382 Mass. 698 (Mass. 1981)

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Rules of the Supreme Judicial Court

Supreme Judicial Court of Massachusetts

Jan 1, 1981

382 Mass. 698 (Mass. 1981)

Opinion

January 1, 1981.

On June 26, 1980, it was ordered by the Justices that the Rules of the Supreme Judicial Court be reorganized and amended as follows:

(a) Chapters One, Two and Three of the Rules of the Supreme Judicial Court are amended as follows:

By striking out Chapters One, Two and Three, and inserting in lieu thereof the new Chapters One, One A, Two and Three set out below.

(b) Chapter Four of the Rules of the Supreme Judicial Court is amended as follows:

Rule 4:01 By striking out the first sentence of Section 3, and inserting in lieu thereof the new first sentence set out below.

It was further ordered that the amendments accomplished by this order shall take effect on January 1, 1981.

On December 16, 1980, it was ordered by the Justices that rule 1:11 be struck in its entirety, and a new rule 1:11 inserted in lieu thereof. It was further ordered that the amendment accomplished by this order shall take effect on January 1, 1981. The rules set out below include the new rule 1:11.

CHAPTER ONE. GENERAL RULES. 1:01. DEFINITIONS; CONFLICT WITH OTHER RULES.

These rules shall be construed to secure the just, speedy and inexpensive determination of every case. As used in these rules the following terms shall be deemed to have the following meanings:

"Superior Court" shall mean the Superior Court Department of the Trial Court, or a session thereof for holding court.

"Housing Court" shall mean the City of Boston Division and the County of Hampden Division of the Housing Court Department of the Trial Court, or a session thereof for holding court.

"Probate Court" shall mean a division of the Probate and Family Court Department of the Trial Court, or a session thereof for holding court.

"Land Court" shall mean the Land Court Department of the Trial Court, or a session thereof for holding court.

"District Court" or "Municipal Court" shall mean a division of the District Court Department of the Trial Court, or a session thereof for holding court. Except when the context means something to the contrary, said words shall include the Boston Municipal Court Department.

"Municipal Court of the City of Boston" shall mean the Boston Municipal Court Department of the Trial Court, or a session thereof for holding court.

"Juvenile Court" shall mean the Boston Division, the Worcester Division, the Springfield Division, and the County of Bristol Division of the Juvenile Court Department of the Trial Court, or a session thereof for holding court.

"Chief Justice" of a Trial Court Department shall mean the "Administrative Justice" of that Department.

To the extent of any conflict between the Massachusetts Rules of Civil Procedure, the Massachusetts Rules of Criminal Procedure, the Massachusetts Rules of Appellate Procedure and the rules of the Supreme Judicial Court, the Appeals Court, and the various Departments of the Trial Court, the Massachusetts Rules of Civil, Criminal and Appellate Procedure shall control.

1:02. SITTINGS OF THE SUPREME JUDICIAL COURT.

Sittings of the full court for hearing questions of law pursuant to G. L. c. 211, § 12, as amended, shall be held at Boston on the first Monday of October, November, December, January, February, March, April and May, and at such other places or times as the court from time to time may order.

1:03. UNIFORM CERTIFICATION OF QUESTIONS OF LAW.

Section 1. Authority to Answer Certain Questions of Law.

This court may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, or of the District of Columbia, or a United States District Court, or the highest appellate court of any other State when requested by the certifying court if there are involved in any proceeding before it questions of law of this State which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of this court.

Section 2. Method of Invoking.

This rule may be invoked by an order of any of the courts referred to in Section 1 upon that court's own motion or upon the motion of any party to the cause.

Section 3. Contents of Certification Order. A certification order shall set forth

(1) the question of law to be answered; and

(2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.

Section 4. Preparation of Certification Order.

The certification order shall be prepared by the certifying court, signed by the judge presiding at the hearing, and forwarded to this court by the clerk of the certifying court under its official seal. This court may require the original or copies of all or of any portion of the record before the certifying court to be filed with the certification order, if, in the opinion of this court, the record or portion thereof may be necessary in answering the questions.

Section 5. Costs of Certification.

Fees and costs shall be the same as in civil appeals docketed before this court and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification.

Section 6. Briefs and Arguments.

Proceedings in this court shall be those provided in these rules, the Massachusetts Rules of Appellate Procedure or statutes governing briefs and arguments, so far as reasonably applicable.

Section 7. Opinion.

The written opinion of this court stating the law governing the questions certified shall be sent by the clerk under the seal of this court to the certifying court and to the parties.

Section 8. Power to Certify.

This court on its own motion or the motion of any party may order certification of questions of law to the highest court of any State when it appears to the certifying court that there are involved in any proceeding before the court questions of law of the receiving State which may be determinative of the cause then pending in the certifying court and it appears to the certifying court that there are no controlling precedents in the decisions of the highest court or intermediate appellate courts of the receiving State.

Section 9. Procedure on Certifying.

The procedures for certification from this State to the receiving State shall be those provided in the laws of the receiving State.

Section 10. Uniformity of Interpretation.

This rule shall be so construed as to effectuate its general purpose to make uniform the law of those States which adopt it; or enact a uniform certification statute.

Section 11. Short Title.

This rule may be cited as the Uniform Certification of Questions of Law Rule.

1:04. JUDICIAL CONFERENCE. G. L. c. 211, § 3B, as amended.

(1) The Massachusetts Judicial Conference is hereby constituted to consist of the following: (a) the Chief Justice (who shall serve as chairman of the Conference) and the Associate Justices of this court; (b) the Chief Justice of the Appeals Court; (c) the Chief Administrative Justice of the Trial Court; (d) the Administrative Justice of the Superior Court Department; (e) the Administrative Justice of the Probate and Family Court Department; (f) the Administrative Justice of the Land Court Department; (g) the Administrative Justice of the Housing Court Department; (h) the Administrative Justice of the District Court Department; (i) the Administrative Justice of the Boston Municipal Court Department; (j) the Administrative Justice of the Juvenile Court Department; (k) the Chairman of the Judicial Council; (l) the Trial Court Administrator; and (m) the Administrative Assistant to the Supreme Judicial Court (G. L. c. 211, § 3A), who shall act as secretary and as the principal administrative officer of the Conference.

(2) The judges and officers mentioned in paragraph (1) shall serve as the members of the Conference until further order of this court. Any member may designate another member of the court or body which he represents to act for him at any meeting.

(3) The Conference may invite other judges and members of the bar (a) to participate in any one or more projects, studies, meetings, or other activities, or (b) to prepare and present studies, recommendations, and comments upon matters concerning which the Conference desires information.

(4) The Conference (a) may consider and make recommendations on matters relating to the conduct of judicial business, the improvement of the judicial system, and the administration of justice in such manner as the Conference from time to time may deem appropriate; (b) may initiate and conduct legal research; (c) shall assist this court in coordinating the activities of the several courts; (d) may conduct general conferences and educational meetings; (e) may appoint reporters, advisers, research assistants, and other employees, either for the general work of the Conference or for designated projects and, subject to the availability of necessary funds, may make expenditures, including the payment of the foregoing persons; (f) may employ such facilities of universities, law schools, colleges, bar associations, foundations, and other institutions, as may be made available to it; and (g) may appoint standing or special committees. The Chief Justice of this court may appoint a vice-chairman of the Conference and may delegate to him duties with respect to the Conference.

(5) The Conference shall meet at such times as may be designated by the Chief Justice or a majority of the Justices of this court.

1:05. CERTAIN CONTRACTS BY JUDICIAL OFFICERS.

(1) Except as provided by paragraph (4), by statute, or by other rule or order of this court, no judge of a court shall enter into, order, or approve a contract on behalf of the Commonwealth or any of its political subdivisions requiring the expenditure of funds or the incurring of a liability in excess of any appropriation therefor, or for which no appropriation has been made, without the written approval of the appropriate judicial officer designated by this court. The following officers are so designated: for the Appeals Court, its Chief Justice; for each department of the Trial Court, its Administrative Justice. Every judge seeking such approval shall file a written request for approval with the appropriate judicial officer and a copy with the Chief Administrative Justice of the Trial Court. Every request shall be in the form of a memorandum and shall set forth the following: (a) the nature and cost of the facilities, goods or services sought; (b) an explanation of the circumstances causing the judge to consider it reasonably necessary to the proper execution of the court's responsibilities; (c) a chronological account of administrative action previously taken to secure it; and (d) a statement of the action contemplated by the judge.

(2) The appropriate judicial officer may approve in writing a request made under paragraph (1) only upon a finding that the facilities, goods or services sought are reasonably necessary to the proper execution of the court's responsibilities, and subject to such instructions as he deems appropriate. If such request is approved by the judicial officer, he shall forthwith submit a copy of his approval to the Chief Administrative Justice.

(3) Any judge whose request under paragraph (1) is denied may appeal in writing to the Chief Administrative Justice, who shall make a final determination thereon.

(4) The only exception to paragraph (1) shall be in instances where failure to obtain the required facilities, goods or services expeditiously and without delay will frustrate the execution of the court's responsibilities. In every such instance, the judge entering into, ordering or approving a contract on behalf of the Commonwealth or any of its political subdivisions shall forthwith submit a memorandum of the type required by paragraph (1) to the appropriate judicial officer, with a copy to the Chief Administrative Justice.

(5) Upon receipt of a copy of a memorandum filed under paragraph (1) or (4) the Chief Administrative Justice shall forthwith notify the Chief Justice of this court.

1:06. RECORDS OF THE SUPREME JUDICIAL COURT, OF THE APPEALS COURT, AND OF THE SUPERIOR COURT DEPARTMENT. FORM, STYLE, AND SIZE OF PAPERS. G. L. c. 221, § 27, as amended.

(1) The records of the Supreme Judicial Court, of the Appeals Court, and of the Superior Court Department in the several counties shall consist of the docket, the files, any extended record, which shall have been made at the promulgation of these rules, and whatever other specific records may be required by special statutes, and no others.

(2) There shall be two dockets in the Supreme Judicial Court: a full court docket and a single justice docket. The single justice docket shall be kept by the clerk in each county.

(3) There shall be four dockets in the Superior Court Department: a civil action docket, a divorce docket, a criminal docket, and a juvenile docket.

(4) The dockets are records wherein the clerk shall register, by its title, every action, suit or proceeding, civil and criminal, commenced in, or transferred or appealed to, the court whereof he is clerk, according to the date of its actual entry. He shall note therein, according to the date thereof, the filing or return of any paper or process, the making of any order, rule, or other direction in or concerning such action, suit, or proceeding, civil and criminal, the verdict or finding, the allowance of exceptions, and the entry of final judgment, final decree or order.

(5) The divorce docket shall contain the full names and the city or town of residence of the parties and, all in a brief and summary way, shall state in substance the cause or causes alleged for divorce, the date and place of their occurrence, the fact of attachment of property, if any, the kind of service of the complaint, the name and ages of any child or children set forth in the complaint, and the interlocutory and final orders and decrees.

