Our Steadfast Commitment to Justice

by Martin Murphy

President’s Page

For lawyers—indeed, for anyone who values the rule of law, cares deeply about civil rights, and envisions our legal system as a force to protect the most vulnerable among us—September 2020 was an extraordinarily cruel month. On September 14, we were shocked and deeply saddened to learn of the sudden death of Supreme Judicial Court Chief Justice Ralph D. Gants. And only four days later, Supreme Court Associate Justice Ruth Bader Ginsburg, finally lost her long battle with pancreatic cancer.

The next issue of the Boston Bar Journal will be dedicated to Chief Justice Gants and his legacy. I’ll have much more to say there about his loss, which so many of our members felt deeply and personally.

But as I write this—less than two weeks after Election Day, and only a few days after the BBA’s 2020 Annual Meeting—my thoughts turn to a New Yorker essay paying tribute to Justice Ginsburg, written by our Annual Meeting keynote speaker, Harvard history professor Jill Lepore. Professor Lepore summed up Justice Ginsburg’s life this way: “Aside from Thurgood Marshall, no single American has so wholly advanced the cause of equality under the law.” One example: Justice Ginsburg’s dissent in Shelby County v. Holder , criticizing the Court’s decision to read the critical pre-clearance provisions of the Voting Rights Act of 1965 out of the statute. “Throwing out pre-clearance when it has worked and is continuing to work,” Justice Ginsburg wrote, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Justice Ginsburg’s opinion quoted Martin Luther King’s familiar statement: “the arc of the moral universe is long, but it bends toward justice.” But, as Professor Lepore pointed out, when Justice Ginsburg read her dissent in open court, she added her own coda: “The arc of the moral universe is long,” she said, “but it bends toward justice if there is a steadfast commitment to see the task through to completion.” (You can hear Justice Ginsburg read her dissent here).

A “steadfast commitment to see the task through to completion” has long been part of the BBA’s DNA. Living up to that commitment remains as important now as ever.

At the end of May, we watched in horror as George Floyd called out “I can’t breathe” over and over and over. In the weeks and months that followed, we saw the possibility of a national reckoning on the question of race—and the prospect that here in Massachusetts we might take concrete steps to ensure that all police officers protect and serve everyone, including Black men and women and other people of color. The BBA’s Task Force on Police Accountability—chaired by former Suffolk County District Attorney Ralph Martin, now General Counsel of Northeastern, and Natashia Tidwell, a partner at Saul Ewing and the Court-appointed monitor in the Ferguson case—is hard at work on this issue, and we believe the BBA can make a meaningful contribution to public debate.

As the election approached, the BBA sponsored programs that trained dozens of volunteers to protect voters’ rights as we prepared for what we expected—for good reason—would be one of the most contentious elections in our lifetimes.

BBA programs also trained dozens more to represent the many tenants affected when the eviction moratorium was lifted in October, and we are assisting the Governor’s Office and legal-services stakeholders in their Eviction Diversion Initiative—all to try to prevent a tsunami of evictions and resulting surge in homelessness.

And at our Annual Meeting last week, I was honored to present the BBA President’s Award to the many lawyers who put aside the personal challenges we all faced when the pandemic hit to think, not of themselves, but about the more than 14,000 individuals detained at Houses of Correction and prisons—thousands of whom had not yet been convicted of any offense. Their work changed the standard for release of non-violent offenders (something the BBA has long advocated), secured mandatory COVID-19 testing for individuals detained on civil immigration charges at the Bristol County House of Correction, and led to the release of thousands of individuals.

But, as recent COVID-19 outbreaks in the Essex County jail and at the MCI-Norfolk state prison remind us, much work remains to be done on this issue. So too does much work remain on the BBA’s other priorities: ensuring police accountability, addressing the school to prison pipeline, supporting civil legal aid (particularly following the end of the eviction moratorium), protecting the rule of law, among others. And, most of all, much more work remains if we are to be serious about dismantling the system of structural racism that that has worked itself so deeply into the fabric of our country and its laws.

I know I speak for my predecessors, for the BBA’s volunteer leaders, and for its extraordinary staff, when I say that I am optimistic—indeed, confident–that our members will meet Justice Ginsburg’s challenge and continue to prove their steadfast commitments to each of these tasks.  

Marty is a partner at Foley Hoag LLP where he represents individuals, companies, educational institutions, non-profits, and law firms in complex civil litigation, criminal investigations, and regulatory proceedings. He is President of the BBA and has chaired a number of BBA Committees, including the COVID-19 Response Working Group, Immigration Working Group, Working Group on Criminal Justice Reform, Death Penalty Working Group and the Task Force to Prevent Wrongful Convictions.


