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professional responsibility & Ch. 93A Consumer Protection Act

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Ch. 93A: MA Consumer Protection Act
provides public and private remedies to people injured as a result of unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce

(within torts, contracts, property questions)

relief: though tort or contract action

requirement: transaction must occur primarily and subs. in MA

does NOT cover: completely private transactions not undertaken in normal course of trade or business

business sues business: Section 11 (must prove damages)

statute of limitations: 4 yrs EXCEPT landlord-tenant: 3 yrs
individual sues business: Section 9 (requires 30-day demand letter before filing suit)
IOLTA
interest on lawyer trust account:
paid to MA legal assistance corp. and other charities designated by MA SJC
Special rules of trust accounts
- must be in MA or elsewhere with client's permission
- promptly notify clients when $ comes in
- keep records for 6 yrs after

EXCEPTIONS to req. to keep trust account:
- retired lawyers
- dead lawyers
- professors
- judges
- inactive lawyers (formal status with bar)
Retainer
- client account (advanced fees deducted)
- availability (earned instantly, whether worked or not)
Fee-splitting
NO splitting legal fees with non-lawyer

ok to split non-legal fees with non-lawyer

EXCEPT:
- salaries, retirement plans, bonuses, profit sharing
- spouses of deceased partners to pay fees earned by deceased partner
Contingency fee
NOT in criminal cases or domestic relations cases (EXCEPT: past due child support and alimony = violation of duty, breach of contract)
Firm conflicts
screen lawyers:
- notify other side
- lawyer prohibited from file access
- lawyer gets no fees

on BAR EXAM:
- MAY conflict out the whole firm
Client representation
ALWAYS a conflict to simultaneously represent clients

past/current clients: ok if past client consents but NOT in same matters or if relevant confidential info obtained
Conflicts of interest
client must give informed consent after lawyer explains material risks and reasonable alternatives and client agrees in writing

wills: cannot receive interest EXCEPT
- family members
- de minimis or nominal gifts (objective test)

lending $ to clients:
- may advance costs of litigation w/ repayment contingent
Exceptions to confidentiality
- required by court, law
- with client consent after consultation
- to prevent death or subs. bodily harm/injury to financial or property interests of another or wrongful incarceration
- to rectify fraud
- to collect fee, protect reputation
Sale & purchase of law practice (incl. good will)
OK if:
- written notice given to clients
- fee arrangements not changed
- clients told about rights to get new lawyer
(consent presumed if client does not act for 90 days)
- whole practice must be sold
Targeted mail
- ok to send direct mail to person/group known to face a specific legal problem
- must include disclaimer that person may report anything inappropriate, confusing
- must NOT be sent by certified mail (misleading)
- must read: "this is an ad"
- client names in ad require consent
- name of at least 1 responsible atty must be in ad
- ad must be kept for 2 yrs after dissemination with a record of where/when used

* avoid SOLICITING clients for fee-paying work by means of direct personal contact
- 45-day prohibition on contacting victims of national disasters

* if you give unsolicited advice, do NOT accept related employment (but ok if they contact you)
Specialization
"certification" requires:
- by private organization which is named
- that its standards are not regulated by the Commonwealth OR by a governing body which is named
Firm names
- cannot be misleading
- can keep names of people temporarily away but not if disbarred
- names must be real
Non-compete agreements
NOT allowed EXCEPT:
- retirement
- departure from firm
if reasonably limited
Do not help non-lawyers engage in the unauthorized practice of law
except: advice on self-representation
NOTE: but not helping perform legal activities
Client loses ability to make decisions, diminished capacity, etc. (incl. minority)
- maintain relationship as much as possible
if physical, financial, other risk:
- consult family members or adult protective agencies
- may seek appt. of guardian/conservator
* limit confidential info to extent necessary
Competence to take cases
- physically and mentally able
- legal expertise
- time
Decisions
client: settle, appeal, testify, costs

attorney: procedural, tactics, strategy
Activities that do NOT require a license
- interview
- filling in forms
- writing legal memos
Activities requiring license
- appearances in judicial proceedings, depositions
- drafting docs that affect substantial client rights (wills, contracts)
- negotiating settlements
Permissible temporary multi-jurisdictional practice
- associate with active local lawyer
- special permission (pro hac vice--for that matter only)
- mediation/arbitration out of home state
- anything reasonably related to lawyer's home state practice
Regulation after admission
SELF-regulating:
- inform Bar Counsel's office (judge: report to Commission on Judicial Conduct)
- be available to testify (cannot report anonymously)
* except in representing a lawyer
Bar admission
MA: voluntary

US Sup Ct.: state reqs for bar admission must be rationally related to the practice of law:
- graduation from ABA school
- take oath

NOT rational:
- US citizenship
- state residency

moral character:
- truth, full disclosure
- no knowingly make false statement of material fact
- not fail to disclose facts necessary to correct a misapprehension
- duty to cooperate
Discipline
- admonishment
- public reprimand
- suspension
- disbarment
Bar Counsel recommendations
- dismissal
- admonishment
- formal proceeding
- formal discipline by agreement
Complaints
investigated by a Board of Overseers appointed by SJC, which appoints a Chief Bar Counsel to conduct a preliminary investigation
Source
MA Rules of Professional Conduct
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