(6) The criminal docket shall be kept in the form heretofore in common usage, being substantially as provided in paragraph (4) hereof.

(7) The files are all papers and processes filed with or by the clerk of the court in any action, suit or proceeding therein, or before the justice thereof, including executions, with their returns. So far as reasonably practicable, they shall comply with S.J.C. Rule 1:08 in size and in other respects therein stated. All such papers and processes shall be numbered consecutively in each case as entered.

(8) Resort may be had to the docket, files, and any extended record, or full extended record, which has been made at the time of the promulgation of these rules, but the full extended record, where one has been made, shall control.

(9) The docket shall be kept by the loose-leaf system, and the record shall be kept in typewriting, or partly in typewriting and partly in print, except as otherwise ordered by the court. Typewriter ribbons of permanent character shall be used. Those authorized for use on public records shall be regarded as sufficient under this rule, unless otherwise ordered by the court. The leaves of both docket and record when completed shall be strongly bound in volumes of appropriate size.

(10) Immediately after the final disposition of each action, suit or proceeding, complaint or indictment, papers constituting the files shall be assembled, collated, and arranged in order as theretofore numbered, and thereafter shall be kept in such order, except that executions may for greater safety be kept in a more secure place.

(11) The docket, files, and such extended and full extended records which shall have been made at the time of the promulgation of these rules, are to be kept in the clerk's office or in the custody of the clerk, and he is to be strictly responsible for them. They shall not be taken from his custody except in cases authorized by statute, by rule of court, for the preparation of the record for the full court, or for use by a justice of the court; but the parties may at all times have copies.

1:07. MAINTENANCE OF APPOINTMENT DOCKET.

(1) The clerk of the courts and the register of probate in each county and, in Suffolk County, the clerk of the Supreme Judicial Court, the clerk of the Appeals Court and the clerk of the Superior Court Department for civil business shall severally establish and maintain, currently indexed, as a part of the public records of the court open during regular business hours to public inspection, an appointment docket with respect to each appointment (in the court for which he acts) by a judge, or register of probate, of (a) a guardian ad litem; (b) an investigator appointed pursuant to G. L. c. 208, § 16; (c) an appraiser in any estate estimated to have gross assets in excess of $100,000; and (d) any administrator, trustee, guardian, conservator, or receiver, who is a person other than the person whose appointment was prayed for in a petition, pleading, or written motion, or in cases in which such petition, pleading or motion does not pray for the appointment of any specific person.

(2) Such docket shall contain the following:

(a) the docket number and name of the case,

(b) the date of the appointment,

(d) by whom the appointment was made, and

(e) any payment received.

(3) A person appointed to a position required to be recorded in the appointment docket within thirty (30) days of receiving payment for his services and expenses shall file with the clerk or register a statement, under the penalties of perjury, to be placed with the papers in the case, certifying the amount of such payment and itemizing any expenses.

1:08. FORM, STYLE, AND SIZE OF PAPERS FILED IN ALL COURTS. ( Applicable to all cases and to all courts. See S.J.C. Rules 1:06 [7], 2:02, Rule 5 [g] of Mass. R. Civ. P., and Rule 20 of Mass. R. A. P., each as amended.)

(1) Except as provided in this rule, papers (except exhibits) and processes filed with or by the clerk of the court in any court in the Commonwealth, or before a justice thereof, in any action, suit, or proceeding therein, including executions, with their returns, shall be, so far as reasonably practicable, approximately (but not larger than) eight and one-half inches by eleven in size, of standard quality of paper with adequate margins, and, except writs and other processes, approved Probate and Family Court Department printed forms, and printed briefs, shall be printed or typewritten upon one side only. It is desirable that blanks be filled in in typewriting. All papers filed in appeals (civil or criminal) to the full Supreme Judicial Court, the full Appeals Court, or a statutory quorum of either shall comply with the informational requirements of Rule 20 (b) of the Massachusetts Rules of Appellate Procedure. All papers filed in all other proceedings shall bear the name of the court and the county, the title of the action, the designation of the nature of the pleading or paper, and the name (written in capital letters or typed legibly, in addition to any signature required), address, and telephone number of the person or attorney filing the same. The court number of the case shall appear on each paper filed after the assignment of such a number.

(1A) With the exceptions appearing in paragraphs (1) and (2) of this rule and, with the exception of the Probate and Family Court Department, and applications for admission to the bar filed in the county court, all papers and processes in cases commenced after January 1, 1975, filed with or by the clerk of the court in any court in the Common-

"Hereof fail not, and make return of this writ with your doings thereon into the clerk's office of our said Court, at within our county , of within twenty years after the date of the said judgment, or within ten days after this writ has been satisfied or discharged."

No. execution shall be invalid which conforms in substance to the provisions of this rule.

1:10. FORM OF ALIAS EXECUTIONS FOR ALL COURTS OF THE COMMONWEALTH. G. L. c. 235, § 22.

Alias and successive executions to be used in all courts of the Commonwealth shall contain the following: Immediately after the words, "We command you, therefore," there shall be inserted "as we have commanded you." The last sentence shall be:

"Hereof fail not, and make return of this writ with your doings thereon into the clerk's office of our said Court at within our county of within five years from the date hereof, or within ten days after this writ is satisfied in whole or discharged by law."

No execution shall be invalid which conforms in substance to the provisions of this rule.

1:11. RULE RELATIVE TO THE DISPOSAL OF OLD COURT PAPERS AND RECORDS. G. L. c. 221, § 27A, as amended.

A. Superior Court Department.

Case papers or records of the Superior Court Department under the custody of clerks of the Superior Court Department may be selectively retained pursuant to the following requirements:

(1) In Berkshire, Franklin and Hampshire counties, a systematic sample of case papers consisting of 10% (docket numbers ending in "0") shall be retained. Except as provided in paragraphs (4) and (5) of Section A of this rule, all other papers and records may be destroyed pursuant to the procedures established in Section A.

(2) In Hampden, Norfolk, Plymouth, and Worcester counties, a systematic sample of case papers consisting of 20% (docket numbers ending in "0" and "5") for the period from 1860 to 1889, of 10% (docket numbers ending in "0") from 1890 to 1919, and of 5% (docket numbers ending in "00," "20," "40," "60," and "80") after 1919 shall be retained. Except as provided in paragraphs (4) and (5) of Section A of this rule, all other papers and records may be destroyed pursuant to the procedures established in Section A.

(3) In Bristol, Middlesex and Suffolk counties, a systematic sample of case papers consisting of 20% (docket numbers ending "0" or "5") for the period from 1860 to 1889, of 10% (docket numbers ending in "0") from 1890 to 1919, and of 5% (docket numbers ending in "00," "20," "40," "60," and "80") after 1919 shall be retained. In the period when law and equity files are separate a 30% (docket numbers ending in "3," "6," and "9") systematic sample of equity files shall be retained (i.e., Bristol — entered 1897 to June 30, 1974; Middlesex and Suffolk — entered 1892 to June 30, 1974). Except as provided in paragraphs (4) and (5) of Section A of this rule all other papers and records may be destroyed pursuant to the procedures established in Section A.

(4) All case papers in the following categories not already retained pursuant to the basic sample of paragraphs (1), (2) or (3) shall be retained separately and prominently stamped "Oversample":

(a) Files with a thickness of 1½ inches or more for the period of 1860 to 1889; 1¾ inches or more for the period of 1890 to 1919; 2 inches or more after 1919. (If flat-filed, one inch or more excluding depositions.)

(b) All files of cases appealed to the Supreme Judicial Court.

(5) Case papers or records in the following categories shall be completely retained:

(a) All records in Barnstable, Dukes, Essex, and Nantucket counties.

(b) All divorce and naturalization records.

(d) All records in periods when both docket books and extended records are missing.

(e) All records in periods in which there has previously been destruction of some records.

(f) All records prior to 1860.

(g) All records filed in or related to proceedings which have not been finally disposed of for more than twenty years. Unless the clerk is otherwise notified, any case which has been pending for twenty or more years shall be deemed to have been finally disposed of for more than twenty years. In any criminal case in which a defendant has been sentenced to more than twenty years imprisonment, the case papers or records shall be retained for a period corresponding to the sentence imposed in that case.

(6) All cases retained pursuant to this rule shall be stamped so as to be clearly visible on the front, "SAMPLED." All containers for such cases shall be labeled so as to be clearly visible on the front, "SAMPLED — SEE SELECTION CRITERIA IN CLERK'S OFFICE." Copies of the selection criteria shall be available in the vault containing records, in the clerk's office, and in the State Archives.

(7) At least thirty days before any papers or records are destroyed, notice that it is proposed to destroy papers or records pursuant to this rule shall have been given to the public by publication in a newspaper published in the county in which the office of the clerk is located and by posting a copy of such notice in the office of the clerk. The notice need not list specific cases but should identify the types of cases and the beginning and ending dates of the cases to be sampled (e.g. "civil cases 1900 through 1950"). A copy of such notice shall also be sent to the Chief Justice of the Supreme Judicial Court or his designee, to the Chief Administrative Justice of the Trial Court, and to the Administrative Justice of the Superior Court Department.

(8) No papers or records shall be destroyed without an order of the Administrative Justice of the Superior Court Department. Such order may be general in nature as provided for the notice in paragraph (7) of Section A of this rule.

(9) Exceptions from any general description of papers to be destroyed may be made by the clerk or Administrative Justice of the Superior Court Department at any time.

B. District Court, Boston Municipal Court, Juvenile Court and Housing Court Departments.

Case papers or records of the District Court, Boston Municipal Court, Juvenile Court and Housing Court Departments under the custody of the clerks of these Departments may be selectively retained pursuant to the following requirements:

(1) A systematic sample of case papers consisting of 5% (docket numbers ending in "00," "20," "40," "60," and "80") shall be retained. Except as provided in paragraphs (2), (3), (4), (5) and (6) of Section B of this rule, all other papers and records may be destroyed pursuant to the procedures established in Section B. If a case included within the 5 % sample (docket numbers ending in "00," "20," "40," "60," or "80") has no papers but has a card indicating that it was filed separately or was sent to the Superior Court, the card shall be retained as part of the sampled file.

(2) Case papers with a thickness of at least two inches (one inch, excluding depositions, if flat-filed) shall be retained regardless of whether they are part of the 5% sample described in paragraph (1). All such cases with a thickness of at least two inches (one inch, excluding depositions, if flat-filed) which are part of the 5 % sample (docket numbers ending in "00," "20," "40," "60," or "80") shall be maintained within the numbered sequence of retained sample cases. All other cases with a thickness of at least two inches (one inch, excluding depositions, if flat-filed) shall be retained separately from the main docket number sequence of sampled cases.

