Ethical Lawyering in Massachusetts

1002 Pages·2018·4.804 MB·English

by  James S. Bolan

Ethical Lawyering
in Massachusetts
James S. Bolan et al.
M C L E
NEW ENGLAND
Keep raising the bar.®
Ethical Lawyering
in Massachusetts
4TH EDITION 2015,
WITH 2018 SUPPLEMENT

EDITOR Sara N. Holden
James S. Bolan W. Terence Jones
Ronald F. Kehoe
AUTHORS Patrick G. Kiernan
Martha R. Bagley Gwen Nolan King
Philip N. Beauregard Melissa Langa
James S. Bolan Richard L. Neumeier
Robert M. Buchanan Donald L. Pitman III
Cathleen C. Cavell Paul M. Rezendes
Jerry Cohen Regina E. Roman
Timothy J. Dacey III Gilda Tuoni Russell
Bruce T. Eisenhut Molly R. Soiffer
Elaine M. Epstein David Sokol
Michael Franco Arabela Thomas
Daniel K. Gelb Prof. Paul R. Tremblay
Gail Kleven Gelb Jeffrey D. Woolf
Richard M. Gelb
2160266B04—4th Edition 2015
2180592S01—1st Supplement 2018
© 2015, 2018 by Massachusetts Continuing Legal Education, Inc. All rights reserved. Published
2018. Permission is hereby granted for the copying of pages or portions of pages within this book by
or under the direction of attorneys for use in the practice of law. No other use is permitted without
prior written consent of Massachusetts Continuing Legal Education, Inc.
Printed in the United States of America
This publication should be cited: Ethical Lawyering in Massachusetts (MCLE, Inc. 4th ed. 2015 &
Supp. 2018)
Library of Congress Control Number: 2015948093
2015 Edition ISBN: 1-57589-920-5
2018 Supplement ISBN: 1-68345-073-6
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PREFACE
MCLE has long held the belief that confronting ethical challenges should be not
simply an academic exercise, but rather an ongoing discipline of everyday
practice. Consequently, MCLE seminars and practice manuals have included
observations on ethical issues and tips on how to address them. With Ethical
Lawyering in Massachusetts, MCLE has consolidated a wealth of experience and
practical information into a focused reference on legal ethics. Although the book
provides an overview of controlling authority, the emphasis is on alerting attorneys
to precautions they can take in conducting their practices so as to avoid ethical
violations—and the potential disciplinary or malpractice proceedings they may
trigger.
Ethical Lawyering in Massachusetts covers the entire spectrum of legal practice,
from considering ways to acquire legal business through getting paid for the
services rendered. Some of the concerns are classic, such as conflicts of interest,
the scope of the attorney-client relationship, and limits on contingent fee
arrangements. Some are relative newcomers, as increased competition in the legal
marketplace has required more attention to legal advertising, firm dissolutions, and
out-of-state practice. In addition to addressing ethical problems encountered by all
attorneys, Ethical Lawyering in Massachusetts focuses on issues unique to
particular practice areas, including business and commercial law, insurance
defense, intellectual property, estate planning, divorce and family law, tax, real
estate, and civil and criminal litigation.
Making ethical lawyering come alive for practitioners has required a substantial
investment of volunteer time and effort. If the practical approach we have used
helps Massachusetts attorneys meet the ethical challenges of daily practice, the
investment will have been well worth it.
ACKNOWLEDGMENTS
MCLE Press benefits greatly from the volunteer contributions of editors, authors,
and advisors, most of whom are Massachusetts attorneys and judges. Their will-
ingness to share their time and expertise is an integral part of our continuing
effort to educate the bar and help enhance the quality of legal services provided
to the public.
Publication of Ethical Lawyering in Massachusetts was made possible by the
efforts of numerous dedicated volunteers. First, MCLE extends its appreciation
to the editor, James S. Bolan, who has provided outstanding editorial leadership
as well as expert substantive input, including authorship of one of the book’s
4th Edition, Supplement 2018 iii
ETHICAL LAWYERING IN MASSACHUSETTS
chapters and coauthorship of another. Much appreciation goes to the Honorable
Kenneth Laurence (Ret.) as well, who for many years served as the book’s co-
editor. We also gratefully acknowledge all of the authors and thank them for
their willingness to share their expertise. This book would not have been possible
without their talent and dedication. We thank all of these volunteers for their
time, their contributions, and their genuine commitment to the mission of con-
tinuing legal education.
We also would like to acknowledge the work of dedicated MCLE staff members
in producing this book.
On behalf of Jack Reilly, Publisher, Maryanne Jensen, Editor-in-Chief, and the
MCLE Board of Trustees, our appreciation extends to all whose talent and hard
work helped create and revise this publication.

