Massachusetts Bar Association Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the Massachusetts Bar Association, with full citations and source links on every page.
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Can a law firm donate court-awarded fees from pro bono cases back to the non-profit organization that referred those cases?
The committee concluded that a firm could not donate court-awarded pro bono fees to a referring non-profit that was not a qualified legal assistance organization, because the donation fell within the …
If a lawyer drew up loan documents for sellers as a courtesy while representing the bank, can the lawyer later sue those sellers for the bank on their guarantee?
The committee concluded that, having prepared the deed, note, and second mortgage for the owners as part of one financing transaction, the lawyer ought not represent the bank in a deficiency suit agai…
Can a lawyer mail business cards to accident victims and others learned about through the news, and what must the mailing say?
The committee concluded that targeted solicitation of accident victims and similar people in distress was usually barred because they may be unable to exercise reasonable judgment in hiring a lawyer, …
Can a lawyer who helped draft a wife's will later defend her husband's estate in a suit by the children over how the husband used a power of appointment from that will?
The committee concluded the lawyer should not defend the husband's estate, because his earlier work helping draft the first wife's will was substantially related to a suit claiming the husband wrongly…
Can a lawyer offer discounted services to companies' employees and have the companies promote her, and can a lawyer pay an admin fee to a prepaid legal plan?
The committee concluded that using discounted fees to get businesses to solicit their employees violated the rule against paying others to solicit, but that paying a modest administrative fee to an in…
When a lawyer represents herself in a case, can she contact the opposing party directly if she knows that party has a lawyer?
The committee concluded that the no-contact rule applied to a lawyer appearing pro se, so she could not communicate directly with a represented adverse party without that party's counsel's consent.
Can a lawyer facing possible indictment as a co-defendant with a former client reveal the client's confidences to convince the prosecutor not to indict him?
The committee concluded the self-defense exception let the lawyer reveal the minimum confidential information necessary to convince the prosecutor he committed no crime, even to head off a threatened …
Can a lawyer moving to withdraw from a case for the client's nonpayment of fees disclose the client's confidences in a supporting affidavit?
The committee concluded a lawyer could reveal confidential information to support a motion to withdraw for nonpayment, but only the minimum needed to establish the ground, and should take steps such a…
Can a criminal defense lawyer attack a witness's credibility when that witness is the fiance of another client the lawyer currently represents?
The committee concluded the lawyer could not continue both representations: attacking the victim-witness in one case, who was the fiance of her client in the other, created a likely conflict that was …
Can a lawyer bring a malpractice suit against an attorney who is her trial co-counsel in the very same case where the alleged malpractice occurred?
The committee concluded the lawyer should not take on the malpractice suit, because suing her own co-counsel over work in the same pending case would create an adversarial relationship that would not …
Can a close family member of a district attorney defend criminal cases prosecuted by that DA's office?
The committee concluded a DA's family member is not automatically disqualified from defending criminal cases in the DA's county, and client consent after full disclosure usually cures any conflict; th…
Can a lawyer charge a client a non-refundable retainer for a particular case or service?
The committee concluded a lawyer may not charge a non-refundable retainer for a specific case or service: advance fees are earned as work is done, must be held in trust until earned, and a truly non-r…
Does serving as bond counsel for a state agency make the whole state government the firm's client and bar it from representing private clients adverse to other state agencies?
The committee concluded that, absent special circumstances, representing one state agency (here as bond counsel for the State Treasurer) does not make the whole Commonwealth the firm's client and does…
If a witness tells a lawyer that an unfiled affidavit the client prepared is perjurious, what does the lawyer owe the witness, the client, and the court?
The committee concluded the lawyer must tell his client about the witness's recantation, may not file the affidavit the witness now calls perjurious, and has nothing to report to the court because the…
Can a lawyer disclose a client's identity in response to an IRS summons about cash fees over $10,000 when the client refuses to consent?
