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 draft a client's estate plan that leaves a gift to a charity where the lawyer is an officer or board member?
Yes, but only with the client's informed consent confirmed in writing. The lawyer's leadership role at the charity is a personal-interest conflict under Rule 1.7(a)(2), and the lawyer should tell the …
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…
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 lawyer represent a client before a town planning agency when a firm colleague sits on the same town's zoning board of appeals?
Yes, where the zoning board has no interest or jurisdiction in the matter. The opinion finds no Rule 1.7 conflict because the colleague's board has no stake in the planning-agency decision.
Which state's ethics rules govern a Massachusetts-licensed civilian Navy lawyer advising the Navy from a base outside Massachusetts?
Federal, not Massachusetts, professional responsibility law governs. Under the Massachusetts choice-of-law rule (Rule 8.5(b)), the predominant effect of the conduct is not in Massachusetts, so the com…
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jointly represents an employer and a foreign worker, must the lawyer tell the employer the worker's work authorization was revoked even though the worker objects?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…
Can a lawyer take a second guardian ad litem appointment when the new role would require approving the lawyer's own prior GAL bills?
Not without a fix. The opinion concludes that reviewing one's own prior invoices is a non-waivable conflict under Rule 1.7(b) because the incompetent ward cannot consent, so the lawyer must decline un…
If a lawyer advised a state agency in private practice and is then appointed its commissioner, is she barred from working on those same matters?
No, not automatically. The opinion concludes Rule 1.11(c)(1) is aimed at a lawyer changing sides or clients, not at a lawyer who keeps serving the same client (the agency) in a new role, so it should …
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 draft a client's will that names the lawyer as executor and then hire herself as counsel to the estate?
There is no per se bar, but the lawyer's personal interest in the fiduciary and counsel fees creates a Rule 1.7 conflict. The lawyer must exercise independent judgment under Rule 2.1 and may take thes…
Can a lawyer representing a seller accept the buyer's offer to hire her for a later resale of the same property?
Only if the lawyer reasonably perceives no conflict in the current representation and both parties consent after full disclosure; otherwise she should decline. The opinion treats even a pending offer …
Can a lawyer represent a client's son in a guardianship petition against that same long-time client?
No, on these facts. The lawyer would be adverse to a current or former client and could not satisfy the consent requirements of Rules 1.7 and 1.9, and she is also likely to be a necessary witness, whi…
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 keep a valuable gift from a client and prepare the gift tax return for it?
A lawyer should not accept a substantial gift without first advising the client to get independent counsel, and may not prepare the gift tax return or any instrument that effects the transfer to the l…
Can a municipal solicitor represent the city before a zoning board that the solicitor also represents?
Normally yes. Because the dual role is mandated by the municipal charter and is a common feature of government lawyering, the solicitor may appear before a client agency in unrelated matters. But Rule…
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…
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…
When a municipal lawyer advised a department head in his official capacity, can the lawyer later oppose that former official in his own suit against the city and use his deposition to impeach him?
Yes. The committee concludes the lawyer's client was always the municipality, not the official personally, so Rule 1.9's former-client duties do not apply and the official-capacity testimony may be us…
Can a lawyer represent two clients developing adjoining parcels when one client wants to oppose the other's zoning permit, and can the lawyer drop one client to keep the other?
Not simultaneously, unless both clients consent and the lawyer reasonably believes the dual representation will not harm either relationship. Dropping one client may be allowed only if the conflict wa…
Can a lawyer who represents a husband and wife as co-executors of an estate also represent the wife in her divorce against the husband, and can the lawyer fix the conflict by dropping the husband?
Not over the husband's objection, because the co-executors are also substantial beneficiaries, so the lawyer is treated as representing the husband individually. With consent it depends on an objectiv…
Can a lawyer be 'of counsel' to two different law firms at the same time?
The committee concluded a lawyer could be of counsel to two firms if he did regular, continuous legal work for both, but the relationship made the two firms one for conflict-checking and required disc…
Can a lawyer subpoenaed by one former joint client to testify against the other accept witness payments for his time and trial preparation?
No. The committee concluded that although Rule 3.4(g) generally allows witness payments, a lawyer who jointly represented both former clients may not accept them from one against the other, because eq…
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…
Can a lawyer serve as a testifying expert against a former client in a matter substantially related to the lawyer's prior representation?
The committee concluded a lawyer ought not act as a testifying expert against a former client in a substantially related matter, even if the lawyer claimed to hold no relevant confidential information…
After the only lawyer who handled a client's matter leaves the firm, can the firm take on a substantially related matter against that former client?
The committee concluded that once the lawyer who represented the former client left the firm, the firm could represent an adverse interest in a substantially related matter so long as no remaining law…
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 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 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…
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…
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…
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 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…
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 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…
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…
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 …
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 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…
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 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…
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 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 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…
Can a lawyer act as a divorce mediator, draft the separation agreement, and team up with a non-lawyer counselor?
The committee concluded that a lawyer may serve as a divorce mediator (alone or with a lay counselor) if he explains that he represents neither party, warns of the risks of proceeding without independ…
Can a lawyer who sues an insurer's policyholders for personal injury clients also take real estate work from that insurer's mortgage department?
The committee concluded that a lawyer representing personal injury plaintiffs against an insurer's insureds may not also do mortgage-department work for that insurer unless all parties consent after f…
Can a lawyer buy warrants or stock from a corporate client whose public stock offering the lawyer is handling?
The committee concluded that a lawyer's purchase of warrants issued by a corporate client to fund a public offering the lawyer is advising on is not in itself a violation, because the rule barring a p…
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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.