(3) All docket books and extended records (if any) shall be retained; and all records in periods when both docket books and extended records (if any) are missing shall also be retained.

(4) All records of any kind bearing date or known to have been filed earlier than the year eighteen hundred shall be retained.

(5) All naturalization and divorce (if any) records shall be retained.

(6) Except as otherwise provided in this paragraph and paragraph (7) of Section B of this rule, in order to be eligible for destruction, any case to which the papers relate shall have been finally disposed of for more than twenty years. Papers filed in or relating to criminal cases in the District Court and Boston Municipal Court Departments may be destroyed five years after the final disposition of such a case provided that the Department of the State Auditor has completed its audit of these papers. Unless the clerk is otherwise notified, any case which has been pending for twenty or more years shall be deemed to have been finally disposed of for more than twenty years.

(7) The following papers are not subject to the 5% sampling provision of paragraph (1) of Section B of this rule nor to the twenty-year requirement of paragraph (6) of Section B of this rule:

(a) Any papers filed in or relating to decriminalized motor vehicle cases may be destroyed five years after the final disposition of such a case, provided that the Department of the State Auditor has completed its audit of these papers.

(b) Any papers relating to a proceeding involving the alleged violation of laws, rules or regulations relating to motor vehicle parking, littering, bicycles, pedestrians or municipal dog control may be destroyed two years after the final disposition of such a case provided that the Department of the State Auditor has completed its audit of these papers.

A sample of the types of case papers listed in this paragraph (7) shall be retained by the random selection of twenty of each type of case paper for each year of records to be destroyed.

(8) All cases retained pursuant to this order shall be stamped so as to be clearly visible on the front, "SAMPLED." All containers for such cases shall be labeled so as to be clearly visible on the front, "SAMPLED — SEE SELECTION CRITERIA IN CLERK'S OFFICE." Copies of the selection criteria shall be available in the vault containing the records, in the clerk's office, and in the State Archives.

(9) At least thirty days before any papers or records are destroyed, notice that it is proposed to destroy papers or records pursuant to this rule shall have been given to the public by publication in a newspaper published in the county in which the office of the clerk is located and by posting a copy of such notice in the office of the clerk. The notice need not list specific cases but should identify the types of cases and the beginning and ending dates of the cases to be sampled (e.g., civil cases, 1900 through 1950). A copy of such notice shall be sent to the Chief Justice of the Supreme Judicial Court or his designee, to the Chief Administrative Justice of the Trial Court, and to the Administrative Justice of the Department.

(10) No papers or records of the District Court, Juvenile Court or Housing Departments shall be destroyed without an order, approved by the Administrative Justice of the Department, of the presiding justice of the division in which the papers or records are stored. No papers or records of the Boston Municipal Court Department shall be destroyed without an order of the Administrative Justice of that Department. Such orders may be general in nature, as provided for the notice in paragraph (9) of Section B of this rule.

(11) Exceptions from any general description of papers to be destroyed may be made by the presiding justice, clerk or Administrative Justice at any time.

1:12. RULE RELATIVE TO THE DISPOSAL OF STENOGRAPHIC NOTES OF TESTIMONY TAKEN IN THE COURTS OF THE COMMONWEALTH. G. L. c. 221, § 27A, as amended.

Stenographic notes of testimony made in any court of the Commonwealth in accordance with any provisions of law may be destroyed by the lawful custodian thereof after the expiration of six years from the date when such notes were taken; provided, however, that this rule shall not apply to notes of which a transcript shall have been ordered and not completed, or to notes as to which the court in which they were taken shall otherwise order.

1:13 TIME FOR REPORT OF MATERIAL FACTS IN THE PROBATE AND FAMILY COURT DEPARTMENT FOR CASES UNDER G. L. c. 215, § 11.

When, in accordance with G. L. c. 215, § 11, a judge of a division of the Probate and Family Court Department has been requested to report the material facts found by him, he shall report such facts within thirty days after the request is made.

1:14. INTEREST ON PECUNIARY LEGACIES AND TRUST DISTRIBUTIONS UNDER G. L. c. 197, § 20.

(1) Unless otherwise provided in the will or trust instrument, the rate of interest upon pecuniary legacies or pecuniary distributions under a trust instrument to which the provisions of G. L. c. 197, § 20, are applicable shall be eight percent per annum.

(2) The rate of interest provided for by this rule shall be applied in computing interest which becomes payable on or after the effective date of this rule. In a case where interest becomes payable prior to the effective date of this rule and the pecuniary legacy or pecuniary trust distribution remains unpaid on such date, interest shall be computed up to such date at four percent and shall be computed from and after such date at the rate provided for by this rule.

(3) This rule shall take effect on July 1, 1980.

CHAPTER ONE A. GENERAL RULES PARTIALLY SUPERSEDED BY THE MASSACHUSETTS RULES OF CIVIL PROCEDURE OR THE MASSACHUSETTS RULES OF CRIMINAL PROCEDURE. 1:01A. ASSIGNMENT OF COUNSEL IN NONCAPITAL CASES. ( Applicable to the Supreme Judicial Court, Appeals Court and the Housing Court Department.)

If a defendant charged with a crime, for which a sentence of imprisonment may be imposed, appears in any court without counsel, the judge shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel. Before assigning counsel, the judge shall interrogate the defendant and shall satisfy himself that the defendant is unable to procure counsel. If the judge finds that the defendant is able to procure counsel, he shall make a finding to that effect on the form herein established which shall be filed with the papers in the case. If the defendant elects to proceed without counsel, a waiver and a certificate of the judge on the form herein established shall be signed, respectively, by the defendant and the judge and filed with the papers in the case. If the defendant elects to proceed without counsel and refuses to sign the waiver, the judge shall so certify on the form herein established, which shall be filed with the papers in the case.

An attorney supplied by the Massachusetts Defenders Committee (G. L. c. 221, § 34D, as amended), or by a voluntary charitable group, corporation, or association, or one serving without charge, shall be appointed under this rule to represent an indigent defendant unless exceptional circumstances, for example, a conflict of interest, or the need of counsel speaking a foreign language, justify another appointment. If a judge shall find the appointment of another attorney is justified, he shall record in writing, to be filed with the clerk and placed with the papers in the case, a statement of reasons.

The clerk shall establish and maintain, currently indexed by name of the appointee, as part of the public records of the court open during regular business hours to public inspection, an appointment docket with respect to each such appointment. Such docket shall contain the following:

(a) the docket number and the name of the case,

(b) the offense or offenses charged against the defendant,

(d) the date of the appointment,

(e) the name of the judge making the appointment, and

(f) the amount of the fee for legal services.

The form of such docket shall be that prescribed by the Chief Justice of the Supreme Judicial Court, the Chief Justice of the Appeals Court, and the Administrative Justice of the Housing Court Department for their respective courts.

The form established by this rule shall be as follows:

COMMONWEALTH OF MASSACHUSETTS.

....................... ss. ........................... Court

No.(s) ................... ................... ................... ...................

COMMONWEALTH v. ........................... FINDING OF JUDGE

I, ..............................................., hereby find that (Name of Judge)

.................................................... is (Name of Defendant)

( ) unable to procure counsel.

( ) able to procure counsel.

Signed ............................ Signature of Judge

.............., 19 .....

WAIVER OF COUNSEL.

I, ..........................................., have been informed Name of Defendant

of my right, pursuant to Rule 1:01A of the Rules of the Supreme Judicial Court,

( ) to have a lawyer appointed by the court at public expense

( ) to hire a lawyer at my own expense

to represent me at every stage of the proceedings in this case. I elect to proceed without a lawyer and waive my right to such a lawyer.

Signed ............................ Signature of Defendant

....................., 19 ......

CERTIFICATE OF JUDGE

I, ..........................................., hereby certify that (Name of Judge)

..................................... has been informed of his right (Name of Defendant)

( ) to have a lawyer appointed by the court at public expense

( ) to hire a lawyer at his own expense

to represent him at every stage of the proceedings in this case; that he has elected to proceed without a lawyer, and that

( ) he has executed the above waiver in my presence.

( ) he has refused to sign a waiver.

........................................ Signature of Judge

....................., 19 .....

1:02A. DEPOSITIONS AND DISCOVERY. ( Applicable to certain civil cases.)

Section 1. Depositions Pending Action.

(a) When Depositions May Be Taken. Any party to an original civil proceeding pending in the Supreme Judicial Court other than such a proceeding governed by the Massachusetts Rules of Civil Procedure, or to a civil proceeding pending in the Land Court Department or the Probate and Family Court Department other than such a proceeding governed by the Massachusetts Rules of Civil Procedure or the Massachusetts Rules of Domestic Relations Procedure (adopted by the judges of the Probate and Family Court Department), may take the testimony of any person, including a party, by deposition upon oral examination for the purpose of discovery or for use as evidence or for both purposes. After service of process the deposition may be taken without leave of court except that leave, granted with or without notice, must be obtained if notice of the taking is served by the plaintiff prior to the time allowed the defendant for appearance; or where in an action at law there is no reasonable likelihood that recovery will exceed five thousand dollars if the plaintiff prevails; or in an action at law there has been a hearing before an auditor. The attendance of witnesses may be compelled by the use of summons or subpoena as provided by Section 4 (a). The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

(b) Scope of Examination. Unless otherwise ordered by the court as provided by Section 4 (b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending proceeding, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. The party taking the deposition shall not require the production or submission for inspection of any writing, plan, recording, model, photograph, or other thing prepared by or for the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial unless the court otherwise orders on the ground that a denial of production or inspection will result in an injustice or undue hardship; nor shall the deponent be required to produce or submit for inspection any part of a writing which reflects an attorney's mental impressions, conclusions, opinions, or legal theories, or, except as provided in Section 7 (b) the conclusions of an expert. The deponent may not be examined on or be required to produce for inspection any liability insurance policy or indemnity agreement unless such policy or agreement would be admissible in evidence at the trial of the action.

(c) Examination and Cross-Examination. Examination and cross-examination of deponents may proceed as permitted at trial in the court where the proceeding is pending.

(d) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

(2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director or managing agent of a public or private corporation which is a party may be used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (i) that the witness is dead; or (ii) that the witness is out of the State, unless it appears that the absence of the witness was procured by the party offering the deposition; or (iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (iv) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (v) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. Substitution of parties does not affect the right to use depositions previously taken; and, when a proceeding in any court of the United States or of any State has been dismissed an another proceeding involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former proceeding may be used in the latter as if originally taken therefor.

(e) Objections to Admissibility. Subject to the provisions of Sections 2 (b) and 5 (c), objections may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

(f) Effect of Taking or Using Depositions. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (2) of subsection (d) of this section. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.

Section 2. Persons Before Whom Depositions May Be Taken.

