Full Massachusetts Court Will Consider Confidentiality Defense

A single justice of the Massachusetts Supreme Judicial Court has referred a disciplinary matter to the full court for consideration.

Respondent was retained to appeal the client’s denial of Social Security benefits. The appeal was not perfected and dismissed.

Two years later, the referring attorney (the client’s sister) learned of the dismissal and filed a motion to vacate claiming a failure of zealous representation.

Respondent learned of the motion and filed a response.

That response disclosed two reported arrests of the client that had occurred after the representation had concluded.

Bar Counsel had charged the attorney with four counts of misconduct including a confidentiality breach in the response

With respect to the first count, a hearing committee of the board concluded that the information acquired after the representation had concluded — essentially that the client twice had been arrested — was “confidential information,” that it related to the representation, and that the disclosure violated Mass. R. Prof. C. 1.9 (c)(1) and 8.4 (h). Although the respondent suggested that he had read of the client’s arrests on the internet and that they were reported in a local newspaper, the hearing committee reasoned that whether the information was “generally known,” or otherwise came within an exception to what constitutes “confidential information,” was an affirmative defense, and that the respondent failed to carry his burden of proof. The hearing committee also found that bar counsel established the misconduct charged in in counts two, three and four, and weighed certain factors in aggravation. It recommended that the respondent be suspended from the practice of law for ninety days, and that he be required to take and pass the Multistate Professional Responsibility Examination prior to reinstatement. Neither party appealed to the board.

The Board of Bar Overseers nonetheless overturned the misconduct finding as to count one.

With respect to count one, however, the board concluded that it was bar counsel’s burden to show that the information disclosed was “confidential information” within the meaning of Mass. R. Prof. C. 1.6, including that it was not “generally known,” and that bar counsel failed to carry that burden. After considering multiple factors in aggravation, and finding no factors to weigh in mitigation, the board voted to impose a public reprimand.

Bar Counsel sought review.

Justice Lowy

After a hearing, and upon consideration of the written materials submitted, I am persuaded that this case raises significant unresolved questions, including what are or are not affirmative defenses for purposes of Mass. R. Prof. C. 1.6 and 1.9 (c), the proper allocation of the burden of proof or burden of persuasion under those rules, and the standard to be applied to the determination whether information is “confidential” or “generally known.” Because I conclude that this is a matter best decided by the full court, I exercise my discretion to reserve and report this matter. 

The Board Memorandum is attached to the order.

No doubt a case worth watching. (Mike Frisch)