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 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 Massachusetts lawyer let a client use the lawyer's letterhead to send demand letters to the client's delinquent customers?
No. Letting a non-lawyer client use the firm's letterhead is a false and misleading communication under Rule 7.1. A lawyer may send such letters only after a conflicts check, a competence-based inquir…
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…
When a lawyer moves to a new firm and clients follow, do the old firm's fee agreements still work or must new ones be signed?
New engagement letters should be signed for hourly matters and must be signed for contingent matters, even if no terms change. Any material change to the terms after the representation began must be j…
Can a lawyer send a Facebook friend request to an unrepresented opposing party to see their nonpublic posts?
Only if the request discloses that the sender is the party's lawyer. The opinion holds that friending an unrepresented adversary without revealing the lawyer's identity and role would be a misrepresen…
When buying a retiring lawyer's practice, can the purchase price include a share of future fees from that lawyer's current, former, and newly referred clients?
The price may include a share of future fees from the retiring lawyer's current and former clients, but not fees from new clients the retired lawyer refers, because a retired lawyer may not share fees…
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.
Can a lawyer pay a commercial website that lets prospective clients post their needs and invite proposals, paying only when a client retains the lawyer?
Yes. Because the client initiates contact through the website and requests proposals, the program is permitted advertising under Rule 7.2 rather than prohibited paid solicitation under Rule 7.3(f), an…
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…
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 …
Which state's contingent-fee limits apply when a Massachusetts lawyer sues in a tribal court in another state for a Massachusetts client?
The rules of State X or its tribal court govern the contingent fee, not the Massachusetts rules, under the choice-of-law rule in Rule 8.5(b) for conduct before a tribunal in another jurisdiction.
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…
Can a lawyer advise a client to ask a represented adverse party to do something, and can the lawyer hand that party a document to sign?
A lawyer may advise her client to urge a represented adverse party to take action (here, release an attachment) without violating Rule 4.2 or Rule 8.4(a), because parties may communicate directly. But…
What must an appointed criminal defense lawyer do after learning the client lied about being indigent to get a court-appointed lawyer?
The lawyer must urge the client to correct the false affidavit. If the client refuses, the lawyer may serve without compensation; if unwilling to do that, the lawyer must seek to withdraw and disclose…
Can a lawyer withdraw and dispose of escrowed settlement property when the client stops responding and the settlement cannot be completed?
The client's silence is good cause to withdraw under Rule 1.16, but the lawyer also holds escrowed property as a fiduciary to both sides. The opinion has the lawyer notify both parties and, failing ag…
Can a lawyer give social gifts to, or buy meals for, judges and court staff?
The opinion declines to give definitive advice. Because Rule 8.4(f) bars a lawyer from offering a judge anything the judge is forbidden to accept, the analysis runs through the Code of Judicial Conduc…
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 charge a contingent fee to collect past-due child support after the divorce is already final?
Yes. The opinion concludes Rule 1.5(d)(1)'s ban on contingent fees in domestic-relations matters does not reach collecting post-judgment support arrears once the divorce is final and the support amoun…
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…
Can a lawyer join a for-profit business networking group that requires members to exchange client referrals?
No. The opinion concludes that a lawyer's commitment to give business referrals in exchange for client referrals is 'giving something of value' to solicit employment, barred by Rule 7.3(f). A for-prof…
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 trial lawyer ask the judge to instruct jurors that they may talk to the lawyers after the verdict?
Only if the requested instruction states the Rule 3.5(d) limits completely, including that the lawyer may never ask about the jury's deliberations. If the lawyer's purpose is to get jurors talking abo…
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 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 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…
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 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 lawyer contact a represented opposing party just to get their lawyer's contact information?
Yes. A communication intended solely to learn the identity of and contact information for the other person's lawyer is not a communication 'about the subject of the representation,' so it does not vio…
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…
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 draft an advertisement for a client to run under the client's own name when the lawyer could not run it herself under the trial-publicity rule?
The committee concludes there is a substantial risk of violating Rules 3.6 and 8.4(a). A lawyer cannot accomplish through the client, as the client's mouthpiece, what Rule 3.6 bars her from doing dire…
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…
Do the Massachusetts ethics rules govern whether a Massachusetts-licensed federal government lawyer may interview a corporate party's former employees in litigation before a federal agency outside Massachusetts?
No. The committee concludes that under Massachusetts choice-of-law principles the Supreme Judicial Court would not apply Rule 4.2 to this out-of-state federal-agency litigation; the forum's own rules …
Can a lawyer interview a corporation's former employees in litigation without the consent of the corporation's counsel?
As a general rule, yes. The committee concludes Rule 4.2's anti-contact bar does not apply to a corporation's former employees, unless the former employee is separately represented or holds privileged…
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 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…
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…
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 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…
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…
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…
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 sue a former client pro se for unpaid fees from a non-litigation matter, and must the lawyer try mediation first?
The committee concluded a lawyer could sue a former client pro se for unpaid fees without violating Rule 3.7, because the right of self-representation overrode the rule, and that the lawyer should con…
Is a bar association's online member directory with links to lawyers' web pages a referral service, and when do lawyer web sites count as advertising or solicitation?
The committee concluded that an online bar directory was not a lawyer referral service and that the bar need not police members' linked pages; informational lawyer web sites need not be labeled advert…
Can a lawyer provide limited 'unbundled' help to a pro se litigant, including ghostwriting pleadings, without disclosing the involvement to the court?
The committee concluded a lawyer could give limited background advice and counseling to a pro se litigant under Rule 1.2(c), but that undisclosed drafting of litigation documents, especially pleadings…
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…
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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.