(a) Within the Commonwealth. Within the Commonwealth depositions shall be taken before an officer authorized to administer oaths by the laws of the Commonwealth or the United States, or before a person appointed by the court, in which the proceeding is pending. A person so appointed has the power to administer oaths and take testimony.

(b) Outside the Commonwealth. Within another State, or within a territory or insular possession subject to the dominion of the United States, or in a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, whether by the law thereof or by the law of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony, or (3) pursuant to letters rogatory. A commission or letters rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or letters rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and letters rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. Letters rogatory may be addressed "To the Appropriate Authority in [here name the State, territory, or country]." Evidence obtained in a foreign country in response to letters rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules.

(c) Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee or partner or associate of such attorney or counsel, or is financially interested in the proceeding.

Section 3. Stipulations Regarding the Taking of Depositions.

If the parties so stipulate in writing, depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like any other depositions.

Section 4. Procedures for Depositions Upon Oral Examination.

(a) Notice of Examination: Time and Place. A party desiring to take the deposition of any person upon oral examination, at least seven days before the time of the taking of the deposition, shall give notice in writing to every other party to the proceeding and file a copy of the notice in court in the proceeding. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party to the proceeding, the court may for cause shown enlarge or shorten the time. A resident of the Commonwealth shall not be required by subpoena to travel a distance of more than fifty miles from his place of residence or from his place of business or employment, unless the court otherwise orders. A nonresident of the Commonwealth may be required by subpoena to attend only within fifty miles from the place within the Commonwealth wherein he is served with a subpoena, or at such other convenient place as is fixed by an order of court. The court may regulate at its discretion the time, place and order of taking depositions as shall best serve the convenience of the parties and witnesses and the interests of justice.

(b) Orders for the Protection of Parties and Deponents. After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the proceeding is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the proceeding and their officers or counsel, or that the deposition be sealed and opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, undue expense, embarrassment, or oppression. The court may in its discretion where notice is given of the taking of depositions outside the State and at great distances from the place where the case is to be tried, require the party taking the deposition to pay the traveling expenses of the opposite party and of his attorney where their attendance is reasonably necessary at the taking of said deposition; and where it appears that the witness whose deposition is sought is under the control of the party taking the deposition, the court may require such witness to be brought within the State and his deposition taken there. The power of the court under this rule shall be exercised with liberality toward the accomplishment of its purpose to protect parties and witnesses.

(c) Record of Examination; Oath; Objections. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically and transcribed unless the parties agree otherwise. The cost thereof shall be borne by the party taking the deposition, except that the court may for cause shown order the cost of stenographer or transcription equitably apportioned among the parties. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may transmit written interrogatories to the officer, who shall propound them to the witness and record the answers verbatim.

(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, any justice of the court in which the action is pending may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in subdivision (b). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the proceeding is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. In granting or refusing such order the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable.

(e) Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress under Section 5 (d) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

(f) Certification and Filing by Officer; Copies; Notice of Filing.

(1) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the proceeding and marked "Deposition of [here insert name of witness]" and shall promptly deliver or mail it to the clerk of the court in which the proceeding is pending. The parties by stipulation may waive transcription and filing of the deposition.

(2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.

(3) The party taking the deposition shall give prompt notice of its filing to all other parties.

(4) Upon being filed, the deposition shall be open to inspection unless otherwise ordered by the court.

(g) Failure to Attend or to Serve Summons or Subpoena; Expenses.

(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his attorney in so attending, including reasonable attorney's fees.

(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a summons or subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his attorney in so attending, including reasonable attorney's fees.

(h) Engagements of Counsel. The engagement of counsel at the taking of a deposition shall be recognized to the extent that the court in which the proceeding is pending shall order upon application in writing to the court not less than three days prior to the time for the taking of a deposition.

Section 5. Effect of Errors and Irregularities in Depositions.

(a) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

(b) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

(1) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

(2) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.

(d) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Section 4 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

Section 6. Discovery and Production of Documents and Things for Inspection, Copying, or Photographing.

Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Section 4 (b), the court may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of examination permitted by Section 1 (b) and which are in his possession, custody, or control; or (2) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, testing, or photographing the property or any designated object or operation thereon within the scope of examination permitted by Section 1 (b). The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.

Section 7. Physical and Mental Examination of Persons.

(a) Order for Examination. In a proceeding in which the mental or physical condition of a party is in controversy, or may affect the conduct of the proceedings, the court in which the proceeding is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

(b) Report of Findings.

(1) If requested by the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings and conclusions. After such request and delivery the party causing the examination to be made shall be entitled upon request to receive from the party examined a like report of any examination, previously or thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such report the court on motion and notice may make an order requiring delivery on such terms as are just, and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial.

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that proceeding or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition.

Section 8. Refusal to Make Discovery; Consequences.

(a) Refusal to Answer. If a party or other deponent refuses to answer any questions propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer. Thereafter, on reasonable notice to all persons affected thereby, he may apply to the court for an order compelling an answer. If the motion is granted and if the court finds that the refusal was without substantial justification the court shall require the refusing party or deponent and the party or attorney advising the refusal or either of them to pay to the examining party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney's fees. If the motion is denied and if the court finds that the motion was made without substantial justification, the court shall require the examining party or the attorney advising the motion or both of them to pay to the refusing party or witness the amount of the reasonable expenses incurred in opposing the motion, including reasonable attorney's fees.

(b) Failure to Comply with Order.

(1) Contempt. If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court, the refusal may be considered a contempt of court.

(2) Other Consequences. If any party or an officer or managing agent of a party refuses to obey an order made under subdivision (a) of this section requiring him to answer designated questions, or an order made under Section 6 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order under Section 7 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following:

(i) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the proceeding in accordance with the claim of the party obtaining the order;

(ii) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition;

(iii) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(iv) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination.

(c) Failure of a Party to Attend or Serve Answers. If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the proceeding or any part thereof, or enter a judgment by default against that party.

(d) Expenses Against the Commonwealth. Expenses and attorney's fees are not to be imposed upon the Commonwealth under this section.

Section 9. Costs on Depositions.

The taxing of costs in the taking of depositions shall be subject to the discretion of the court. No costs shall be allowed unless the court finds that the taking of the deposition was reasonably necessary, whether or not the deposition was actually used at trial. Taxable costs may include the costs of service of summons or subpoena upon the deponent, the reasonable fee of the officer before whom the deposition is taken, the stenographer's reasonable fee for attendance, and the costs of transcription or such part thereof as the court may fix.

1:03A. TRUSTEE PROCESS. ( Applicable to certain civil cases.)

(1) Availability of Trustee Process. In connection with any personal action or proceeding not governed by the Massachusetts Rules of Civil Procedure, the Massachusetts Rules of Domestic Relations Procedure (adopted by the judges of the Probate and Family Court Department), or the District/ Municipal Courts Rules of Civil Procedure, trustee process may be used in the manner and to the extent provided by law, but subject to the requirements of this rule, to secure satisfaction of a judgment which the plaintiff may recover, provided, however, that no person shall be adjudged trustee for any amount due from him to the defendant for wages or salary for personal labor or services of the defendant except on a claim that has first been reduced to judgment or otherwise authorized by law; and in no event shall the attachment exceed the limitations prescribed by law.

(2) Necessity of Prior Hearing. No trustee process may be served unless attachment on trustee process for a specified amount has been approved by order of the court. Except as provided in paragraph (8) of this rule, the order of approval may be entered only after notice to the defendant and hearing and upon a finding by the court that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the trustee process over and above any liability insurance shown by the defendant to be available to satisfy the judgment.

(3) Procedure. A plaintiff who desires to trustee goods, effects, or credits of the defendant shall file in the court to which the action is returnable the writ, properly completed, the declaration, and a motion for approval of attachment on trustee process. The motion shall be supported by affidavit or affidavits meeting the requirements set forth in paragraph (10) of this rule. Except as provided in paragraph (8) of this rule, a copy of the writ, declaration, motion and supporting affidavit or affidavits, together with notice of hearing thereon, shall be mailed to the defendant by certified mail, return receipt requested, at his last known place of residence, or delivered to him, seven days (or if the credits to be attached include wages, ten days) at least before the date set for the hearing.

Except as provided in paragraph (7) of this rule, any trustee process shall be served within thirty days after the date of the order approving the attachment. Promptly after the service of the trustee process upon the trustee or trustees, a copy of the trustee process with the officer's endorsement thereon of the date or dates of service shall be mailed to the defendant in the manner provided in paragraph (3).

(4) Appearance of Defendant. Inclusion of a copy of the writ in the notice of hearing shall not constitute personal service of the writ upon the defendant. The notice shall inform the defendant that by appearing to be heard on the motion for approval of an attachment he will not thereby submit himself to the jurisdiction of the court nor waive service of the writ and summons or citation upon him in the manner provided by law.

(5) Answer by Trustee; Subsequent Proceedings. A trustee shall file, but need not serve, his answer, under oath, or signed under the penalties of perjury, within the time prescribed in G. L. c. 246, § 10, unless the court otherwise directs. The answer shall disclose plainly, fully, and particularly what goods, effects or credits, if any, of the defendant were in the hands or possession of the trustee when the trustee process was served upon him. The proceedings after filing of the trustee's answer shall be as provided by law.

A trustee's failure to file an answer within the time allowed by this rule shall subject him to default in accordance with law.

(6) Trustee Process in Third-Party Action. Trustee process may be used by a party bringing a third-party action in the same manner as upon an original action.

(7) Subsequent Trustee Process. Either before or after expiration of the applicable period prescribed in paragraph (3) of this rule for serving trustee process, the court may, subject to the provisions of paragraph (8) of this rule, order another or an additional service of the trustee process upon the original trustee. A trustee not named in the original writ may be served subject to the provisions of all paragraphs of this rule, except that if the defendant has previously been served with process the plaintiff need not mail him a copy of the writ; and if the plaintiff has previously filed any motion pursuant to paragraph (3) of this rule, or paragraph (3) of rule 1:04A, he need not mail the defendant a copy of either the writ or the declaration.

(8) Ex Parte Hearings on Trustee Process. An order approving trustee process for a specific amount may be entered ex parte upon findings by the court that there is a reasonable likelihood that the plaintiff will recover judgment in an amount equal to or greater than the amount of the trustee process over and above any liability insurance known or reasonably believed to be available, and that either (a) the person of the defendant is not subject to the jurisdiction of the court in the action, or (b) there is a clear danger that the defendant if notified in advance of the attachment on trustee process will withdraw the goods, effects or credits from the hands and possession of the trustee and remove them from the Commonwealth or will conceal them, or (c) there is immediate danger that the defendant will dissipate the credits, or damage or destroy the goods or effects to be attached on trustee process. The motion for an ex parte order shall be accompanied by a certificate by the plaintiff or his attorney of the amount of any liability insurance which he knows or has reason to believe will be available to satisfy any judgment against the defendant in the action, and shall be supported by affidavit or affidavits meeting the requirements set forth in paragraph (10) of this rule.