The Impact of Recent Revisions of the Massachusetts Rules of Professional Conduct on Confidentiality

Newhouse_MartinWoolf_Jeffreyby Martin J. Newhouse and Jeffrey D. Woolf

Heads Up 

The recent revisions by the Massachusetts Supreme Judicial Court (SJC) to the Massachusetts Rules of Professional Conduct effective July 1, 2015 included numerous changes to the rules governing confidentiality of client information, including substantial revisions of rule 1.6 (“Confidentiality of Information”).  The changes, as addressed herein, generally clarify a lawyer’s obligations under the Rules and also offer more helpful guidance on several points than was previously provided.

Rule 1.6:

  • The scope of information covered remains unchanged.  The SJC maintained a major difference between the Massachusetts and the ABA Model Rules, namely by continuing to limit the information covered by rule 1.6 only to “confidential information relating to the representation.”  (The ABA Model Rule covers all “information relating to the representation.”)
  • A clearer definition provided for “confidential information.”  In a very helpful step, the SJC also provided new comments, [3A] and [3B], clarifying what constitutes “confidential information.”  Comment [3A] defines confidential information as information relating to the representation of a client, whatever its source, that is (a) privileged; (b) likely to be embarrassing or detrimental to the client if disclosed; or (c) is information the lawyer has agreed to keep confidential.  Comment [3A] also provides a road map of what types of information would not be “confidential” under the rule.  Comment [3B] further explains the limitation of the rule to “confidential information” and explains how this change has been carried out throughout the Massachusetts Rules of Professional Conduct.
  • Expanding protection of non-confidential information.  In an interesting addition, the SJC warns in comment [4] that the prohibition against disclosing confidential information also prohibits any disclosure of information, while not itself protected under rule 1.6, that “could reasonably lead to the discovery of [protected] information by a third person.”  Included in this are hypotheticals that may lead others to “ascertain the identity of the client or the situation involved.”
  • Enlarging the scope of permissible disclosures. Most notably, the SJC has added two new exceptions to rule 1.6(b).  Rule 1.6(b)(4) expressly permits disclosure “to secure legal advice about the lawyer’s compliance with these Rules.”  Rule 1.8(b)(7) permits limited disclosure “to detect and resolve conflicts” when lawyers change employment or firm ownership changes.  In addition, the new rule 1.6(b)(3), along with revisions to rule 1.6(b)(1) and (2), clarify prior existing exceptions.  Significantly, rule 1.6(b)(1) continues to contain a provision, absent from the Model Rules, which authorizes the disclosure of confidential information “to prevent the wrongful execution or incarceration of another.”  Rule 1.6(b)(2) also continues the prior Massachusetts provision that permits disclosure to “prevent the commission of a criminal or fraudulent act,” without limiting this exception to conduct committed by “the client,” as exists under Model Rule 1.6(b)(2).  Thus the Massachusetts rule permits disclosure to prevent the commission of a crime or fraudulent conduct by a third person.  Also unlike Model Rule 1.6(b)(2), the Massachusetts rule does not require that the lawyer’s services must have been used in furtherance of the crime or fraud in order for disclosure to be permitted.  Permissive disclosure under rule 1.6(b)(2) is also not limited, as previously and under the Model Rules, to preventing conduct likely to cause substantial damage to property and financial interests of another; new rule 1.6(b)(2) additionally permits disclosure where substantial damage is likely to “other significant interests” of another.
  • Enhanced guidance with regard to disclosure exceptions. Comments [5] et seq. have been revised or wholly rewritten to provide more detailed and much needed guidance for lawyers seeking to understand whether disclosure is permitted or required.  For example, comment [12] discusses disclosure that may be required by other law; comment [15] provides guidance on dealing with a court order requiring disclosure; comments [13] and [14] deal in detail with the disclosures when lawyers change employment or firms change ownership.  Finally, comment [17] provides important guidance on how lawyers should exercise their discretion when an exception under rule 1.6(b) authorizes discretionary disclosure.
  • Addition of Rule 1.6(c). This new subsection requires lawyers to make reasonable efforts to prevent inadvertent or unauthorized disclosure of, or access to, confidential information protected under the rule.  New comments [18] and [19] provide, inter alia, that unauthorized access to or disclosure of confidential information “does not constitute a violation of paragraph [1.6](c) if the lawyer has made reasonable efforts to prevent the access or disclosure.” The comments discuss the factors to be considered as to whether reasonable efforts have been made.  Comment [18] cross-references comments [3] and [4] to rule 5.3 with regard to the sharing of information with non-lawyers outside the lawyer’s firm (e.g., an outside document management company).  Comments [18] and [19] confirm an attorney’s obligation to comply with all applicable state and federal privacy laws.  (Practice tip: be aware of your obligations under Mass. G.L. c. 93H (the Massachusetts security breach notification law) and the corresponding regulations, 201 CMR § 17.00 et seq.).