The committee concluded that, with the client refusing consent and no Supreme Court decision settling that the tax-reporting law overrides confidentiality, the lawyer should resist disclosing the clie…
Can a government lawyer use privileged corporate documents that a whistleblowing former employee leaked to a regulator, with no government involvement in taking them?
The committee concluded the Disciplinary Rules did not bar the government lawyer from possessing and using the documents, privileged or not, where a former employee leaked them on his own initiative, …
Can a lawyer discuss confidential client matters over a cellular telephone?
The committee concluded that a lawyer should not discuss confidential information on a cellular telephone if there is any nontrivial risk it could be overheard by a third party, unless the client cons…
Can a lawyer take a contingent fee to collect delinquent child support after a divorce is final, and can it cover future payments?
The committee concluded a contingent fee to collect delinquent child support is permitted once the divorce is final, but the fee may not turn on a criminal contempt outcome, and a fee on future paymen…
What should a lawyer holding estate funds do if the administratrix client may divert them, and can the firm also be sureties on her bond?
The committee concluded the lawyer may not help the administratrix divert estate funds and should seek the Probate Court's instructions, revealing confidences only as needed to prevent a crime; and th…
Can town counsel sue a town agency she is currently representing in unrelated litigation, at the selectmen's direction?
The committee concluded that, in narrow circumstances, town counsel may sue a subordinate agency she currently represents elsewhere, where the two matters are unrelated, she holds no relevant confiden…
Can a lawyer advertise a specific contingent fee rate, like '25% contingency fees for personal injury cases'?
The committee concluded a lawyer may advertise contingent fee rates only if the ad specifies whether the rate is computed net or gross of costs the client owes, because an unqualified rate is open to …
Does a lawyer have to tell clients about frequent-flyer miles earned on travel that the clients pay for as litigation expenses?
The committee concluded that a lawyer must disclose a personal benefit accrued at no extra cost from client-billed expenses if the client could claim the benefit or if the benefit is large enough to p…
Can a lawyer give an affidavit about a former joint client's statements to help co-counsel collect a fee from that client?
The committee concluded that the second lawyer could not voluntarily disclose, by affidavit or otherwise, the client's statements about fees owed to co-counsel, because that information was the client…
Must a lawyer follow a 13-year-old client's wishes in a care-and-protection case when professionals think those wishes are against the child's best interests?
The committee concluded that the lawyer must advocate a competent minor client's stated position, and may instead seek to withdraw; only if the lawyer determines the child is incompetent may the lawye…
Can a lawyer phone or mail potential co-plaintiffs to ask them to join litigation, and can the lawyer ask the client to do it instead?
The committee concluded that mailed solicitations must be labeled 'advertising,' telephone solicitation for a fee is prohibited, and a lawyer may not have the client recruit co-plaintiffs to circumven…
Must a lawyer stop a staff member from telling police which client she thinks stole money from her purse at the office?
The committee concluded that the confidentiality duty did not require the lawyer to prevent an employee from giving police the name of the client she suspected, because she observed the apparent theft…
Can a trustee's lawyer who discovers the trustee is stealing trust funds warn the beneficiaries or the court?
The committee concluded that, if the lawyer determines the client is reasonably likely to intend a future crime, the lawyer has discretion to reveal it to the beneficiaries or court; a fraud committed…
Must a lawyer disclose a former client's alleged fraud when the evidence is uncertain and tied up with the client's confidences?
The committee concluded that the mandatory fraud-disclosure duty did not apply because the information neither clearly established fraud nor escaped the privileged-communication exception, and that th…
Can a lawyer sell real estate he owns to a client he is currently representing in the client's divorce?
The committee concluded that the lawyer was not necessarily barred from selling property he held to a current matrimonial client, provided the client had separate counsel on the real estate deal, oppo…
What files must a law firm turn over to a former client, and who pays the copying costs?
