1976

  • Opinion No. 76-1
    Summary: A lawyer who has been appointed by a court to represent a "child in need of services" should handle the case in the manner which he or she considers to be in the best interests of the child, even if contrary to the wishes of the child or the child's parents.
  • Opinion No. 76-2
    Summary: An attorney may, with the consent of the client involved, disclose the contents of the client's files to another attorney so that the latter may be prepared to protect the client's immediate legal interests in the event of the former's death. If the client chooses to retain the services of the second attorney after the death of the former attorney, the second attorney may compensate the estate of the deceased attorney, in accordance with a prearranged schedule, an amount which fairly and reasonably represents the value of the deceased attorney's services to the client prior to death. The second attorney may not purchase the good will of the deceased attorney.
  • Opinion No. 76-3
    Summary: An attorney representing a judgment creditor, who recommends an individual for an appointment as receiver, may neither request nor receive a "referral fee" of any sort from the nominee.
  • Opinion No. 76-4
    Summary: A lawyer-shareholder of a professional corporation may provide legal services other than as an employee of the corporation.
  • Opinion No. 76-5
    Summary: (1) A lawyer whose father has become clerk of a court in which the lawyer practices may represent a criminal defendant in a matter in which the clerk has earlier participated provided that he was not representing this client at the time of the clerk's participation; that the clerk was not then aware that his son, the lawyer, would subsequently undertake such representation; and that the clerk does not participate in the case after his son, the lawyer, has been retained by the client.
  • Opinion No. 76-6
    Summary: Where an attorney has been shown a document by a person who sought (unsuccessfully) to retain him as trial counsel, while advising the person as to some of the basic legal considerations involved in the suit, an attorney-client relationship existed, and the attorney may not properly reveal the fact that the person had the document, even though the person later perjures himself by denying possession of the document in a subsequent suit when represented by another attorney.
  • Opinion No. 76-7
    Summary: A lawyer who succeeds to the practice of another attorney, including files with wills which the prior attorney's clients requested him to hold for safekeeping, is obligated to make a reasonable effort to locate the testators and, in the case of a testator who cannot be located, to retain and safeguard the will, or to deposit it in court pursuant to G.L. c.191, S10.
  • Opinion No. 76-8
    Summary: A law firm may mail a brief professional announcement card stating new or changed associations or addresses, change of firm name, or similar matters pertaining to its personnel in the form permitted by DR 2-102(A)(2), to as many lawyers as it wishes whether or not the firm has had prior professional dealings or relations with them.
  • Opinion No. 76-9
    Summary: A lawyer who is a "municipal employee" of a city or town as defined in G.L. c.268, S1(g) may not undertake to represent a client in prosecuting any claim against the same city or town, or in connection with any particular matter in which the same city or town is a party, or has a direct and substantial interest. He may do so, however, subject to the limitations in G.L. c.268A, S17, if he has been classified as a "special municipal employee" as provided in G.L. c.268A, S1(n), unless (a) the employment involved a matter which foreseeably might involve his future participation as a "municipal employee," or become the subject of his official responsibility, or (b) he is at the time (or in some circumstances has been) counsel for the same city or town.
  • Opinion No. 76-10
    Summary: A lawyer may engage in another profession or business, provided that the lawyer does not identify himself or herself as a lawyer in any publication in connection with the other profession or business. The lawyer may also engage in the practice of law from the same office, provided that the lawyer does not indicate on his/her letterhead, office sign, or professional card that he/she is thus engaged in the other profession or business. A single telephone number may be used for both the practice of law and the other profession or business, provided that the mode of answering the telephone in the office, and the listing in the telephone directory, do not couple the two. [Editor's note: But see MBA Opinion 82-2, "which supercedes MBA Opinions 76-10 and 76-30 ... insofar as the advice contained therein is inconsistent with this opinion."]
  • Opinion No. 76-11
    Summary: A lawyer who is an eyewitness to a crime committed by a former client is not precluded from revealing the identity of the client on the ground that the client's identity is a "secret" under DR 4-101.
