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 Massachusetts lawyer list citations to published cases the lawyer handled on the firm website without client consent?
Not always. A published opinion can still contain confidential information under Rule 1.6, so if the case details are embarrassing or detrimental and not generally known, the lawyer must get the clien…
Can a Massachusetts lawyer accept a fee from a software vendor for referring clients to the vendor's service?
Only with the client's informed consent in writing, and sometimes not at all. The payment triggers the lawyer's duties under Rules 1.8(a), 1.7, and 1.6, and where the conflict is too strong the consen…
Must a lawyer report another lawyer's misconduct to bar counsel when the lawyer learned of it from a document that may be client confidential information?
Rule 8.3 requires a report when the lawyer has a firm belief the violation more likely than not occurred. But if the supporting document is the client's confidential information under Rule 1.6, the re…
After a client dies, can the lawyer release the client's will-execution file during a will contest when no estate representative has been appointed?
No. The duty of confidentiality survives the client's death, and until a personal representative or other fiduciary is appointed who can consent, the lawyer may not release the file absent a court ord…
Can a lawyer represent a second client against a defendant the lawyer is already suing for a different client?
It depends on the facts. The lawyer must evaluate whether confidentiality or conflict problems exist under Rule 1.7 and discuss them with both clients before taking on the second representation; if ei…
Can a Massachusetts lawyer store confidential client files in a cloud service like Google Docs?
Yes, if the lawyer makes reasonable efforts to confirm the provider's terms and privacy practices protect client confidences under Rule 1.6(a). The lawyer must honor a client's instruction not to use …
Must a lawyer report another lawyer's deceptive conduct to bar counsel when the facts came from the client's confidential information?
The deception is the kind of serious dishonesty Rule 8.3(a) requires reporting. But where the lawyer's knowledge is protected by Rule 1.6, Rule 8.3(c) means the lawyer needs the client's consent befor…
When can a lawyer disclose a decedent's estate information to the named beneficiaries without the current client's consent?
Information that is 'generally known' (the death, the lack of a probate filing) may be disclosed, but details learned only through the representation stay confidential. As the decedent's former lawyer…
When a lawyer jointly represents an employer and a foreign worker, must the lawyer tell the employer the worker's work authorization was revoked even though the worker objects?
Yes. The opinion concludes that under the joint-client rules (Rule 1.7) and the duty to keep a client informed (Rule 1.4), the lawyer must tell the employer the work authorization was revoked, even ov…
If a stranger sends confidential information through a 'contact us' email link on a law firm's website, must the lawyer keep it confidential, and can the firm still oppose that sender?
Absent a disclaimer, the lawyer must keep the information confidential under Rule 1.6 even after declining the matter. Whether the firm may then oppose the sender turns on whether that confidentiality…
Can a lawyer tell the police that a client's business partner is the suspect in a crime against the lawyer?
It depends on the source. If the lawyer's suspicion comes from confidential client information, disclosure requires the client's consent after consultation. If it comes from the lawyer's own direct ob…
Can a law firm let a software vendor access client files on its system for technical support?
Yes. Clients are deemed to impliedly authorize the access under Rule 1.6(a), as with a billing service, but the firm must make reasonable efforts under Rule 5.3(b) to ensure the vendor protects the co…
What can a lawyer do when a depressed client won't help prepare for trial and forbids a continuance?
Under Rule 1.14 the lawyer may enlist the client's family and a close friend to persuade him to cooperate, while keeping his depression confidential. If that fails, the lawyer must weigh the harm of g…
Can a lawyer for a joint venture sue one of its partners on behalf of a new client in an unrelated matter?
Only after checking several conflict questions. The lawyer must first decide whether representing the joint venture also created an attorney-client or fiduciary relationship with that partner, and whe…
What should a lawyer do when a discharge letter may have been coerced by a controlling family member?
A discharged lawyer normally must turn over the file, but where circumstances suggest the client lacked capacity to make a considered decision the lawyer should confirm the client's real wishes. If th…
Can a lawyer take a case against a former client when the two matters share the same property but different work?
It depends on whether the matters are 'substantially related' under Rule 1.9(a), which Massachusetts has not settled between an 'essentially the same issues' test and a 'same factual context' test. It…
Can a lawyer break client confidentiality to alert family or authorities when a client threatens suicide?
The committee concluded a lawyer could notify family, protective agencies, police, or the client's doctors to prevent a threatened suicide if she reasonably believed the threat was real and the client…
Must defense counsel follow an insurer's litigation guidelines that mandate paralegal tasks and require billing records to go to an outside auditor?
The committee concluded counsel had to independently judge each task and could not delegate work a paralegal could not do competently, and could not send invoices containing the insured's confidential…
Can a lawyer report a client's unpaid legal bills to credit reporting agencies to pressure the client to pay?
No. The committee concluded a client's indebtedness for legal fees is confidential information, and the fee-dispute exception permits disclosure only to prove the claim in an action to collect, not in…
Can a lawyer use unencrypted email to communicate confidential information with a client?
The committee concluded that in usual circumstances using unencrypted internet email did not violate Rule 1.6, because lawyer and client have a reasonable expectation of privacy, subject to caveats ab…
When a lawyer for an estate's co-administrators learns that a beneficiary stole estate funds and that one co-administrator may be implicated, must the lawyer tell the other co-administrator?
The committee concluded the lawyer had to inform the other co-administrator of the theft, because the duty owed to that client trumped any confidentiality owed to the implicated client; whether furthe…
If opposing counsel mistakenly mails a lawyer a privileged letter meant for her own client, can the lawyer keep it and use it?
The committee concluded that, assuming it would materially benefit his client, the lawyer could resist opposing counsel's demand to return a misdirected privileged letter and could argue to the tribun…
If a lawyer discovers that her partners defrauded government agencies to shield firm clients from penalties, must she tell the clients, the agency, and bar counsel?
The committee concluded the lawyer had to inform the affected clients, act to avoid the consequences of the fraud on the state agency, and report her partners to Bar Counsel, because Rule 1.6(b)(1) le…
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…
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…
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 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 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…
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…
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 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 …
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…
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…
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 …
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 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 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…
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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.