The committee concluded that the firm must surrender originals of client-supplied and client-paid investigatory documents (keeping copies at its own expense), while copying charges for pleadings and w…
Can a firm drop one client to take on a long-term client in a matter directly adverse to the dropped client?
The committee concluded that a firm could not cure a concurrent conflict by withdrawing from a current client, over that client's objection, in order to represent a long-term client directly against t…
Can town counsel who represents a man as estate executor advise the selectmen on revoking that man's liquor license for unpaid taxes?
The committee concluded that representing a sole-beneficiary executor counts as representing him individually, so town counsel could not advise the selectmen on the license revocations affecting that …
Can an attorney pay a referral fee to the lawyer-co-executor who hired him as the attorney for the estate?
The committee concluded that the attorney could not pay a forwarding fee to the lawyer-co-executor, because the co-executor hired him as a fiduciary rather than as a referring lawyer, making it a proh…
Can a former prosecutor who handled a criminal battery case privately represent the victim in a civil suit over the same battery?
The committee concluded that DR 9-101(B) barred a former assistant district attorney from representing the battery victim civilly against the defendant he had been assigned to prosecute, because the c…
What must appointed counsel do when an indigent client gets money after filing an indigency statement to obtain free representation?
The committee concluded that appointed counsel who learns the indigent client received funds after claiming indigency must ask the client to rectify the fraud, and if the client refuses, must either r…
Can insurance-defense counsel give the carrier a settlement-value opinion when the claim exceeds policy limits but can be settled within them?
The committee concluded that once defense counsel makes a good-faith determination that an award could exceed the policy limits and knows the case can settle within them, the lawyer may not give the c…
Must a criminal defense lawyer disclose that the client lied to a probation officer during the presentence investigation?
The committee concluded that if the client's effort to obtain a lighter sentence by lying to the probation officer is itself a crime, DR 7-102(B)(1) makes disclosure of the fraud on the court mandator…
Can a lawyer pay a fact witness, here a former employee of the client, for time spent preparing for and attending a deposition or trial?
The committee concluded that DR 7-109(C) bars paying ordinary fact witnesses beyond expenses and financial loss, but it read the rule not to reach a former employee of a client who must spend substant…
Can a law firm's lawyers volunteer as special prosecutors for a district attorney while other firm lawyers defend criminal cases in the same county?
The committee concluded a firm may take part in a volunteer-prosecutor program while the firm also does criminal defense in the same county only if strict screening, separate supervision, segregated f…
Can a divorce lawyer take a promissory note and mortgage on the marital home as a retainer or fee?
The committee concluded a lawyer may not take a note and mortgage on the marital home as a fee while the divorce is pending, because the home is likely subject matter of the litigation under DR 5-103(…
Can a lawyer represent both the bank and the borrower at a residential mortgage loan closing?
The committee concluded a lawyer may represent both lender and borrower to close an institutional mortgage loan in limited circumstances, after reviewing the documents for conflicts and obtaining the …
Can a lawyer reveal a former client's criminal record to warn an employer when the former client takes a job that puts vulnerable people at risk?
The committee concluded that if the lawyer believes the former client is 'reasonably likely' to intend a crime against the children in his care, the lawyer may, after trying to persuade the client to …
Can a criminal defense lawyer warn the authorities that the client's associates plan to murder a witness?
The committee concluded the lawyer has discretion to reveal enough information to prevent the murder: if the information is a confidence or secret, DR 4-101(C)(3) (and its analogy) permits disclosure …
If a newly hired government lawyer once represented a private party, can the rest of the government law office act against that party?
The committee concluded the new attorney is personally disqualified only if the prior representation is substantially related or he holds relevant confidences; even then the city solicitor may advise …
Can a lawyer give client names and billing details to an outside billing service without each client's consent?
The committee concluded a lawyer may give an independent billing service the information needed to bill clients without obtaining each client's consent, but under DR 4-101(D) the lawyer is responsible…
Can town counsel represent the selectmen against the planning board when the firm also regularly advises that board?