  • Opinion No. 76-12
    Summary: A lawyer who has represented a couple in proceedings to adopt the wife's child by a prior marriage may properly represent the wife two years later in a divorce action against the husband, unless the husband can show that in connection with the adoption proceedings the lawyer gained confidential or secret information which would be disadvantageous to him or advantageous to the wife, in the divorce proceeding.
  • Opinion No. 76-13
    Summary: A lawyer who is paid a salary and is employed by a city rent control administration may join a union for the purpose of negotiating wages, hours and working conditions with his employer-client, unless the collective bargaining agreement, the constitution, or the bylaws of the union provide that all members of the union (if it is limited to other lawyer-employees), or a separate class of members (if the union is established for lawyer-employees only) would have the right (a) to strike, (b) to withhold services for any reason, (c) to divulge confidences and secrets of the employer-client, or (d) to violate any of the other Disciplinary Rules in Rule 3:22 of the Supreme Judicial Court then in force, or as subsequently amended.
  • Opinion No. 76-14
    Summary: An attorney may represent the wife in a divorce proceeding where another attorney associated with him in the same office has previously represented the husband in a substantially related matter, only if both the husband and the wife consent to the current representation after full disclosure.
  • Opinion No. 76-15
    Summary: In professional appearances at hearings before a public authority or other governmental agency, lawyers are subject to Canon 7 providing that "A lawyer should represent a client zealously within the bounds of the law," and to the limitations upon such representation in DR 7-102(A), 7-105 and 7-106 with regard to threatened legal action against the members of such bodies and to their general conduct before such adjudicatory bodies.
  • Opinion No. 76-16
    Summary: It is not improper for a lawyer to accept shares of stock in a corporation as compensation for organizing a corporation to market a new invention-process, preparing legal documents in connection with marketing, selling or leasing the invention-process or its finished products, and general legal advice to the corporation.
  • Opinion No. 76-17
    Summary: An attorney appointed to represent a criminal defendant found by the court to be indigent, who learns from his client that the client is not indigent, must promptly call upon the client to rectify the fraud by reporting it to the court. If the client refuses to do so, the lawyer must either reveal the fraud to the court, or notify the court that he or she is willing to continue to represent the client without compensation from public or restricted funds. In no event may the lawyer accept a fee from the client, as a private retainer, without the approval of the court after full disclosure.
  • Opinion No. 76-18
    Summary: It is improper and misleading for an out-of-jurisdiction firm whose members and associates are not admitted to the Massachusetts bar to place a "Boston Office" address on its letterhead. In addition, the letterhead of such an out-of-jurisdiction law firm may not contain, without more, the names of Boston lawyers who are not associates or partners of that firm.
    It is proper for an out-of-jurisdiction firm to have a local office indicated on its letterhead if (1) that office is operated by at least one member or associate of the firm who is admitted to the Massachusetts bar, and (2) any enumeration of lawyers on the firm letterhead makes clear which lawyers are not admitted to practice in Massachusetts and any other jurisdictional limitations.
  • Opinion No. 76-19
    Summary: Where one member of a group of lawyers who practice together from the same suite of offices and share some of the costs of the practice brings a contested suit on behalf of a plaintiff client, no other member of the group may ethically represent a defendant client in the suit, unless (1) each of the lawyers uses separate stationery, with his own name only on it, and does not join his name with others on cards, law lists, or telephone directories, and the door of the group does not contain the names of the persons practicing therein more closely connected than as follows: "Law Offices--Charles W. Jones--Peter S. Smith," and (2) each client consents after full disclosure of the extent to which the suite of offices, files and personnel are shared by their lawyers.
  • Opinion No. 76-20
    Summary: A lawyer practicing in both Massachusetts and California and certified by the California bar as a specialist in taxation may include the following notation on his letterheads and professional cards: "Certified Tax Specialist in California."
  • Opinion No. 76-21
    Summary: An attorney who had filed an involuntary petition in bankruptcy on behalf of several crediors against a corporation and who later served as counsel to the trustee should not represent the former principal officer of the corporation in the latter's personal bankruptcy if the two bankruptcy proceedings are substantially related.
