Massachusetts Bar Association member Christa A. Arcos is a solo
practitioner based in Stoneham who specializes in defending
attorneys in BBO proceedings and appellate matters. She is a member
of the MBA's Judicial Administration Section Council and the MBA's
Committee on Professional Ethics. Massachusetts Lawyers
Journal recently spoke with Arcos about revisions made to the
Supreme Judicial Court's Massachusetts Rules of Professional
Conduct, which went into effect July 1, 2015.
In your opinion, what is the most significant change to
the rules?
The addition of a definition for "informed consent" and the
requirement that it be in writing where the client is consenting to
a conflict. The new definition requires attorneys to explain the
material risks to the client and discuss the reasonable
alternatives. If attorneys don't engage in a sufficiently detailed
discussion and confirm that discussion in writing, the client's
waiver may not be valid. This new definition of informed consent
also applies to other rules, including disclosures of a client's
confidential information.
What changes are most likely to surprise
attorneys?
The changes to the rule on candor toward a tribunal. A lawyer is
now in violation of that rule if any misrepresentation is
made to the court, irrespective of whether that misrepresentation
is material. That duty continues to the conclusion of the
proceeding, including during any appeals that are taken. Also, the
comments to that rule now affirmatively obligate an attorney to
take reasonable remedial measures to correct false deposition
testimony.
What will be the most welcomed change?
The revisions to Rule 3.5. Attorneys can now have post-trial
communications with jurors without first seeking the court's
permission, as long as those communications comply with the
rules.
What changes do you think will be most difficult to
navigate?
The rules on supervising how outsourced tasks are performed.
Compliance with these new rules requires attorneys to ensure that
vendors, investigators and other contractors are performing
outsourced work in accordance with the attorney's ethical
obligations. Investigators can't use ruses to gain information from
social media websites such as Facebook. Also, when attorneys
outsource scanning or copying of pleadings and documents they must
ensure that the vendor is safeguarding that confidential
information in accordance with the attorneys' obligations under
these new rules.
What updates are attorneys now obligated to do to secure
a client's confidential information?
Attorneys must make reasonable efforts to safeguard a client's
confidential information against unauthorized access and
inadvertent disclosures, both when they store the information and
when they transmit it. Complying with this rule could be
problematic if attorneys are using free Internet-based services to
store or share client files, although the rules don't necessarily
require any special security measures. Whether an attorney's
efforts are reasonable will depend on an analysis that assesses the
sensitivity of the information at issue, as well as the likelihood
of disclosure and the cost and difficulty of employing
safeguards.
What duties do attorneys now have if they inadvertently
receive another party's confidential information?
These new rules impose an affirmative obligation on attorneys to
promptly notify the sender if they receive another person's
confidential information. Whether the receiving attorney can review
or use the inadvertently disclosed information will be an issue
governed by state law and is beyond the scope of the ethics
rules.
Did the rule on confidential information preserve
exceptions that allow disclosure of confidential information in
certain instances?
The exceptions were preserved and expanded. Lawyers are now
allowed to disclose confidential information to prevent substantial
injury to significant non-economic interests, as well as to prevent
substantial financial injury or bodily harm. The expanded
exceptions also expressly provide for disclosure to a tribunal if
necessary to remedy false testimony and false statements. In
limited circumstances attorneys may also make disclosures to
mitigate or rectify injuries.
What changes were made to the rules governing
competency?
The new rules impose an affirmative obligation on attorneys to
keep abreast of the risks and benefits of using technology in their
practice as well as engaging in continuing education. Additionally,
before a lawyer retains or contracts with lawyers outside of the
lawyer's firm for services, the lawyer must reasonably believe that
the other lawyer's services will contribute to competent
representation of the client and will comply with the ethics rules,
particularly the rules on safeguarding confidential information.
The lawyer also has to obtain the client's informed consent
before contracting with outside lawyers.
How do the new advertising and solicitation rules impact
attorneys?
The new rules clarify that all of an attorneys' electronic
communications are subject to the ethics rules. The SJC also
retained the longstanding prohibition on oral solicitations if they
don't fall under one of the exceptions and the rules now define
that term to include "real-time electronic contact" which covers
social media communications. One helpful change for new attorneys
and those who want to develop a new practice area is the revision
to Rule 7.4, which now allows attorneys to indicate practice areas
without making a claim of specialization. The new rules also
eliminated the requirement that written advertisements and
solicitations be retained for two years. However, the best practice
is to retain copies in the event compliance is questioned.
What do attorneys need to know about changes to the
rules on how they are expected to handle client funds?
There were three major changes to Rule 1.15. The first change
requires attorneys to deposit advances for expenses into their
IOLTA account, rather than their operating account. Attorneys must
also track these funds with a client ledger and can only withdraw
them as expenses are incurred. The second change prohibits
attorneys who act in a fiduciary capacity from paying legal fees
from trust accounts unless they have a bill to justify the payment.
The third change requires attorneys to fill out and file a new form
with banking institutions for all non-IOLTA trust accounts. This
new form is available online at the Board of Bar Overseers website
(mass.gov/obcbbo), and will alert the institution that the trust
account is subject to the BBO reporting requirements for bounced
checks.
The Massachusetts revised Rules of Professional Conduct
adopted many of the ABA Model Rules, which serve as a model for
ethical rules for most states. Can you give an example of how a new
Massachusetts rule deviates from an ABA suggestion and why that
might have happened?
Massachusetts retained the restrictions in Rules 1.8 and 1.9
that prohibit an attorney from disclosing or using a client's
confidential information for the attorney's own benefit or the
benefit of a third party without the client's informed consent. The
ABA Model Rules deleted those restrictions where the disclosure
wouldn't disadvantage the client. The stricter Massachusetts
version reinforces that the duty of loyalty is a hallmark of the
attorney-client relationship.
What general advice would you give attorneys regarding
these new rules?
The changes are extensive and only a few could be discussed
here, so I would encourage attorneys to take advantage of a free
two-hour CLE program on Oct. 27 ("Risk Management and the SJC's
Revisions to the Rules of Professional Conduct") that discusses the
changes in more detail. Also, as attorneys encounter ethical issues
under the new rules, I would encourage them to call the BBO
helpline at 617-728-8750 (Monday, Wednesday and Friday, 2-4 p.m.).