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Massachusetts

ABA Model Rule 8.4(g) Efforts in Massachusetts


Status of Action in Massachusetts

December 2020
Status - The Standing Advisory Committee on the Rules of Professional Conduct of the Massachusetts Supreme Judicial Court is considering amending the Massachusetts Rules of Professional Conduct relating to harassment and discrimination.

The Supreme Judicial Court's Standing Advisory Committee on the Rules of Professional Conduct ("Committee") provided notice that it is seeking public comment on several proposed revisions to the Massachusetts Rules of Professional Conduct. The proposed amendments relate to harassment and discrimination and include changes to Rules 3.4 and 4.4 and their accompanying Comments. The Committee will make its recommendations to the Justices of the Supreme Judicial Court following receipt and review of public comments.

The following related documents are available for review:

Comments are due by February 1, 2021, and should be directed to The Standing Advisory Committee on the Rules of Professional Conduct, c/o Chip Phinney, Deputy Legal Counsel, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston MA 02108. Comments may also be sent by email to chip.phinney@jud.state.ma.us. Comments received will be made available to the public. 


Proposed Rule Changes in Massachusetts

Current Rule 3.4 Fairness to opposing parties and counsel
A lawyer shall not: 

(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; 

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; 

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; 

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; 

(e) in appearing before a tribunal on behalf of a client: 

     (1) state or allude to any matter that the lawyer does not reasonably believe is relevant or that will
           not be supported by admissible evidence; 

     (2) assert personal knowledge of facts in issue except when testifying as a witness; or 

     (3) assert a personal opinion as to the justness of a cause, the credibility of a witness, the culpability
           of a civil litigant or the guilt or innocence of an accused, but the lawyer may argue, upon analysis
           of the evidence, for any position or conclusion with respect to the matters stated herein; 

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: 

     (1) the person is a relative or an employee or other agent of a client; and 

     (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by
           refraining from giving such information; 

(g) pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his or her testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: 

     (1) expenses reasonably incurred by a witness in preparing, attending or testifying; 

     (2) reasonable compensation to a witness for loss of time in preparing, attending or testifying; and 

     (3) a reasonable fee for the professional services of an expert witness; 

(h) present, participate in presenting, or threaten to present criminal or disciplinary charges solely to obtain an advantage in a private civil matter; or 

(i) in appearing in a professional capacity before a tribunal, engage in conduct manifesting bias or prejudice based on race, sex, religion, national origin, disability, age, or sexual orientation against a party, witness, counsel, or other person. This paragraph does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, or sexual orientation, or another similar factor is an issue in the proceeding. 

Current Comment
[1] The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. 

[2] Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to evidentiary material generally, including computerized information. Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances. 

[3] With regard to paragraph (b), it is not improper to pay a witness as provided in paragraph (g). 

[4] Paragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See also Rule 4.2

[5] Paragraph (g) concerns the payment of funds to a witness. Compensation of a witness may not be based on the content of the witness’s testimony or the result in the proceeding. A lawyer may pay a witness reasonable compensation for time lost and for expenses reasonably incurred in preparing for or attending the proceeding. A lawyer may pay a reasonable fee for the professional services of an expert witness. 

[6] Paragraph (h) prohibits filing or threatening to file disciplinary charges as well as criminal charges solely to obtain an advantage in a private civil matter. The word “private” makes clear that a government lawyer may pursue criminal or civil enforcement, or both criminal and civil enforcement, remedies available to the government. This Rule is never violated by a report under Rule 8.3 made in good faith because the report would not be made “solely” to gain an advantage in a civil matter. 

[7] Paragraph (i) concerns conduct before a tribunal that manifests bias or prejudice based on race, sex, religion, national origin, disability, age, or sexual orientation of any person. When these factors are an issue in a proceeding, paragraph (i) does not bar legitimate advocacy.

Proposed Rule 3.4 Fairness to opposing parties and counsel
A lawyer shall not: 

[No change in paragraphs (a) through (f) of Rule 3.4]

(g) pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his or her testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in preparing, attending or testifying; (2) reasonable compensation to a witness for loss of time in preparing, attending or testifying; and (3) a reasonable fee for the professional services of an expert witness; or

(h) present, participate in presenting, or threaten to present criminal or disciplinary charges solely to obtain an advantage in a private civil matter.