Rule 1.8(b) and 1.9(c)(1):

Although in a number of respects, the SJC’s revisions to the Massachusetts Rules of Professional Conduct have brought our rules into closer conformity with the ABA Model Rules, they have also preserved important distinctions.  As discussed above, the SJC retained our narrower definition of the scope of information covered by rule 1.6.

Similarly, while both rules 1.8(b) and 1.9(c)(1) parallel the ABA Model Rules in prohibiting the use of confidential information relating to the representation to the disadvantage of the client or, in the case of rule 1.9(c)(1), the former client, the SJC has retained in each rule the prohibition against using such information for the benefit of a third party or for the lawyer’s own benefit.  Under rule 1.8(b) such information may be so used if the client gives informed consent or such use is permitted or required by the rules.  Under rule 1.9(c)(1), such use is only allowed if permitted or required under rules 1.6, 3.3, or 4.1 with respect to the former client.  Rule 1.9(c) applies not only to a lawyer who has formerly represented a client in a matter but also if the lawyer’s present or former firm has formerly represented the client in a matter.

New Rule 1.18:

On the other hand, the SJC has not hesitated to adopt aspects of the ABA Model Rules that fill gaps in or represent improvements to the Massachusetts ethics rules.  One such example is the SJC’s adoption of Model Rule 1.18, which defines the duties owed to prospective clients.  The new rule makes it an ethical violation for a lawyer to engage in conduct for which the lawyer  would previously have been liable in tort for violating confidentiality obligations to a prospective client:

  • Under rule 1.18(b), even when no client-lawyer relationship is formed with the prospective client, a lawyer may not use or disclose confidential information learned from the prospective client, except as rule 1.9 would permit in the case of a former client.
  • Under rule 1.18(c), a lawyer who has received confidential information from a prospective client may not take on a representation materially adverse to the prospective client in the same or substantially related matter if the confidential information received could be significantly harmful to the prospective client.  If a lawyer is disqualified under this sub-section, no lawyer in the lawyer’s firm may knowingly undertake or continue the representation adverse to the prospective client.
  • However, rule 1.18(d) provides that, even when the lawyer has received disqualifying information from the prospective client, representation in the adverse matter is permitted if (1) both the affected and the prospective client give written informed consent or the lawyer who received the information took reasonable precautions to limit the information from the prospective client and is timely screened, as defined in rule 1.10(e), and the prospective client is promptly given written notice.

 Rule 1.0 (former Rule 9.1):

“Definitions” in the Massachusetts Rules of Professional Conduct used to be found in rule 9.1.  Consistent with the ABA Model Rules, this has been renamed as “Terminology” and renumbered as rule 1.0.  Three new definitions (and corresponding commentary) have been added:  “informed consent”; “confirmed in writing”; and “writing” (or “written”).  The new Massachusetts definitions are largely consistent with the ABA Model Rules.

New Rule 4.4(b):

The SJC also has added rule 4.4(b), which is identical to the corresponding ABA Model Rule, and for the first time addresses a lawyer’s obligation upon receipt of documents or electronic information that was inadvertently sent by opposing lawyers or parties.  Rule 4.4(b) requires a lawyer receiving such documents or information to notify the sender promptly, in order that (as stated in comment [2]) the sender may take protective measures.  Comments [2] and [3] provide a good discussion of the problem the rule addresses.  Importantly, comment [2] brings metadata in electronic documents within the purview of rule 4.4(b) “only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”   Comment [3] recognizes a lawyer’s professional discretion to return or delete such documents unread where the law does not require other action.

In conclusion, the reader is directed to the “Report of the Standing Advisory Committee on the Adoption of Revised Rules of Professional Conduct Effective July 1, 2015,” for a further discussion of these and other changes.

Martin J. Newhouse, President of the New England Legal Foundation, is a member of the SJC Clients’ Security Board and BBA Ethics Committee.

Jeffrey D. Woolf is an Assistant General Counsel to the Board of Bar Overseers and is a member of the BBA Ethics Committee.