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Articles Posted in Lawyer Professional Conduct

A defense attorney has a duty to represent their client “zealously within the bounds of the law.” An attorney also must share evidence through discovery with opposing counsel. A defendant, as per the Fifth Amendment, has the right not to incriminate themselves. This right spans from a defendant not incriminating themselves during police interrogation, all the way to the courtroom and not requiring a defendant to testify against themselves. These basic principles of criminal law work in tandem to protect the accused and make sure they are “innocent until proven guilty.” The work of these two principles is essential in protecting the rights of the accused.

In a case of first impression for the Massachusetts, Commonwealth v. Tate, the SJC is to decide whether defense counsel disclosing the location of a jacket and gun used in the commission of an alleged crime to the prosecution was a violation of the duty to the defendant.

How did the defense attorney find out about the evidence?

The character and fitness portion of the bar exam serves the purpose of ensuring that barred attorneys are morally fit for the practice of law and deserving of the trust of the people. The character and fitness questionnaire usually asks about past criminal conduct or civil violations, academic or employment misconduct, mental health or substance abuse issues, and financial history. If an applicant does not pass the character and fitness portion of the bar, they cannot sit for the test portion.

If an applicant has prior transgressions, it does not mean they are automatically disqualified from the bar. An applicant must show they appreciate the wrongfulness of their past misconduct and they understand professional conduct for Massachusetts lawyers. The applications are reviewed on a case-by-case basis. This was the question in Lionel Porter v. Board of Bar Examiners decided by the Supreme Judicial Court.

What prior transgressions did Lionel Porter have?

Can an Attorney Represent Co-defendants? United States Supreme Court May Decide.

In many states, it is legal for two co-defendants in a crime to retain the same attorney. However, this is not the ideal situation because it is ripe for conflicts of interest. Co-defendants in a criminal case likely have information about the other defendant that can be detrimental to their case and will oftentimes “flip” on their codefendant. It can be difficult for an attorney to represent both codefendants competently and diligently as required. The American Bar Association advises against representing co-defendants, but there is no general law forbidding it. The Supreme Court could change this. The case of Holcombe v. Florida is pending before the Supreme Court and asks the Court whether an “actual” conflict of interest that adversely affects counsel’s representation when the attorney engages in “joint and dual” representation – i.e., simultaneously representing both the defendant and a key prosecution witness during a trial. 

What happened in Holcombe v. Florida?

A Massachusetts Attorney was reprimanded for a facebook post about his status.  Being friends with many lawyers in Massachusetts and all over the country, the attorney’s facebook post was typical of many attorney posts that I have seen on my newsfeed.  The Massachusetts Board of Bar Overseers found that this case violated the rules of professional conduct.

It seems so innocuous.  An attorney updates his public Facebook page stating: “Back in Boston after appearing in Berkshire Juvenile Court in Pittsfield on behalf of grandmother who was seeking guardianship of six-year-old grandson and was opposed by DCYF yesterday.  Next date – 10/23.” But is it so innocuous?  Is the Facebook post simply an update of the day in the life of an attorney? Or is it enough information to run afoul of the Rules of Professional Conduct. On November 6, 2019, the Massachusetts Board of Bar Overseers (BBO) publicly reprimanded the attorney who wrote this post.

This is the type of situation every attorney must navigate daily. Social media forums allow attorneys to connect with potential clients, advertise the types of law practiced, comment on new case law, etc. Regardless of an attorney’s age, experience, or length of practice, an attorney is required to stay up to date on new technology (Rule 1.1).  In today’s world, it could be argued that Facebook, established in 2006, is not a new technology, and all attorneys should be aware of the pitfalls of any client-related posting on Facebook.

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