Proposed Comment Rule 3.4 Fairness to opposing parties and counsel
[No change to Comments 1 through 3 to Rule 3.4]

[3A] The obligations covered by paragraph (c) include, where the rules of the tribunal so require, obligations to cooperate in scheduling and case management and to meet and B-1-1 confer in good faith to resolve or narrow issues before submitting them to the tribunal for decision.

[No change to Comments 4 through 6 to Rule 3.4; Comment 7 is deleted.]


Current Rule 4.4 Respect for rights of third persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. 

(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. 

Current Comment
[1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship. 

[2] Paragraph (b) recognizes that lawyers sometimes receive a document or electronically stored information that was mistakenly sent or produced by opposing parties or their lawyers. A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted. If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning or deleting the document or electronically stored information, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document or electronically stored information has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person. For purposes of this Rule, “document or electronically stored information” includes paper documents, email and other forms of electronically stored information, including embedded data (commonly referred to as “metadata”), that is subject to being read or put into readable form. Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer. 

[3] Some lawyers may choose to return a document or delete electronically stored information unread, for example, when the lawyer learns before receiving it that it was inadvertently sent. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or delete electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.

Proposed Rule 4.4 Respect for rights of third persons
(a) In representing a client, a lawyer shall not

     (1) use means that have no substantial purpose other than to embarrass, harass, delay, or burden a third person,

     (2) use methods of obtaining evidence that violate the legal rights of such a person, or

     (3) engage in conduct that manifests bias or prejudice based on race, sex, marital status, religion, national origin, disability, age, sexual orientation or gender identity against such a person. This clause (3) does not preclude legitimate advice or advocacy otherwise consistent with these Rules.

[No change to paragraph (b) of Rule 4.4]

Proposed Comment 4.4 Respect for rights of third persons
[1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons, including other parties, counsel, witnesses, court personnel, and other participants in the legal process. It is impractical to catalogue catalog all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.

[1A] It is also impractical to catalog all the ways in which a person may be harassed. A non-exhaustive, illustrative list of examples of harassment includes: aggressive physical conduct that would cause a reasonable person to feel threatened or the threat to use same; following a person (or causing another to follow a person) in or about a public place or places; communicating to or about such other person any lewd, lascivious or threatening words, language or images; communicating (or causing another to communicate) repeatedly in an anonymous manner or repeatedly at extremely inconvenient hours; and engaging in a course of conduct that is intended to cause fear, distress, or physical or psychological harm.

[1B] Professional actions by an attorney that manifest bias or prejudice in violation of paragraph (a)(3) undermine confidence in the legal profession and strike at the heart of the legal system, under which all persons are to be treated equally and with equal dignity. Paragraph (a)(3) concerns conduct in the representation of a client that manifests bias or prejudice based on race, sex, marital status, religion, national origin, disability, age, sexual orientation or gender identity of any person.

[No further changes to Comments to Rule 4.4]


Current Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; 

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; 

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; 

(d) engage in conduct that is prejudicial to the administration of justice; 

(e) state or imply an ability (1) to influence improperly a government agency or official or (2) to achieve results by means that violate the Rules of Professional Conduct or other law; 

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; 

(g) fail without good cause to cooperate with the Bar Counsel or the Board of Bar Overseers as provided in S.J.C. Rule 4:01, § 3 ; or 

(h) engage in any other conduct that adversely reflects on his or her fitness to practice law. 

Current Comment
[1] Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf. Paragraph (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take. 

[2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. 

[3] [Reserved] 

[4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law. 

[5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization. 

[6] Paragraph (e) prohibits the acceptance of referrals from a referral source, such as court or agency personnel, if the lawyer states or implies, or the client could reasonably infer, that the lawyer has an ability to influence the court or agency improperly. 

[7] Paragraph (h) prohibits conduct that adversely reflects on a lawyer's fitness to practice law, even if the conduct does not constitute a criminal, dishonest, fraudulent, or other act specifically described in the other paragraphs of this Rule.