Use of Disciplinary Warning Blackmail

Equal Marriage Opponents Improperly Threaten Disciplinary Action

January 2, 2007

To The General Court:

We write to you as former Bar Counsel and Assistant Bar Counsel at the Board of Bar Overseers ("BBO"), responsible for enforcing the Massachusetts Rules of Professional Conduct Collectively, we have over 35 years of experience assessing, investigating and prosecuting complaints brought to the BBO.

We understand that some legislators who are members of the Massachusetts bar have been threatened with the initiation of bar discipline should they vote to recess on January 2, 2007, without taking an up or down vote on the proposed citizens' ballot initiative to amend the Constitution to redefine marriage and overrule the Supreme Judicial Court's ruling in Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003). Those making this threat appear to rely on Doyle et al. v. Secretary of the Commonwealth et al., 448 Mass. 114 (2006) (decided

December 27, 2006) as the basis for their action.

Nothing in Doyle provides a legitimate basis for a complaint to the Board of Bar Overseers. The BBO is charged, as an arm of the Supreme Judicial Court, with acting "with respect to the conduct and discipline of lawyers" (SJC Rule 4:01). It is neither the purview of the BBO nor the practice of Bar Counsel to investigate, let alone prosecute, matters in which legislators act in a legislative capacity. Moreover, it would be inconsistent with the BBO's charge to involve itself in matters where there is no ethical violation but a legal and political dispute between the SJC and the Legislature as to the proper scope of legislative duty.

The SJC has long recognized that the Constitution, through Article 30, prohibits the court from interfering with the legislative branch. It reiterated this principle in Doyle. The BBO, as an arm of the SJC, is likewise prohibited from taking action against legislators for votes taken or not taken. Moreover, in our opinion, a legislator's vote to recess or adjourn under the procedural rules of the General Court does not violate any of the Massachusetts Rules of Professional Conduct.

Based on our expertise and experience, the threatened complaint would be summarily dismissed as without merit. Finally, while anyone may file a complaint with the BBO, it is inappropriate for the bar disciplinary process to be invoked in this context.

Daniel Klubock

Cathleen Cavell

Alice Hageman