1978

  • Opinion No. 78-14
    Summary: An elected city councillor, who is an attorney, may represent criminal defendants brought into the district court, either by summons, warrant or arrest by the city police department, where his office has no significant influence over police department rules, salaries, budget, hiring, or any other source of interest or direct contact. Our Opinion 78-1, concerning town and city counsel, does not apply because this attorney's law practice does not involve representing the police department or other city interests. Problems concerning statutory conflict of interest under G.L. c.268A cannot be considered by this committee.
  • Opinion No. 78-13
    Summary: A lawyer who represents the plaintiff in a medical malpractice action may advance cash to his indigent client for the purpose of posting a bond required pursuant to G.L. c.231, S60B, provided that the client remains ultimately liable for this expense.
  • Opinion No. 78-12
    Summary: A lawyer specializing in creditor's rights and collections generally may not recommend that one client take an assignment of another client's claim against a third party in settlement of the second client's debt to the first client.
  • Opinion No. 78-11
    Summary: An attorney may permit a client to charge a retainer with a credit card. If the payment is an advance for future services, then the funds must be segregated until the services are actually provided. See DR 9-102, Supreme Judicial Court Rule 3:22.
  • Opinion No. 78-10
    Summary: An attorney who is general counsel to the patrolmen's association of a city should not represent criminal defendants arrested by members of the patrolmen's association. This is true even though the cases are not prosecuted by members of the patrolmen's association, but by senior officers of the police department of the city and/or an assistant district attorney.
    A written notification to the prospective client advising him that the attorney is general counsel to the patrolmen's association, and that the attorney will not prosecute any civil claim against members of the association for brutality, assault and battery, violation of constitutional or statutory rights concerning the arrest, is not in itself adequate to cure the potential and actual conflict of interests which could exist.
  • Opinion No. 78-9
    Summary: Where the attorney for a juvenile in a pending juvenile case in a district or superior court learns of the existence of other juvenile delinquency cases against the client (pending or adjudicated) which are not known to the probation officer, the attorney may not properly represent to the court (directly or indirectly, or by tacit assent if the court seeks the attorney's confirmation) that there are no such cases, other than those known to the probation officer. If the existence of these earlier cases becomes relevant (for instance, at disposition) and the attorney knows that the client has represented to the court, directly or through the probation officer, that there are no other such cases, the attorney must call upon the client to rectify the fraud, and if the client refuses to do so, the attorney has an affirmative duty to reveal the true facts as to the other cases to the court.
  • Opinion No. 78-8
    Summary: A retired judge should not use the title "Judge," either directly or indirectly, in the practice of law.
  • Opinion No. 78-7
    Summary: Under the existing disciplinary rules of the SJC an attorney who is an employee of the Department of Mental Health (DMH) would not be prohibited from providing legal services to patients or former patients of the DMH unless (1) the attorney had substantial responsibility as a DMH employee for any of the services provided by the DMH to the patient or former patient, (2) the interests of the prospective client differed in any way, actually or potentially, from the interests of the DMH. This latter prohibition extends not only to patients and former patients at the facility where the attorney is employed, but also to all other patients and former patients of the DMH. The inquiry does not raise the issue of whether the attorney is using his employment at the DMH to "funnel" potential clients to his law practice contrary to DR 2-102(E).
    Also potentially applicable are certain statutory provisions such as G.L. c.268A. Construing these statutes is beyond the function of this committee.
  • Opinion No. 78-6
    Summary: An attorney's duty to act competently on behalf of his clients requires him to retain "dead" files for a reasonable period of time. With regard to records relating to the handling, maintenance and disposition of all funds, securities and other properties of a client there is a specific rule providing for a 10-year period of retention.
  • Opinion No. 78-5
    Summary: Under DR 2-103(D) a lawyer may not be a member of an organization which exists solely to promote the use of members' products and services.
  • Opinion No. 78-4
    Summary: The committee has reconsidered that part of its Opinion 74-4 which held that publication of a notice of a lawyer's availability to act as a consultant with other lawyers in a particular branch of law in a publication intended primarily for the professional use of lawyers could properly be made in a particular legal journal "not more frequently than once a month." In the light of recent cases construing the First Amendment, as applied to professional advertising, we now conclude that such a limitation on the frequency of publication cannot be required by our Canons of Ethics and Disciplinary Rules.
  • Opinion No. 78-3
    Summary: A lawyer may distribute to clients with whom he has a continuing relationship copies of a commercially prepared newsletter on legal matters and identify himself as the distributor.
  • Opinion No. 78-2
    Summary: An open panel, prepaid legal service plan proposed by a charitable corporation does not violate any of the disciplinary rules. The corporation's closed panel plans are improper because they require participating lawyers to split fees with the corporation.
  • Opinion No. 78-1
    Summary: Neither an attorney employed as town counsel or as town prosecutor, nor any member or associate of his firm, may properly represent a criminal defendant in the trial or appeal of (1) a case in which the town has an interest, such as a charged violation of a town bylaw, or (2) a case in which he, or any police or other officer of the town is involved as complainant, prosecutor or witness. In addition, if the attorney is employed as town prosecutor, neither he nor any member or associate of his firm may properly represent a criminal defendant (3) in cases prosecuted by the State Police, if he prosecutes cases in his town in which the State Police are thus involved, or in cases prosecuted by the local district attorney's office, if he works out of that office as town prosecutor.
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