John M. Lawlor
Publications Attorney
June 2018

iv 4th Edition, Supplement 2018
ABOUT THE EDITOR
JAMES S. BOLAN is a partner of Brecher, Wyner, Simons, Fox & Bolan, PC, in
Newton. He represents lawyers and law firms in Board of Bar Overseers and
malpractice matters, partnership breakups, departures, and law firm litigation.
He also provides counsel on professional responsibility, practice, and ethics mat-
ters; malpractice defense and prevention; risk management; and law firm audits.
Previously, he was with Bolan, Frank & Graeber, Chaplin & Milstein, and the
Massachusetts Board of Bar Overseers. Mr. Bolan is a graduate of Boston College
Law School and Trinity College.
ABOUT THE AUTHORS
MARTHA R. BAGLEY is a member of Weston Patrick, PA, in Boston. She pro-
vides domestic relations, probate, and business clients with comprehensive legal
services, including litigation planning, negotiation of settlements, trial advocacy,
and appellate representation. In addition to private clients, Ms. Bagley consults
with other attorneys providing expertise in trial preparation, evidentiary issues,
and the presentation of evidence. Prior to joining Weston Patrick, she practiced
law at Bagley & Bagley, PC, in Boston. She is a member of the Massachusetts,
Boston, and Essex County Bar Associations. She also serves as the secretary-
treasurer of the Boston Port and Seamen’s Aid Society. Ms. Bagley is a graduate
of Boston College and New England Law | Boston.
PHILIP N. BEAUREGARD is the founding partner of the Law Offices of
Beauregard, Burke & Franco in New Bedford. He has practiced extensively in
civil litigation in both the state and federal courts since 1972. Mr. Beauregard
has served as city solicitor for the City of New Bedford and as town counsel for
several towns. He has tried hundreds of jury and nonjury cases and has argued
more than thirty appeals in the state and federal courts. He has achieved several
verdicts and settlements in excess of $1 million for private clients. He has taught
trial advocacy at the University of Massachusetts School of Law–Dartmouth and
has lectured on civil trial practice. He graduated magna cum laude from the Uni-
versity of Notre Dame and received a J.D. from Georgetown University Law
Center, where he was a member of the Georgetown Law Journal.
ROBERT M. BUCHANAN is of counsel to the Boston law firm of Sullivan &
Worcester LLP, where he concentrates in antitrust and legal ethics. For seven
years, he served as a hearing officer on disciplinary cases for the Board of Bar
Overseers, and since 1986 he has been a member of the Massachusetts Bar As-
sociation committee on professional ethics. A Weston resident, Mr. Buchanan is
4th Edition, Supplement 2018 v
ETHICAL LAWYERING IN MASSACHUSETTS
a former chair of the Weston Finance Committee and was the town moderator
from 1980 to 2010.
CATHLEEN C. CAVELL practices as legal counsel with the Massachusetts De-
partment of Elementary and Secondary Education in Malden, concentrating on
professional misconduct by educators. She is also of counsel to Thomas A. Mul-
len, PC, in Wakefield. From 2003 to 2008, she taught professional responsibility
as an adjunct professor at Boston College Law School and at the Massachusetts
School of Law in Andover. From 1990 to 2001, she was an assistant bar counsel
at the Office of the Bar Counsel, which investigates and prosecutes lawyer mis-
conduct for the Board of Bar Overseers. Ms. Cavell is a graduate of Boston Uni-
versity School of Law and Radcliffe College. She was an associate at Goodwin
Procter LLP and then served as Brookline’s associate town counsel and on the
board of editors at Massachusetts Lawyers Weekly. From 1999 to 2001, she was
a member of the Supreme Judicial Court’s advisory committee on ethics for
government lawyers. She has participated in legal training programs at govern-
ment agencies, MCLE, the Massachusetts Bar Association, the National Organi-
zation of Bar Counsel, and various law schools in Massachusetts and abroad.
From 2007 to 2014, she was a commissioner on Governor Deval Patrick’s Judicial
Nominating Commission.
