion 463: Client Due Diligence, Money Launder-ing, and Terrorist Financing

Available at: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_463.authcheckdam.pdf

• ABA Formal Opinion 95-390: Conflicts of Interest in the Corporate Family Context

• Peter Geraghty and Susan Michmerhuizen, “Ethics Tip: Back to the Future: Advance Waivers of Conflicts of Interest,” January 2015.

Available at: http://www.americanbar.org/groups/professional_responsibility/services/ethicssearch/ethicstipjanuary2015.html

• Peter Geraghty and Susan Michmerhuizen, “Ethics Tip: Multiple Representation: Proceed with Caution,” November 2014.

Available at: http://www.americanbar.org/groups/professional_responsibility/services/ethicssearch/ethicstipnovember2014.html

LAW 360 / PORTFOLIO MEDIA, INC.

• Christopher Blazejewski & Debra Squires-Lee, “3 Ethical Traps for ‘Gladiator’ Litigators,” August 21, 2015.

Available at: http://www.sherin.com/wp-content/uploads/2015/05/3-Ethical-Traps-For-Gladiator-Litigators.pdf

• Christopher Blazejewski & Debra Squires-Lee, “6 Steps to Becom-ing a Superior Supervising Attorney,” January 8, 2016.

Available at: https://www.law360.com/articles/744386/6-steps-to-becoming-a-superior-supervising-attorney

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MASSACHUSETTS BAR ASSOCIATION

• Opinion No. 98-1

Available at: https://www.massbar.org/publications/ethics-opinions/1990-1999/1998/opinion-no-98-1/

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