(9) Dissolution or Modification of Ex Parte Trustee Process. On two days' notice to the plaintiff, or on such shorter notice as the court may prescribe, a defendant whose goods, effects or credits have been attached on trustee process pursuant to an ex parte order entered under paragraph (8) of this rule may appear, without thereby submitting his person to the jurisdiction of the court, file a motion, supported by affidavit, for the dissolution or modification of the trustee process, and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. One day at least before such hearing the plaintiff shall furnish the defendant with a copy of the writ, declaration, motion for the ex parte order, and supporting affidavits. At the hearing the plaintiff shall have the burden of justifying any finding in the ex parte order which the defendant has challenged by affidavit. Nothing herein shall be construed to abolish or limit any means for obtaining dissolution, modification or discharge of an attachment that is otherwise available by law.

(10) Requirements for Affidavits. Affidavits required by this rule shall set forth specific facts sufficient to warrant the required findings and shall be upon the affiant's own knowledge, information and belief, and, so far as upon information and belief, shall state that he believes this information to be true.

(11) Form of Hearing. At any hearing held under this rule, either party may adduce testimony and may call witnesses (including any opposing party).

(12) Definitions. The term "plaintiff" shall include a petitioner; "defendant" shall include a respondent; "writ" shall include a summons or an order of notice in the action or proceeding; "declaration" shall include any initial pleading; and "judgment" shall include an order or decree.

1:04A. ATTACHMENT. ( Applicable to certain civil cases.)

(1) Availability of Attachment. Real estate, goods, chattels and other property may be attached in any personal action or proceeding, not governed by the Massachusetts Rules of Civil Procedure, the Massachusetts Rules of Domestic Relations Procedure (adopted by the judges of the Probate and Family Court Department), or the District/Municipal Courts Rules of Civil Procedure, in the manner and to the extent provided by law but subject to the requirements of this rule.

(2) Necessity of Prior Hearing. No attachment upon an original writ may be made unless such attachment for a specified amount has been approved by a justice of the court to which the writ is returnable. The approval of such justice shall be endorsed upon the writ. Except as provided in paragraph (5) of this rule, such approval may be endorsed only after notice to the defendant and hearing and upon a finding by the court that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant to be available to satisfy the judgment.

(3) Procedure. A plaintiff who desires to attach real estate, goods, chattels or other property of the defendant shall file in the court to which the writ is returnable the writ in the action, properly completed, the declaration, and a motion for approval of the attachment. The motion shall be supported by affidavit or affidavits meeting the requirements of paragraph (7) of this rule. The motion shall be marked for hearing and, except as provided in paragraph (5) of this rule, a copy of the writ, declaration, motion, supporting affidavit or affidavits, and a notice of hearing shall be mailed to the defendant by certified mail, return receipt requested, at his last known place of residence, or delivered to him, seven days at least before the date set for hearing. Except as provided in paragraph (9) of this rule, any attachment shall be made within thirty days after the date of the order approving the attachment. Promptly after the attachment is made, a copy of the writ with the officer's endorsement thereon of the date of any attachment shall be mailed to the defendant in the manner provided in paragraph (3).

(5) Ex Parte Approval. Approval of an attachment and endorsement thereof upon the writ may be granted ex parte upon findings by the court that there is a reasonable likelihood that the plaintiff will recover judgment in an amount equal to or greater than the amount of the attachment over and above any liability insurance known or reasonably believed to be available, and that either (a) the person of the defendant is not subject to the jurisdiction of the court in the action, or (b) there is a clear danger that the defendant if notified in advance of attachment of his property will remove it from the Commonwealth or conceal or convey it, or (c) there is immediate danger that the defendant will damage, destroy or waste the property to be attached. The motion for such ex parte approval of attachment shall be accompanied by a certificate by the plaintiff or his attorney of the amount of any liability insurance which he knows or has reason to believe will be available to satisfy any judgment, and shall be supported by affidavit or affidavits meeting the requirements of paragraph (7) of this rule.

(6) Dissolution or Modification of Ex Parte Attachments. On two days' notice to the plaintiff, or on such shorter notice as the court may prescribe, a defendant whose real estate, goods, chattels or other property has been attached upon a writ approved ex parte as provided in paragraph (5) of this rule may appear, without thereby submitting his person to the jurisdiction of the court, and move the dissolution or modification of the attachment. Such motion shall be heard and determined as expeditiously as the ends of justice require. At such hearing the plaintiff shall have the burden of justifying any finding made in the ex parte order which the defendant has challenged by affidavit. Nothing herein shall be construed to abolish or limit any means for obtaining dissolution, modification or discharge of an attachment that is otherwise available by law.

(7) Requirements for Affidavits. Affidavits required by this rule shall set forth specific facts sufficient to warrant the required findings, and shall be upon the affiant's own knowledge, information or belief and, so far as upon information and belief, shall state that he believes this information to be true.

(8) Form of Hearing. At any hearing held under this rule, either party may adduce testimony and may call witnesses (including any opposing party).

(9) Subsequent Attachment. Property subject to attachment may, during the pendency of the action or proceeding, be attached subject to the provisions of this rule, except that if the defendant has previously been served with process the plaintiff need not mail the defendant a copy of the writ; and if the plaintiff has previously filed any motion pursuant to paragraph (3) of this rule, or paragraph (3) of rule 1:03A, he need not mail the defendant a copy of either the writ or the declaration or similar pleading.

(10) Definitions. The term "plaintiff" shall include a petitioner; "defendant" shall include a respondent; "writ" shall include a summons or an order of notice in the action or proceeding; "declaration" shall include any initial pleading; and "judgment" shall include an order or decree.

CHAPTER TWO. RULES FOR THE REGULATION OF PRACTICE BEFORE THE SINGLE JUSTICE OF THE SUPREME JUDICIAL COURT. 2:01. FIXING TIME FOR PLEADINGS AND PROCEEDINGS. ( Applicable to all cases.)

The court in its discretion may order or permit pleadings to be filed, or any act to be done, at other times than are provided in these rules.

Whenever in the progress of any case it becomes necessary that a pleading be filed or other step taken so that the case may proceed, and the matter is not covered by any provision of statute or rule, the court may fix the time for the filing of such pleading or make any other appropriate order.

2:02. FORM AND INDORSEMENT OF PAPERS. ( Applicable to all cases. See S.J.C. Rule 1:08.)

All papers filed in the county court shall be legibly typed with double spacing. The page shall be eight and three-eighths or eight and one-half inches in width and ten and three-fourths or eleven inches in height. The left hand margin shall be not less than one and three-fourths inches. The right hand margin shall be not less than one inch. Documents shall be bound at the left side only. They shall be filed unfolded except applications for admission to the bar.

All information required by S.J.C. Rule 1:08 shall be indorsed on the paper before filing in the clerk's office.

In case of failure to comply with this rule, the court may entertain a motion to strike such paper from the files, and may allow such motion to strike or deny it upon terms against the party at fault.

2:03. APPEARANCES. ( Applicable to criminal cases.)

The name, address, and business telephone number of the attorney for every party, or of the party if no attorney appears for him, shall be entered upon the docket as they appear upon the paper or papers constituting the appearance, or some paper transmitted to the clerk therewith. Where no address of the attorney or party, as the case may be, appears upon the docket, notice to such party may be given by posting the same publicly in the clerk's office or in a room, hall or passage adjacent thereto. The clerk upon request shall post the same.

A substitution of attorneys or change of address or telephone number shall be entered by the clerk upon the docket on written request filed in the particular case. The court and the parties, until such substitution or change is entered, and thereafter until the parties have notice thereof, may rely on action by, and notice to, any attorney previously appearing, and on notice at an address previously entered.

Any appearance shall constitute a general appearance unless the purposes thereof are specified in writing.

2:04. GIVING OF NOTICE. ( Applicable to criminal cases.)

A notice to a party required by or given in pursuance of these rules, or any statute relative to procedure not requiring a different notice, shall be in writing, and, except as otherwise permitted by rule 2:03, shall be given to such party or his attorney or any of his attorneys by delivering the same personally to him or by mailing the same, postage prepaid, to him at his business address or the address entered under rule 2:03.

An affidavit of the person giving the notice shall be evidence thereof.

This rule shall not apply to original process or notice to bring a party before the court.

The words "registered mail" in these rules shall include "certified mail."

2:05. TIME FOR PLEADINGS AND PROCEEDINGS WHEN LAST DAY FOR PERFORMANCE FALLS ON SATURDAY, SUNDAY, OR A LEGAL HOLIDAY. ( Applicable to criminal cases.)

When the day or the last day for the performance of any act authorized or required by these rules or by any order of the court falls on Saturday, Sunday, or a legal holiday, the act may be performed on the next succeeding business day, unless a contrary intent appears.

2:06. ELIMINATING REQUIREMENT FOR VERIFICATION BY OATH OR AFFIRMATION. ( Applicable to criminal cases.)

No written statement in any proceeding in this court required to be verified by affidavit shall be required to be verified by oath or affirmation if it contains or is verified by a written declaration that it is made under the penalties of perjury.

2:07. HEARINGS BEFORE SINGLE JUSTICE. NOTICE.

When any party desires a hearing before a single justice, except at a sitting of the court held in Suffolk County, he may apply to a justice to appoint a time and place for the hearing; and when such time and place have been appointed, notice shall be given in accordance with the Massachusetts Rules of Civil Procedure (see, e.g., rule 5 of Mass. R. Civ. P.) or the Massachusetts Rules of Appellate Procedure, where applicable (see, e.g., rules 1 [b], 13, and 15 [c] of Mass. R. A. P., and S.J.C. Rule 2:20). But this rule shall not prevent a party from obtaining a temporary restraining order, or a dissolution of the same or of an injunction, or other order, upon a shorter notice, or without notice, if the court shall think the same reasonable. And cases may be heard by consent of parties, and the permission of the court, without such notice.

2:08. JURY ISSUES. ( Applicable to criminal cases.)

Whenever it is necessary or proper to have any fact tried and determined by a jury, the court will direct an issue for that purpose, to be framed by the parties, containing a distinct affirmation and denial of the points in question, or in such form as the court shall order; and the issue thus framed and joined shall be submitted to a jury together with such part of the answers, depositions, and other proceedings in the cause as the court shall direct.

2:09. COPIES TO ADVERSE PARTIES. ( Applicable to criminal cases.)

When any pleading or motion is filed after the bill, complaint, or petition, or when any bill of particulars or specifications or answers to interrogatories are filed, a copy thereof shall be given not later than the day of filing to each of the adverse parties in the manner provided for notices by rule 2:04.

2:10. MONEY PAID INTO COURT. ( Applicable to civil cases.)

