Author Archive | Allison Martin Rhodes

Association of Professional Responsibility Lawyers Applauds ABA’s Changes to Lawyer Advertising Rules

Press Release

CHICAGO (August 8, 2018) The Association of Professional Responsibility Lawyers (APRL) is pleased to report that the American Bar Association (ABA) on Monday, August 6, 2018 adopted amendments to the lawyer advertising rules in the ABA’s Model Rules of Professional Conduct. The new rules arose from APRL’s efforts and its 2015 Report of the APRL Regulation of Lawyer Advertising Committee.   These newest changes will now be considered by many jurisdictions as replacements for their existing rules regulating lawyer advertising.


Advertising Rule Changes Go Before ABA House in Chicago in August

APRL began its efforts to change the ABA Model Rules on advertising over 4 years ago, issuing two detailed reports, and presetting APRL’s views in many arenas.  The ABA Standing Committee on Ethics and Professional Responsibility has now issued FINAL DAR Resolution and Report Advertising Report as Amended by Rules a…  proposing changes to the Model Rules on advertising.  That Report comes before the ABA House of Delegates for vote this August 5-6 in Chicago..

APRL asks that you urge adoption of the Report, contact delegates and ABA representatives that you know and help usher lawyer advertising into the 21st century.  For more information, please contact any member of the advertising subcommittee, chaired by Mark Tuft, and including Lynda Shely, Art Lachman, Peter Jarvis, Bruce Johnson, Jim McCauley, Jan Jacobowitz and George Clark.

Here’s a short summary of the changes: 2018 ABA Advertising Rule Summary

APRL Members James Bolan and Sara Holden Publish Legal Ethics Book

APRL members Jim Bolan and Sara Holden have published the Massachusetts Legal Ethics and Malpractice 2017.


Navigate Massachusetts’ system of attorney regulation with this newest practice deskbook from the publishers of Law Journal Press, the American Lawyer and the National Law Journal. The book contains practical advice from the authors regarding Massachusetts Bar Discipline and Legal Malpractice.

This book is comprised of two main parts: Massachusetts Bar Discipline and Legal Malpractice.

Part One, Bar Discipline, details the investigative process and the prosecutorial process. Topics addressed include: Board of Overseers, Response to the Complaint, Diversion Program, Formal Charges, Possible Dispositions, Formal Proceedings, Discovery, Prosecuting the Petition, Review and Appeal and Proceedings Before Court. Also addressed are issues involving temporary suspension, disability inactive status, disbarment by consent, convictions, commissioners, costs and restitution, reinstatement and clearance letters.

Part Two addresses legal malpractice topics, including: Attorney-Client Relationship, Standard of Care and Proximate Cause, Damages, Expert Testimony, Other Claims (e.g., breach of contract, breach of fiduciary duty, negligent misrepresentation, fraud, interference with contractual relations), Defenses, and the Intersection Between Bar Discipline and Legal Malpractice.

Keep current with the law and rules concerning lawyer liability and discipline in Massachusetts, as they continue to develop and change, and as ethics committees constantly issue new opinions and guidelines.* The book contains helpful appendix material: Massachusetts Rules of Professional Conduct; Restatement of the Law Governing Lawyers – Selected Citations; Ex Parte Communications – List of Selected Recent Cases, Rules, and Ethics Opinions in Massachusetts.

APRL Member Thomas P. Sullivan Publishes Law Review Regarding Disciplining Prosecutors for Misconduct

In the Journal Of Criminal Law and Criminology, APRL member Thomas Sullivan, together with Maurice Possley, published their article The Chronic Failure to Discipline Prosecutors for Misconduct: Proposals for Reform.


According to the abstract:

While most prosecutors adhere to the maxim that their primary task is to obtain just results, there are some who violate their ethical responsibilities in order to rack up convictions. This article describes the distressing, decades-long absence of discipline imposed on prosecutors whose knowing misconduct has resulted in terrible injustices being visited upon defendants throughout the country. Many honorable lawyers have failed to speak out about errant prosecutors, thus enabling their ethical breaches. The silent accessories include practicing lawyers and judges of trial and reviewing courts who, having observed prosecutorial misconduct, failed to take corrective action. Fault also lies with members of attorney disciplinary bodies who have not investigated widely publicized prosecutorial misconduct. This article summarizes the rules requiring all members of the bar to report unethical conduct. We focus particularly on lawyers who serve in prosecutors’ offices, defense lawyers, and trial and reviewing court judges and their lawyer clerks, each of whom has a personal, non-delegable responsibility to report their knowledge of ethical breaches to disciplinary authorities.

In addition, the article identifies reforms to the justice system designed to reduce prosecutorial abuses: (1) substituting for the Brady rule a verifiable open-file pretrial discovery requirement on prosecutors; (2) instead of invoking harmless error, requiring reversal of convictions if serious prosecutorial misconduct is proven; (3) identifying errant prosecutors by name in trial and appellate opinions; (4) providing prosecutors with qualified instead of complete immunity from civil damages for misconduct; and (5) authorizing the Department of Justice’s Office of Inspector General to handle investigations of alleged misconduct by federal prosecutors. The article also proposes that attorney disciplinary bodies adopt changes designed to more effectively discover and sanction misbehaving prosecutors. Lawyer organizations and bar associations are urged to speak out when prosecutors deviate from appropriate conduct, and law schools are encouraged to include instruction on ethical rules peculiar to the criminal practice.

Thomas P. Sullivan and Maurice Possley, The Chronic Failure to Discipline Prosecutors for Misconduct: Proposals for Reform, 105 J. Crim. L. & Criminology (2015).


APRL Files Amicus in SCOTUS

APRL filed an amicus in support of a petition for certiorari challenging New York Judiciary Law §470. The law prevents non-resident lawyers from practicing in New York if they do not maintain a physical office for the transaction of law business within the state. Currently, there are more than 134,000 non-resident New York lawyers.

Attorney Ekaterina Schoenefeld, who practices in New Jersey and is a member of the New York bar, challenged §470 as a violation of the Privileges and Immunities Clause under the U.S. Constitution. A judge of the United States District Court for the Northern District of New York found the law to be unconstitutional in a 2008 decision but a divided U.S. Court of Appeals for the Second Circuit subsequently overturned this decision in 2016, ruling that Schoenefeld had not proved that §470 was “enacted for a protectionist purpose.” Schoenefeld then petitioned the U.S. Supreme Court for review.

At stake in the Schoenefeld case is the ever-expanding population of lawyers who live and practice outside their states of admission, and whether States can burden these lawyers by requiring them to maintain a costly physical office that does not contribute to their practice or clients. Under the law as it now stands, New York admitted lawyers who reside within the state, and lawyers in many states who maintain multijurisdictional practices, are ethically permitted to operate “virtual law offices,” often from their homes, and can take advantage of modern advances in telecommunications and information sharing in order to efficiently and effectively serve their clients. But §470 creates the anomaly for New York admitted lawyers who are not resident in New York that they must maintain a physical office within the state.

APRL’s brief was drafted and filed by the law firm of Hinshaw & Culbertson attorneys Joel Bertocchi and Anthony Davis, together with Ron Minkoff and Tyler Maulsby of Frankfurt Kurnit Klein & Selz, P.C.,  Mr. Davis , Mr. Minkoff are both long time APRL members and past Presidents.  The organization thanks them and their firms for the excellent work.  The brief is available here: SCHOENEFELD APRL amicus FINAL