Revisions to the Rules of Professional Conduct: What you need to know

Issue September 2015

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.).