August 15, 2007
Ignorance Is Bliss Or At Least Not Unethical
A recently filed Hearing Report in Massachusetts recommends that disciplinary charges be dismissed where the attorney had advised his client to tape record conversations with her abusive spouse without his knowledge or consent. The panel found that the accused attorney was unaware that taping without consent violates Massachusetts law and had failed to research the point. As a result, the client was charged with the crime and filed the bar complaint. The panel made every favorable finding that it possibly could to avoid a finding of misconduct, for example: "Wife did not appear overly concerned when the criminal proceeding was brought against her...[she] was desperate enough to tape record her husband's abusive behavior even if...properly advised..." The panel found the wife "completely unbelievable" and acknowledged that the lawyer "technically violated" two ethics rules.
It is worth noting that the most publicized case in Massachusetts bar history involved attorneys who lured a former law clerk to jurisdictions that permit one-party taping because of the Massachusetts law at issue here. I find it rather hard to believe that any Massachusetts lawyer would be ignorant of that case. The hearing panel wants to absolve a lawyer, so it simply accepts the lawyer's claim of ignorance and attacks the complainant. Even the grudging acknowledgment that the conduct violated ethics rules is no impediment to dismissal. (Mike Frisch)
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