Money paid into court shall be in the custody of the clerk, whose duty it shall be to receive it when paid under the authority of law or rule or order of the court. He shall pay it as directed by the court; but money paid into court upon tender, or otherwise for the present and unconditional use of a party, shall be paid, on request, without special order, with any interest which has accrued thereon, to such party, at whose risk it shall be from the time when it is paid into court. Money payable to a party may be paid to his attorney of record.

No interest shall be deemed to accrue on any sum less in amount than the minimum on which interest is payable in the depositary in which the money is deposited.

2:11. HEARINGS UPON MOTIONS GROUNDED ON FACTS. ( Applicable to criminal cases.)

The court need not hear any motion, or opposition thereto, grounded on facts, unless the facts are verified by affidavit, or apparent upon the record and files, or are agreed and stated in writing signed by the attorneys for the parties interested.

2:12. POSTPONEMENT FOR WANT OF EVIDENCE. ( Applicable to criminal cases.)

The court need not entertain any motion for postponement, grounded on the want of material testimony, unless supported by an affidavit, which shall state (1) the name, and, if known, the residence, of the witness whose testimony is wanted, (2) the particular testimony which he is expected to give, with the grounds of such expectation, and (3) the endeavors and means that have been used to procure his attendance or deposition; to the end that the court may judge whether due diligence has been used for that purpose. The party objecting to the postponement shall not be allowed to contradict the statement of what the absent witness is expected to testify, but may disprove any other fact stated in such affidavit. Such motion will not ordinarily be granted if the adverse party will admit that the absent witness would, if present, testify as stated in the affidavit, and will agree that the same shall be received and considered as evidence at the trial or hearing, as though the witness were present and so testified; and such agreement shall be in writing, upon the affidavit, and signed by such adverse party or his attorney. The same rule shall apply, mutatis mutandis, when the motion is grounded on the want of any material document, thing, or other evidence. In all cases the granting or denial of a motion for postponement shall be discretionary, whether the foregoing provisions have been complied with or not.

2:13. SPECIAL MASTERS AND COMMISSIONERS. ( Applicable to all cases.)

The full court may designate special masters and commissioners to deal with specified cases or with such matters as may be referred to them by a written order of a single justice or of the full court. The acts of any such special master and commissioner, when confirmed or approved, by a single justice or by the full court, as the case may be, shall have all the force and effect of a decision by a single justice or by the full court.

2:14. WRIT OF PROTECTION. ( Applicable to all cases.)

A writ of protection shall issue only upon the application of the person for whom the writ of protection is to be issued, or some person in his behalf, and upon order of the court, and then only in case it is made to appear to the court, by affidavit and any other evidence that the court may require, (1) that the application is made in good faith and for the purpose of enabling such person to attend this court as a party or witness in some specified case pending, (2) if such person is a party, that such case has not been brought collusively to enable him to obtain a writ of protection, and (3) if such person is a witness, that he has not been required to attend as a witness by his own request or procurement to enable him to obtain a writ of protection.

2:15. OBJECTIONS. ( See Mass. R. Civ. P. 46.)

(1) Civil Cases. Objections to evidence in civil cases shall be decided without argument, unless the presiding judge calls upon the parties to state the grounds upon which the evidence is offered or objected to.

(2) Criminal Cases. Exceptions to rulings or orders of the court in criminal cases are unnecessary and for all purposes for which an exception has heretofore been necessary, it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court, but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him.

If a party objects to a ruling or order of the court, he may state the precise legal grounds of his objection, but he shall not argue or further discuss such grounds unless the court calls upon him for such argument or discussion.

Objections to any opinion, ruling, direction or judgment made in the absence of counsel shall be taken by a writing filed with the clerk within three days after receipt from the clerk of notice thereof.

2:16. REQUESTS FOR RULINGS. ( Applicable to all cases.)

Requests for rulings, when appropriate, shall be made in writing before the closing arguments unless special leave is given to present further requests later.

2:17. TIME FOR ARGUMENTS. ( Applicable to criminal cases.)

All arguments shall be limited to one-half hour on each side unless, for good cause shown, the court shall allow further time; and, when more than one counsel are to be heard on the same side, the time may be divided between them as they may elect.

2:18. ORDER OF BUSINESS. SINGLE JUSTICE SITTINGS.

The justice designated to hear matters within the jurisdiction of a single justice at Boston will come in once each week, except in the weeks in which his attendance with the full court is required during consulation or argument, and except as the number of cases to be heard does not require any sitting. The sitting will be on Wednesday unless the single justice otherwise directs. During the months of July, August, and September no case will be heard on the merits unless for special cause shown. A weekly list for hearing in Boston will be made up on which cases from any county may be set down, either by order of the court; or by agreement of counsel and notice to the clerk; or by written notice to all parties interested seven days at least before the day of hearing and by filing with the clerk not later than the day preceding the hearing in accordance with the provisions of the Massachusetts Rules of Civil Procedure (see Rules 5 and 6 [c] of Mass. R. Civ. P.) or the Massachusetts Rules of Appellate Procedure, where applicable (see, e.g., Rules 1 [b] and 13 [d] of Mass. R. A. P., and S.J.C. Rule 2:20). Matters to be heard before a single justice will be heard in Boston unless the full court or the single justice shall otherwise order. The single justice in his discretion may set any matter for hearing in any place within the Commonwealth.

2:19. REVIEWS OF ORDERS OF DEPARTMENT OF PUBLIC UTILITIES. ( Applicable to proceedings to review orders, etc., of the Department of Public Utilities.)

So far as the Massachusetts Rules of Civil Procedure are applicable, they shall govern proceedings brought under the provisions of G. L. c. 25, § 5, or acts in amendment thereof.

Unless the interests of justice plainly require, no stay of an order of the department of public utilities shall be ordered except after notice to the Attorney General or the commissioners of the department.

An order of the department fixing the rates, fares, charges, or prices for service furnished by a person or corporation under its jurisdiction shall not be stayed unless provision be made by the party applying for such stay by bond or other security for the repayment, in the event the order is finally sustained, of so much of rates, fares, charges, or prices collected, while such stay is in effect, as is in excess of those fixed in the order.

2:20. APPEALS FROM DECISIONS OF APPELLATE TAX BOARD.

Interlocutory matters arising in appeals from the decisions of the Appellate Tax Board and questions of final disposition thereof when further proceedings appear unnecessary may be presented to a single justice, who may after notice hear and determine the same both as to questions of law and of fact or reserve and report the case.

CHAPTER THREE. ETHICAL REQUIREMENTS AND RULES CONCERNING THE PRACTICE OF LAW. 3:01. ATTORNEYS.

Section 1. Applications for Admission.

1.1 Petitions. Persons desiring admission to the bar of the Commonwealth shall apply by filing a petition for admission with the Clerk of the Supreme Judicial Court for the county of Suffolk.

1.2 Recommendations. Each petition shall be accompanied by the recommendation of a member of the bar of this Commonwealth.

1.3 Referral to Board of Bar Examiners. All petitions for admission shall be referred to the Board of Bar Examiners for a report as to the character, acquirements and qualifications of the applicant.

Section 2. Bar Examinations.

2.1 Time and Place. Law examinations shall be held at least twice a year in Boston and in such other places as the Board of Bar Examiners shall designate. The Board shall fix the times and places of the examinations and shall give due notice thereof.

Section 3. Qualifications for Taking Bar Examination.

3.1 High School. Each applicant for admission by examination shall have been graduated from a public day high school or its equivalent, or shall have received the equivalent education, in the opinion of the Board.

3.2 College. Each applicant shall have completed the work acceptable for a bachelor's degree in a college or university, or have received an equivalent education in the opinion of the Board.

3.3 Law School. Each applicant shall have graduated with a degree of bachelor of laws or juris doctor from a law school which, at the time of graduation, is approved by the American Bar Association or is authorized by statute of the Commonwealth to grant the degree of bachelor of laws or juris doctor.

3.4 Foreign Law Schools. Any applicant who received his legal education at a law school located outside of any State, district or territory of the United States shall have pre-legal education equivalent, in the Board's opinion, to that set forth in subsections 3.1 and 3.2 and legal education equivalent, in the Board's opinion, to that provided in law schools approved by the American Bar Association. Before permitting such an applicant to take the law examination, the Board in its discretion may, as a condition to such permission, require such applicant to take such further legal studies as the Board may designate at a law school approved by the American Bar Association.

3.5 Exclusion. Subsections 3.1 to 3.4 shall not apply to applicants who have heretofore been examined under eligibility rules previously in force. To these applicants, the rules in force at their first examination shall apply.

3.6 Multistate Professional Responsibility Examination. To be eligible to take the law examination each applicant shall have passed the Multistate Professional Responsibility Examination. Subsection 3.6 shall become effective January 1, 1982, and shall apply to law examinations after that date.

Section 4. Public Notice of Bar Examination Results.

4.1 Publication. The Board of Bar Examiners shall publish a list, for three successive days, of those applicants who passed the written law examination and, who, if no objection is made, will be recommended to the Supreme Judicial Court for admission.

4.2 Notice to the Court. A copy of the list shall be sent to the Clerks of the Supreme Judicial Court, to the Board of Bar Overseers, to the Massachusetts Bar Association, the Boston Bar Association and such other bar associations as the Board of Bar Examiners shall determine.

4.3 Report to Court. No less than fifteen days after the first publication of the list, the Board of Bar Examiners shall report to the Supreme Judicial Court the names of those applicants found qualified for admission.

Section 5. Disposition of Petitions for Admission.

5.1 Qualified Applicants. The petitions for admission of those who pass the law examination and who are found by the Board of Bar Examiners to be of good moral character and of sufficient acquirements and qualifications may be allowed and the applicants admitted upon subscription to the attorneys' oaths, at such times and places as the Supreme Judicial Court shall appoint.

5.2 Non-Qualified Applicants. The petitions of those found not qualified shall be dismissed at the expiration of sixty days from the Board of Bar Examiners' report of non-qualification, unless within that period the Chief Justice of the Supreme Judicial Court, on application of the petitioner, shall order a hearing on the matter.

Section 6. Admission Without Examination.

6.1 Attorneys Admitted in Other States. A person who has been admitted as an attorney of the highest judicial court of any State, district or territory of the United States may apply to the Supreme Judicial Court for admission, without examination, as an attorney in this Commonwealth. The Board of Bar Examiners may, in its discretion, excuse the applicant from taking the regular law examination on the applicant's compliance with the following conditions:

6.1.1 The applicant's principal residence is in the Commonwealth of Massachusetts.

6.1.2 The applicant shall have been admitted in the other State, district or territory, for at least five years prior to applying for admission in the Commonwealth, and shall provide the court with a certificate of admission from the highest judicial court of such State, district or territory.

6.1.3 The applicant shall have so engaged in the practice or teaching of law since the prior admission as to satisfy the Board of Bar Examiners of his or her good moral character and professional qualifications.