JERRY COHEN is a partner of the Boston firm of Burns & Levinson LLP. He
has forty-five years of experience in dealing with patent, copyright, trademark,
unfair competition, licensing/franchising, visual arts, software, databases, and
publication law; formation and operation of business enterprises and not-for-
profit organizations; international trade; litigation/alternative dispute resolution;
and legal ethics. He handles acquisition, licensing, and litigation of intellectual
property rights and has served as an expert witness, arbitrator, and mediator in
intellectual property matters, currently with JAMS, and is a fellow of the Char-
tered Institute of Arbitrators. Mr. Cohen is a frequent author and presenter on
intellectual property topics and an adjunct professor at Roger Williams University
School of Law. He is a member of the American Bar Association, the American
Intellectual Property Law Association, the Copyright Society, the International
Trademark Association, and the boards of editors of the Massachusetts Law Re-
view and the Rhode Island Bar Journal. His books include Trade Secret Law,
Trademarks and Unfair Competition, Modern Patent Law Precedents, and Inter-
national Trade Practice. He is a past president of the Massachusetts Bar Founda-
tion and a 2015 recipient of the foundation’s Great Friend of Justice Award. Mr.
Cohen is a graduate of Rensselaer Polytechnic Institute and George Washington
University School of Law.
TIMOTHY J. DACEY III is of counsel with Goulston & Storrs, PC, in Boston.
His experience includes representing law firms in professional malpractice ac-
tions, owners and design professionals in construction disputes, and electrical
vi 4th Edition, Supplement 2018
generators and contractors in disputes in the electrical power industry, as well as
clients in antitrust and probate matters and a wide variety of commercial dis-
putes. He is a graduate of the College of the Holy Cross and Harvard Law
School and served as a law clerk for the Honorable Frank M. Coffin of the U.S.
Court of Appeals for the First Circuit. He has been a member of the Massachu-
setts Bar Association committee on professional ethics since 1984 and is vice chair
of the committee. Mr. Dacey is a frequent lecturer on issues of civil procedure,
legal malpractice, and professional responsibility.
BRUCE T. EISENHUT is an assistant bar counsel with the Massachusetts Board
of Bar Overseers Office of the Bar Counsel in Boston. Previously, he was in pri-
vate practice, an assistant attorney general to the Massachusetts Department of
Public Health and State Ethics Commission, counsel to the State Ethics Com-
mission, and counsel to the Cambridge Rent Control Board. He is a member of
the Real Estate Bar Association for Massachusetts.
ELAINE M. EPSTEIN is a partner at the Boston firm of Todd & Weld LLP,
where she has directed the firm’s domestic relations and probate litigation prac-
tices since 1994. She brings more than four decades of experience to these areas,
has tried dozens of cases, and has handled issues ranging from substantial asset
divisions to cutting-edge parental and property rights of nonmarried cohabitants,
the rights of nonbiological parents, and complex jurisdictional issues. Ms. Ep-
stein currently serves on the Judicial Nominating Commission by appointment
of the governor. She is a past president of the Massachusetts Bar Association and
was one of the founders and the first president of the Women’s Bar Association.
Ms. Epstein has served by appointment of the Supreme Judicial Court on the
Board of Bar Overseers, its advisory committee on the Massachusetts Rules of
Professional Conduct, and the Massachusetts IOLTA Committee. Repeatedly
named in The Best Lawyers in America and as a Massachusetts and New Eng-
land “Super Lawyer” in family law by Boston magazine, Ms. Epstein received
the Women’s Bar Association’s Lelia Robinson Award in 1999 in recognition of
outstanding accomplishments and contributions to women in the legal profession.
She received a Top Women of Law Award from Massachusetts Lawyers Weekly in
2013 and was inducted into its 2015 Circle of Excellence. In 2015 she received the
Massachusetts Bar Foundation’s President’s Award for her contributions to the
foundation over the years.
MICHAEL FRANCO is a partner in the Law Offices of Beauregard, Burke &
Franco in New Bedford. He has practiced law since 1994 and has been a partner
in Beauregard, Burke & Franco since 2001. In addition to trial work, he has
handled more than fifty appeals in the state and federal courts. Mr. Franco grad-
uated summa cum laude from Boston University. He received a J.D., cum laude,
from Boston University School of Law, where he was case and note editor for
the Probate Law Journal. Mr. Franco has handled complex cases of serious
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ETHICAL LAWYERING IN MASSACHUSETTS
bodily injury, wrongful death, and insurance coverage, including a bad-faith
settlement case that resulted in a judgment of more than $4 million.
DANIEL K. GELB is a partner at Gelb & Gelb LLP. He practices at the state
and federal levels in general and white-collar criminal defense, complex civil
litigation, arbitration, regulatory proceedings, and academic discipline and stu-
dent misconduct defense. Prior to joining the firm, Mr. Gelb was an assistant
district attorney with the Norfolk District Attorney’s Office. He is a member of
the Sedona Conference Working Group on Electronic Document Retention and
Production, the advisory board for the Bureau of National Affairs White Collar
Crime Report, and the National Association of Criminal Defense Lawyers Elec-
tronic Discovery Task Force. Mr. Gelb has been a volunteer faculty member for
Harvard Law School’s Trial Advocacy Workshop. He is a Louis D. Brandeis
Fellow of the Massachusetts Bar Foundation, and has been recognized by various
legal industry publications, including the Martindale-Hubbell Law Directory, New
England Super Lawyers, and Massachusetts Super Lawyers. Mr. Gelb received
his B.A. from Tufts University, his J.D. from Boston College Law School, and
his M.B.A. from Boston College Carroll Graduate School of Management.