  • Opinion No. 76-22
    Summary: A lawyer may continue to represent a client in contemplated or pending litigation unless he learns or it is obvious that he or a lawyer in his firm (1) ought to be called as a witness on behalf of his client, or (2) may be called as a witness other than on behalf of his client and the lawyer's testimony is or may be prejudicial to his client.
  • Opinion No. 76-23
    Summary: In an effort to secure acceptance by local banks of a policy of "open title examination" (the acceptance by all local banks of title opinions of members of a local bar association representative of the general bar of the geographical area in which it exists as to real estate which their clients are offering the local banks as loan collateral), the local bar association:
  • Opinion No. 76-24
    Summary: Whether a retaining or possessory lien on a client's books and papers, the purpose of which is to secure payment of legal fees and expenses, exists in Massachusetts is beyond the jurisdiction of this committee, since it is a question of law which should be submitted to the courts for determination.
  • Opinion No. 76-25
    Summary: Provisions in the arrangements by which a lawyer receives for collection an account forwarded by a collection agency or other lay forwarder are not ethically proper if they: (a) Do not reserve to the creditor the right to choose the attorney, if he or she desires to do so; (b) Do not require the creditor to pay all filing fees and disbursements not satisfied from monies collected; (c) Do not separately determine the fees of the lawyer and of the collection agency by contract with the creditor; and (d) Do not permit the creditor, if he or she desires to do so, to require the lawyer to pay over to him or her the monies collected by the lawyer on his or her behalf, less filing fees, disbursements and fees for legal services.
  • Opinion No. 76-26
    Summary: An attorney who is associated with his son in the practice of law should not handle any criminal cases being prosecuted by the district attorney's office in which his son serves as an assistant district attorney. In referring a person in need of representation to another attorney, the referring attorney should not gather the facts from the person but should refer him directly to the new lawyer and should not share in a division of the fee even with disclosure to the client.
  • Opinion No. 76-27
    Summary: A lawyer may properly print and make available in his office in the same manner as MBA pamphlets a "Guide to Legal Fees and Services" which describes (without any dollar amount) flat rate fees, per hour fees, and contingent fees. It also lists the types of charges for expenses, payable in addition to the charges for professional fees, and discusses billing procedures, including retainers, documentation of time, and statements.
  • Opinion No. 76-28
    Summary: An attorney appointed to represent a criminal defendant found by a court to be indigent may not accept a fee from that defendant for services rendered in simultaneous or related legal proceedings without disclosure to the appointing court.
  • Opinion No. 76-29
    Summary: The salaried attorneys of a student legal services office operated by one or more nonprofit student government organizations, may properly represent students in criminal matters as part of a general legal services program for students.
  • Opinion No. 76-31
    Summary: Where an attorney associated with one firm becomes associated with another firm, it is not necessarily improper for the second firm to represent interests adverse to clients of the laywer's former firm.
  • Opinion No. 76-32
    Summary: The fact that an attorney is one of the directors of a charitable corporation does not preclude him from being retained to render legal services to the corporation.
  • Opinion No. 76-33
    Summary: An attorney who formerly was employed as a commercial lending officer for a bank, and who handled on behalf of the bank loan transactions with a borrower, may not thereafter represent that borrower against the bank in connection with the borrower's liability on those loans.
  • Opinion No. 76-34
    Summary: An attorney appointed to represent an indigent patient at a mental health and retardation facility may, without disclosure to or approval by the appointing authority, accept a fee from that patient or from another appointing authority providing legal services to that patient for services rendered to that patient which are subsequent and unrelated to the proceedings for which the appointment was made. An attorney may not without such disclosure and approval accept simultaneous appointments from more than one publicly funded appointing agency to represent an indigent in contemporaneous matters, whether related or unrelated.
  • Opinion No. 76-35
    Summary: Attorneys may identify themselves as attorneys by name and address in a probate citation published in a newspaper as required by law.
©2014 Massachusetts Bar Association