6.1.4 The applicant shall submit to the Board of Bar Examiners letters of recommendation for admission from three members of the bar of the Commonwealth, or of the State, district or territory of prior admission, or of the bar of the State, district or territory in which the applicant has last resided.

6.1.5 The applicant shall have graduated from high school, or shall have received the equivalent education, in the opinion of the Board, completed work for a bachelor's degree at a college or university, or its equivalent, and graduated from a law school which at the time of graduation, was approved by the American Bar Association.

6.2 Attorneys Admitted in Foreign Countries. A person who has been admitted or enrolled as an attorney of the highest judicial court of a foreign country may apply to the Supreme Judicial Court to be admitted, without examination, as an attorney in this Commonwealth. The Board of Bar Examiners may, in its discretion, excuse the applicant from taking the regular law examination on compliance with the following conditions:

6.2.1 The applicant's principal residence is in the Commonwealth of Massachusetts.

6.2.2 The applicant shall have been admitted in the foreign country for at least five years prior to applying for admission in the Commonwealth, and shall provide the court with a certificate of admission from the highest court of the foreign country.

6.2.3 The applicant shall have completed the equivalent of American high school; shall have completed work in college or university equal to that warranting a bachelor's degree in the United States; and shall have completed such legal education as, in the opinion of the Board of Bar Examiners, is equivalent to that provided in law schools approved by the American Bar Association.

6.2.4 The applicant shall have so engaged in the practice or teaching of law since the prior admission as to satisfy the Board of Bar Examiners of his or her good moral character and professional qualifications.

6.2.5 The applicant shall submit to the Board of Bar Examiners letters of recommendation from three members of the bar of the foreign jurisdiction and from two members of the bar of the Commonwealth.

6.2.6 The applicant shall have passed the Multistate Professional Responsibility Examination. Rule 6.2.6 shall become effective January 1, 1982, and shall apply to applications filed after that date.

6.3 Public Notice for Admission under Section 6. The Board of Bar Examiners, before it makes a favorable report to the court, shall publish the name or names of those applicants to be recommended under Section 6 for three successive days in such newspapers as the Board shall choose.

6.4 Report to the Court. No less than fifteen days after the first publication above described, the Board of Bar Examiners shall report to the Supreme Judicial Court the names of those applicants found qualified under Section 6.

Section 7. Bar Examiners' Rules.

7.1 The Board of Bar Examiners may, subject to the approval of the Supreme Judicial Court, make rules consistent with these rules.

Section 8. Subpoenas.

8.1 Any member of the Board of Bar Examiners may summon witnesses to appear before the Board.

3:02. ADMINISTRATION OF JUSTICE.

(1) A corporation or association shall not be represented under G. L. c. 221, § 46, by a disbarred attorney.

(2) All clerks of court, registers of probate, the recorder of the Land Court and their assistants and employees in their offices are prohibited from engaging in the practice of law during the time they hold such office or employment.

3:03. LEGAL ASSISTANCE TO THE COMMONWEALTH AND TO INDIGENT CRIMINAL DEFENDANTS, AND TO INDIGENT PARTIES IN CIVIL PROCEEDINGS.

(1) A senior law student in a law school in the Commonwealth who has successfully completed or is enrolled in a course for credit in evidence or trial practice, with the written approval by the dean of such school of his character, legal ability, and training, may appear without compensation (a) on behalf of the Commonwealth (including a subdivision of the Commonwealth or an agency of the Commonwealth or of a subdivision) in proceedings in any division of the District Court, Juvenile Court or Housing Court Departments or in the Boston Municipal Court Department, provided that the conduct of the case is under the general supervision of a member of the bar of the Commonwealth who is a regular or special assistant district attorney, a regular or special assistant attorney general, or a corporation counsel, city solicitor, town counsel, assistant municipal counsel or assistant solicitor; (b) on behalf of indigent defendants in criminal proceedings in any division of the District Court, Juvenile Court or Housing Court Departments or in the Boston Municipal Court Department, provided that the conduct of the case is under the general supervision of a member of the bar of the Commonwealth assigned by the court or employed by a nonprofit program of legal aid, legal assistance or defense or a law school clinical instruction program; and (c) on behalf of indigent parties in civil proceedings in any division of the District Court, Juvenile Court, or Housing Court Departments or in the Boston Municipal Court Department, provided that the conduct of the case is under the general supervision of a member of the bar of the Commonwealth assigned by the court or employed by a nonprofit program of legal aid, legal assistance or defense or a law school clinical instruction program.

(2) The expression "general supervision" shall not be construed to require the attendance in court of the supervising member of the bar. The term "senior student" or "senior law student" shall mean students who have completed successfully their next to the last year of law school study.

(3) The written approval described in paragraph (1), for a student or group of students, shall be filed with the clerk of the Supreme Judicial Court for the county of Suffolk and shall be in effect, unless withdrawn earlier, until the date of the first bar examination following the student's graduation, and as to a student taking that examination, until the announcement of the results thereof. For any student who passes that examination, the approval shall continue in effect until the date of his admission to the bar.

(4) A justice of the Superior Court Department may, in his discretion, permit a senior law student, qualified and supervised as provided in paragraphs (1) through (3) above, to appear without compensation on behalf of the Commonwealth or on behalf of an indigent defendant in a criminal proceeding:

(a) on a motion for a new trial in that court seeking postconviction relief after the time for direct appeal has expired, or (if such an appeal has been taken) after the appeal has been decided by the Supreme Judicial Court, or

(b) on an appeal for review of sentence in the Appellate Division of that court under G. L. c. 278, §§ 28A-28D, or

(c) on a petition heard in that court, under G. L. c. 276, § 58, as amended, for review of District Court refusal to authorize pretrial release of defendant on personal recognizance.

(5) A justice of the Superior Court, the Probate and Family Court or the Land Court Departments may, in his discretion, permit a senior law student, qualified and supervised as provided in paragraphs (1) through (3) above, to appear without compensation on behalf of the Commonwealth or indigent persons in civil proceedings.

(6) A justice of the Supreme Judicial Court or of the appeals Court may, in his discretion, permit a senior law student, qualified and supervised as provided in paragraphs (1) through (3) above, to appear in those courts without compensation on behalf of the Commonwealth or indigent persons.

(7) A senior law student, qualified and supervised as provided in paragraphs (1) through (3) above, may appear without compensation on behalf of the Commonwealth or indigent persons before any administrative agency, provided such appearance is not inconsistent with its rules.

(8) A student who has begun his next to the last year of law study in a law school in the Commonwealth, qualified and supervised as provided in paragraphs (1) through (3) above, may appear in civil proceedings under the same conditions as a senior law student, provided that the written approval referred to in paragraphs (1) and (3) states that he is currently participating in a law school clinical instruction program.

3:04. LIMITED PRACTICE BY ATTORNEYS FROM OTHER JURISDICTIONS WHO ARE ENGAGED IN CERTAIN GRADUATE LAW STUDIES OR PROGRAMS OF LEGAL ASSISTANCE.

(1) A person (a) who is enrolled in a graduate criminal law or poverty law and litigation program in an approved Massachusetts law school or who, after graduation from an approved law school, is employed by or associated with an organized nonprofit legal services program providing legal assistance to indigents in civil or criminal matters, and (b) who is a member of the bar of the highest judicial court of any State, district, or territory of the United States (or in the case of the District of Columbia, of the District Court of the United States for the District of Columbia), may engage in practice before the courts of the Commonwealth in all causes in which he is associated with such graduate program or with an organized nonprofit defender association or an organized nonprofit legal services program. Practice under this rule shall be limited to the above causes. The permission granted by this rule shall become effective upon filing with the clerk of this court for Suffolk County a certificate of any such court of another jurisdiction certifying that the attorney is a member in good standing at the bar of that court, and also (a) a statement signed by a representative of the law school that the attorney is enrolled in the specified graduate program or (b) a statement signed by a representative of the organized legal services program that the attorney is currently associated with such program. An attorney engaging in practice under this rule shall be subject to the provisions of Chapter Four of these rules, and the permission granted by this rule shall be conditioned on compliance by the attorney with the requirements of rules 4:02 and 4:03.

(2) Practice under this rule shall cease whenever that attorney ceases to be enrolled in or associated with such a program. When an attorney ceases to be so enrolled or associated, a statement to that effect shall be filed with the clerk of this court for Suffolk County by a representative of the law school or legal services program. In no event shall an attorney engage in practice under this rule for more than two years.

3:05. CONTINGENT FEES.

(1) In this rule, the term "contingent fee agreement" means an agreement, express or implied, for legal services of an attorney or attorneys (including any associated counsel), under which compensation, contingent in whole or in part upon the successful accomplishment or disposition of the subject matter of the agreement, is to be in an amount which either is fixed or is to be determined under a formula. The term "contingent fee agreement" shall not include an arrangement with a client, express or implied, that the client in any event is to pay to the attorney the reasonable value of his services and his reasonable expenses and disbursements.

(2) Unless expressly prohibited by this rule, no written contingent fee agreement shall be regarded as champertous if made in an effort in good faith reasonably to comply with this rule.

(3) No contingent fee agreement shall be made (a) in respect of the procuring of an acquittal upon or any favorable disposition of a criminal charge, (b) in respect of the procuring of a divorce, annulment of marriage or legal separation or (c) in connection with any proceeding where the method of determination of attorneys' fees is otherwise expressly provided by statute or administrative regulations. Contingent fee arrangements concerning the collection of commercial accounts and of insurance company subrogation claims made in accordance with usual practices in respect of such cases shall not be regarded as champertous, and shall not be subject to paragraphs (4) and (5).

(4) Each contingent fee agreement shall be in writing in duplicate. Each duplicate copy shall be signed both by the attorney and by each client. One signed duplicate copy shall be mailed or delivered to each client within a reasonable time after the making of the agreement. One such copy (and proof that the duplicate copy has been delivered or mailed to the client) shall be retained by the attorney for a period of three years after the completion or settlement of the litigation or the termination of the services, whichever event first occurs.

(5) Each contingent fee agreement shall contain (a) the name and mail address of each client; (b) the name and mail address of the attorney or attorneys to be retained; (c) a statement of the nature of the claim, controversy, and other matters with reference to which the services are to be performed; (d) a statement of the contingency upon which compensation is to be paid, and whether and to what extent the client is to be liable to pay compensation otherwise than from amounts collected for him by the attorney; (e) a statement that reasonable contingent compensation is to be paid for such services, which compensation is not to exceed stated maximum percentages of the amount collected; and (f) a stipulation that the client, in any event, is to be liable for expenses and disbursements.

(6) The reasonableness of a contingent fee agreement shall be subject to review by a court of competent jurisdiction prior to the expiration of one year following the making of the agreement or one year following the date of last rendition of services thereunder. The court shall determine the reasonableness of the fee fixed by any such agreement in the light of the circumstances prevailing at the time of making such agreement, including the uncertainty of the compensation and all other relevant factors. If relief is granted before the services have been completed, the court may either discharge the agreement or order its performance on modified terms, as justice may dictate. The court, in granting relief, may prescribe such terms as will compensate the attorney reasonably for services rendered and expenses incurred.