GAIL KLEVEN GELB, cofounder and managing partner of Gelb & Gelb LLP,
concentrates her practice in probate litigation and family law as well as closely
held corporation, family business, and partnership disputes. She has served as a
hearing committee member of the Massachusetts Board of Bar Overseers and
has been a member of the Boston Inn of Court. She has been a member of the
board of editors of the Massachusetts Law Review since 1993. Ms. Gelb has
served as a member of the Massachusetts Bar Association Family Law Section
Council, the Massachusetts Bar Association Family Law Section committee to
improve the Probate and Family Court, and the Massachusetts Bar Association
Child Support Guidelines committee. She served as vice chair for the public
relations and speakers committee of the Family Law Section Council. She is
rated “AV” by the Martindale-Hubbell Law Directory, is a life member of the
Massachusetts Bar Foundation, and is a member of the Walnut Hill School
Board of Visitors. Ms. Gelb is a graduate of Brandeis University (B.A.), Boston
University (M.U.A.), and Suffolk University Law School (J.D.).
RICHARD M. GELB is a partner and cofounder of Gelb & Gelb LLP. He is
experienced in trying jury and nonjury business and securities cases in federal
and state courts, as well as in arbitration and regulatory proceedings, including
those before the Securities and Exchange Commission, the Financial Industry
Regulatory Authority (FINRA), the Massachusetts Division of Securities, and
the Massachusetts Division of Insurance. He represents clients before the Certi-
fied Financial Planner Board of Standards, Inc., and the Massachusetts Board of
Accountancy. Mr. Gelb is a member of the Leadership Council of the American
Inns of Court Foundation and its state liaison for Massachusetts, a founder and
viii 4th Edition, Supplement 2018
former copresident of the Suffolk University Law School Litigation American
Inn of Court, and a past president of the Boston Inn of Court. He received Bos-
ton College Law School’s Reverend James B. Malley, S.J. Award for service and
commitment to the school and was a recipient of the Boston College Law School
75th Anniversary Alumni Award. He is a life member of the Massachusetts Bar
Foundation, a fellow of the American Bar Foundation, and a fellow of the Litiga-
tion Counsel of America. He has been recognized by a number of legal publica-
tions, including the Martindale-Hubbell Law Directory and The Best Lawyers in
America. Mr. Gelb is a graduate of New York University and Boston College
Law School.
SARA N. HOLDEN is a partner of Brecher, Wyner, Simons, Fox & Bolan, PC,
in Newton, where she represents lawyers and law firms in Board of Bar Overse-
ers and malpractice matters, partnership breakups, departures, and law firm liti-
gation. She provides counsel to local, national, and transnational lawyers and
law firms on risk management, law firm audits, malpractice prevention, profes-
sional responsibility, practice, and ethics matters. Ms. Holden also represents
physicians and other professionals in disciplinary matters and professional and
nonprofessional clients in civil litigation matters. She is a graduate of Northeastern
University and Boston University School of Law.
W. TERENCE JONES is a cofounder of the Boston law firm of Maselan &
Jones, PC. He has more than thirty-five years of experience representing found-
ers and owners of closely held businesses and has served as advisor in more than
200 business startup and ownership succession transactions. He is a graduate of
Yale University and received a J.D. and an LL.M. in taxation from Boston Uni-
versity School of Law.
RONALD F. KEHOE, deceased, was an assistant attorney general in the Office
of the Attorney General in Boston, where he defended civil cases brought in
state and federal courts against the Commonwealth and its agencies. Previously,
he was a partner with or counsel to three major Boston law firms. He represented
lawyers in disciplinary proceedings for more than twenty years. Mr. Kehoe was
a member of the Committee for Public Counsel Services and a member of the
board of the Boston Bar Association. He was a graduate of Dartmouth College
and Harvard Law School.
PATRICK G. KIERNAN has focused on criminal defense litigation on both the
state and federal levels, including the drafting and arguing of complex suppres-
sion and other pretrial motions. He has also played a role in several civil litiga-
tion matters. Additionally, he has assisted a major political party in Massachusetts
with election law issues on a volunteer basis. He is a graduate of Union College
and Suffolk University Law School.
4th Edition, Supplement 2018 ix