Atty. Daniel C. Crane
Bar Counsel
Board of Bar Overseers
75 Federal St.
Boston, Ma. 02110

Re: Request for Advisory Opinion: Lavallee vs. Justices of the Hampden Superior Court

Dear Atty. Crane,

As you are aware the recent decision of the Supreme Judicial Court in Lavallee vs. Justices of the Hampden Superior Court has created unprecedented remedies for indigent criminal defendants. In turn it has raised unique ethical issues for which we seek advice.

Assuming that the Lavallee remedies have equal application to similarly situated defendants in areas additional to Hampden County, we have the following questions.

Because a defendant shall be released, if held, after seven days if no counsel can be found; have his complaint dismissed without prejudice after 45 days; and not be reprosecuted unless counsel is available, is an attorney precluded by Rule 6.2 or other, from accepting such assignments while the Lavallee remedies exist?

a. Is an attorney's representation in this unique context in the client's best interests since he would be released, but for the assistance of counsel after seven days?

b. Is an attorney's representation in this unique context in the client's best interests since his complaint would be dismissed after forty five days, but for the assistance of counsel?

c. Is an attorney's representation in this unique context in the client's best interests since his complaint could not be brought back, but for the assistance of counsel? At what point, if ever, can counsel feel comfortable in accepting such assignments?

While we recognize that successful malpractice claims against counsel for criminal defendants are rare, for the practitioner the mere filing of such a complaint has serious adverse consequences. We are also aware that, as this remedy has just been created, there are no precedents upon which counsel can rely in determining the level of risk of such claims. Whether successful or not, such claims require the attorney to notify his carrier, report such filings with various agencies including his local Bar Advocate office and the Committee for Public Counsel Services, pay the deductible amount and expend considerable time in formulating a response.

a. In this unique context does the specter of a malpractice claim create an inherent conflict of interest?

b. If counsel's representation results in proof of the client's innocence, thereby establishing for the client an element of the malpractice claim, in this case being held when he otherwise would not be, is an attorney conflicted in that doing his job well might result in adverse financial consequences to himself?

Given that the mere filing of a complaint to the Board of Bar Overseers inherently creates an adverse impact on counsel, how will the office of Bar Counsel treat complaints of this nature.

a. Will attorneys be granted immunity for such claims or will they be required to follow standard response procedures, written responses, copies of files and potential meetings at office of the Bar Counsel?

b. If a defendant makes a claim to Bar Counsel that he would have been released but for the appearance of counsel, what is the Bar Counsel's response?

c. If a defendant makes a claim to Bar Counsel that his complaint would have been dismissed but for the appearance of counsel, what is the Bar Counsel's response?

d. If a defendant makes a claim to Bar Counsel that a new complaint would never have been brought but for the availability of counsel, what is the Bar Counsel's response?

e. If the office of Bar Counsel will not be providing universal immunity to such claims, then how does the adverse impact of responding to such claims, not create a conflict of interest?

On behalf of the Bristol County Bar Advocates I appreciate your guidance in this unique and unprecedented situation. I am sure that there are many other ethical issues that have not been foreseen here and look forward to your guidance.

Sincerely,

Paul J. Machado