The committee concluded the planning board may be a current client of town counsel, but unlike with private clients, town counsel may represent the selectmen in opposing the board's appeal without the…
What must a lawyer in a civil case do after a client admits committing perjury during depositions?
The committee concluded that if the lawyer knows the client intends to repeat the perjury or to commit another crime using it, DR 4-101(C)(3) lets the lawyer reveal it and DR 7-102(B)(1) then makes di…
If a lawyer must be disqualified because the lawyer will be a witness, can the lawyer's firm still handle discovery and pretrial work?
The committee concluded that when a lawyer and firm are disqualified under DR 5-102 because the lawyer ought to be a witness and may give testimony prejudicial to the client, the firm should not conti…
Can a lawyer interview a former officer or trustee of the opposing organization without opposing counsel present?
The committee concluded that a lawyer may interview ex parte a former trustee of an opposing trust who witnessed the relevant events, because a former agent is not a 'party' under DR 7-104(A)(1); the …
Can a lawyer who left a firm sue the firm's former client when she never worked on that client's matter and holds no confidences?
The committee concluded that a lawyer who leaves a firm is not automatically barred from suing that firm's former client; she may take the matter if she holds no relevant confidences or secrets and th…
Can a law firm offer a union's members discounted legal fees and answer questions at the union hall without violating the anti-solicitation rules?
The committee concluded that discounting fees to union members is protected cooperation with a 'qualified legal assistance organization' under DR 2-103(E), not an improper payment to solicit business,…
When can a lawyer who used to represent a government agency later appear against it, and is the lawyer's new firm disqualified too?
The committee concluded that a former government lawyer may appear against his old agency in any matter in which he had no substantial responsibility while in government and where he misuses no agency…
Can a firm represent a town's school board while also defending criminal clients in cases brought by the town's police?
The committee concluded that a firm may represent an independently elected school board while defending criminal clients whose complainants are town police, because the school board and police are sep…
Can a financial services firm send its clients letters offering a law firm's services at reduced rates as a way to bring the law firm business?
The committee concluded that a law firm may not let a financial services agency solicit business for it by writing to the agency's clients offering the firm's services at reduced rates, because the re…
If a lawyer holds real estate closing funds, must the lawyer account to the client for any interest earned, and when may the funds go into an IOLTA account?
The committee concluded that once a lawyer deposits client closing funds in an interest-bearing account the lawyer must account for the interest, however small; whether funds may go in an IOLTA accoun…
Can a lawyer bring a personal injury suit on behalf of a minor child against the child's own parents when the lawyer represents or represented the parents?
The committee concluded that a lawyer may not name a parent as the child's next friend and sue that parent where it conflicts with the lawyer's representation of the parent (as in two of the three cas…
Can a law firm hold an educational seminar for clients and non-clients, hoping it brings in business, without it counting as prohibited solicitation?
The committee concluded that a law firm may hold an educational seminar for a mixed audience of clients and non-clients, and mail a brochure inviting them, without violating the solicitation rules, so…
Can a town's lawyer represent both the town and its police officers as co-defendants in a Section 1983 civil rights lawsuit?
The committee concluded that a town attorney may jointly represent the town and its officers in a Section 1983 suit only if it is objectively obvious he can adequately represent both and each consents…
Can a lawyer being sued for malpractice by a client keep representing that same client on other, unrelated matters?
The committee concluded that a lawyer sued for malpractice by a longstanding client is not subject to a per se bar on continuing to represent that client on unrelated matters or taking new ones, but o…
In a contingent fee case, which litigation costs must the client pay, and can the lawyer bill the client for an in-house investigator?
The committee concluded that under SJC Rule 3:05 a contingent fee client must be charged for out-of-pocket 'expenses and disbursements,' while other costs (overhead) may be charged only by a specific …
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Legal ethics opinions from the Massachusetts Bar Association interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.