(7) The following form may be used and shall be sufficient. The authorization of this form shall not prevent the use of other forms consistent with this rule.

CONTINGENT FEE AGREEMENT. To be Executed in Duplicate.

Date: .......................... 19 .

The Client ........................................................... (Name) (Street Number) (City or Town)

retains the Attorney ................................................. (Name) (Street Number) (City or Town) to perform the legal services mentioned in par. (1) below. The attorney agrees to perform them faithfully and with due diligence.

(1) The claim, controversy, and other matters with reference to which the services are to be performed are:

(2) The contingency upon which compensation is to be paid is:

(3) The client is not to be liable to pay compensation otherwise than from amounts collected for him by the attorney, except as follows:

(4) Reasonable compensation on the foregoing contingency is to be paid by the client to the attorney, but such compensation (including that of any associated counsel) is not to exceed the following maximum percentages of the gross (net) (indicate which) amount collected. (Here insert the maximum percentages to be charged in the event of collection. These may be on a flat basis or in a descending scale in relation to amount collected.)

(5) The client is in any event to be liable to the attorney for his reasonable expenses and disbursements.

This agreement and its performance are subject to Rule 3:05 of the Supreme Judicial Court of Massachusetts.

WE HAVE EACH READ THE ABOVE AGREEMENT BEFORE SIGNING IT.

Witnesses to signatures

(To client) ........................................................ (Signature of Client)

(To attorney) ........................................................ (Signature of Attorney) (If more space is needed separate sheets may be attached and initialed.)

3:06. INCORPORATION OF ATTORNEYS UNDER G. L. c. 156A, § 17.

(1) The provisions of G. L. c. 156A shall be applicable to attorneys subject to the terms and conditions of this rule. Such terms and conditions are necessary and appropriate for the purpose of making the provisions of that chapter applicable to attorneys.

(2) In addition to other provisions required by law, the articles of organization of each professional corporation organized under G. L. c. 156A for the practice of law shall contain provisions to assure compliance with the following requirements:

(a) All shareholders of the corporation shall be persons who are duly licensed by this court to practice law in the Commonwealth of Massachusetts and are in good standing before this court and who own their shares in their own right. All shareholders shall be individuals who, except for temporary absence due to illness or accident, time spent in the Armed Services of the United States, vacations, and leaves of absence not to exceed two years, are actively engaged in the practice of law in the Commonwealth as employees of the corporation.

(b) Any shareholder who ceases to be eligible to be a shareholder and the executor, administrator or other legal representative of a deceased shareholder shall be required to dispose of his shares as soon as reasonably possible either to the corporation or to a person or persons duly licensed by this court to practice law in the Commonwealth and in good standing before this court.

(c) The name of the corporation shall, in addition to the word or abbreviation required by G. L. c. 156A, § 5, contain the full or last name of one or more individuals who are or were shareholders of the corporation or a predecessor corporation or whose names appeared in the name of a predecessor partnership or corporation. The name of the corporation may indicate family relationships between or among the individuals whose names or names are included in the name of the corporation, may include "law offices," "attorneys-at-law," or other similar terms, but shall not include other descriptive language.

(d) All shareholders of the corporation shall, by becoming shareholders, agree to the provisions of this rule, including without limitation paragraph (3) of this rule.

(e) All officers and directors of the corporation shall be shareholders.

(3) The following provisions are established with respect to the liability of the shareholders of a corporation organized pursuant to this rule with respect to damages which arise out of the performance of legal services by the corporation, such provisions to be in addition to any statutory or common law rules of general application which deal with the liability of corporations and their shareholders:

(a) Each shareholder of the corporation shall be personally liable for damages which arise out of the performance of legal services on behalf of the corporation and which are caused by his own negligent or wrongful acts, errors or omissions. Shareholders of the corporation whose acts, errors or omissions did not cause the damages shall not be personally liable therefor, whether or not they have agreed with any shareholders or employees or other persons to contribute to the payment of the liability, except to the extent provided in subparagraph (b).

(b) All the individuals who are shareholders of the corporation at the time of any negligent or wrongful act, error or omission of any employee or employees of the corporation which occurs in the performance of legal services by the corporation and which results in damages to the person or persons for whom the services were being performed shall be jointly and severally liable for such damages, but only to the extent of the excess, if any, of (1) the sum of $50,000 plus the product of $15,000 multiplied by the number of employees of the corporation at the time of such acts, errors or omissions who are duly licensed by this court to practice law in the Commonwealth of Massachusetts and who are employed by the corporation as lawyers, but not in excess of $500,000 in the aggregate; less (2) the sum of the assets of the corporation which are applied to the payment of the liability and any amounts paid by the insurers in partial payment of the liability under policies of insurance issued to the corporation.

(4) A copy of the articles of organization of any corporation organized pursuant to this rule, certified by the Secretary of the Commonwealth, shall be filed with the clerk of this court for the county of Suffolk prior to such corporation's conducting the practice of law. A copy of each amendment of the articles of organization shall be promptly filed with the clerk of this court for the county of Suffolk, certified by the Secretary of the Commonwealth. At the time of filing the original articles of organization, the corporation shall also file with said clerk a written list of the names and addresses of all shareholders of the corporation and of all persons other than shareholders who are employed by the corporation and who are authorized to practice law in the Commonwealth. Within thirty (30) days after any change in such shareholders or such employees, a revised list setting forth the information required by the preceding sentence shall be filed with said clerk. There shall also be filed with said clerk such other information as this court may from time to time prescribe.

(5) The corporation shall at all times comply with any applicable standards of professional conduct which may be established by this court. Any violation of such standards shall be grounds for this court, after hearing and if it deems the circumstances appropriate, to terminate or suspend the right of the corporation to practice law in the Commonwealth.

(6) Nothing in this rule shall be deemed to diminish or change the obligation of each attorney employed by the corporation to conduct the practice of law in accordance with generally recognized standards of professional conduct and in accordance with any specific standards which may be promulgated by this court. Any attorney who by act or omission causes the corporation to act or fail to act in a way which violates any applicable standards of professional conduct, including any provision of this rule, shall be personally responsible for such act or omission and shall be subject to discipline therefor.

(7) Nothing in this rule shall be deemed to modify, abrogate, or reduce the attorney-client privilege or any comparable privilege or relationship, whether statutory or deriving from the common law.

3:07. CANONS OF ETHICS AND DISCIPLINARY RULES REGULATING THE PRACTICE OF LAW.

(1) The practice of law by members of the Massachusetts Bar shall be regulated by the Canons of Ethics and Disciplinary Rules attached hereto and incorporated by reference herein.

(2) The Ethical Considerations as appearing in the American Bar Association Code of Professional Responsibility and Canons of Judicial Ethics (1970) are not adopted as a rule of this court, but those Ethical Considerations form a body of principles upon which the Canons of Ethics and Disciplinary Rules, as herein adopted, are to be interpreted.

The within canons and rules are based on but are not identical to the American Bar Association Code of Professional Responsibility and Canons of Judicial Ethics (1970).

(3) This rule shall take effect on October 2, 1972, and shall apply only to matters which occur on or after said date.

CANON 1

A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession.

DISCIPLINARY RULES

DR 1-101 Maintaining Integrity and Competence of the Legal Profession.

(A) A lawyer is subject to discipline if he has made a materially false statement in, or if he has deliberately failed to disclose a material fact requested in connection with, his application for admission to the bar.

(B) A lawyer shall not further the application for admission to the bar of another person known by him to be unqualified in respect to character, education, or other relevant attribute.

DR 1-102 Misconduct.

(A) A lawyer shall not:

(1) Violate a Disciplinary Rule.

(2) Circumvent a Disciplinary Rule through actions of another.

(3) Reserved for future use.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

(5) Engage in conduct that is prejudicial to the administration of justice.

(6) Engage in any other conduct that adversely reflects on his fitness to practice law.

DR 1-103 Disclosure of Information to Authorities.

(A) Reserved for future use.

(B) A lawyer possessing unprivileged knowledge or evidence concerning another lawyer or a judge shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges.

CANON 2 A Lawyer Should Assist the Legal Profession in Fulfilling Its Duty to Make Legal Counsel Available. DISCIPLINARY RULES

DR 2-101 Publicity and Advertising.

A lawyer shall not, on behalf of himself, his partner, or associate, or any other lawyer affiliated with him or his firm, knowingly use or participate in the use of any form of public communication containing a deceptive statement or claim.

DR 2-102 Professional Notice, Letterheads, Offices and Law Lists.

A lawyer or law firm shall not knowingly use or participate in the use of a professional card, professional announcement card, office sign, letterhead, telephone directory listing, law list, legal directory listing, or a similar professional notice or device which includes a deceptive statement or claim.

DR 2-103 Recommendation or Solicitation of Professional Employment.

A lawyer shall not, by direct mail or other form of personal contact, recommend employment, as a private practitioner for a fee, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer. But if success in asserting rights or defenses of his clients in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept employment from those he is permitted under applicable law to contact for the purpose of obtaining their joinder. This Disciplinary Rule does not prohibit a lawyer or his partner or associate or any other lawyer affiliated with him or his firm from requesting referrals from a lawyer referral service operated, sponsored or approved by a bar association or from cooperating with any other qualified legal assistance organization.

DR 2-104 Suggestion of Need of Legal Services.

A lawyer who has given unsolicited advice to a nonlawyer that he should obtain counsel or take legal action shall not accept employment resulting from the advice if

(1) the advice embodies or implies a deceptive statement or claim; or

(2) the advice involves the use by the lawyer of coercion, threats, or vexatious or harassing conduct.

DR 2-105 Limitation of Practice.

(A) A lawyer shall not hold himself out publicly as, or imply that he is, a recognized or certified specialist, except that a lawyer admitted to practice before the United States Patent office may use the designation "Patents,"

"Patent Attorney," or "Patent Lawyer," or any combination of those terms, on his letterhead and office sign. A lawyer engaged in the trademark practice may use the designation "Trademarks," "Trademark Attorney," or "Trademark Lawyer," or any combination of those terms, on his letterhead and office sign, and a lawyer engaged in the admiralty practice may use the description "Admiralty," "Proctor in Admiralty," or "Admiralty Lawyer," or any combination of those terms, on his letterhead and office sign.

(B) A statement, announcement, or holding out as limiting practice to a particular area or field of law or as concentrating practice to one or more particular areas or fields of law does not constitute a violation of DR 2-105 (A) if the statement, announcement, or holding out does not include a deceptive statement or claim.

DR 2-106 Fees for Legal Services.

(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.

(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence, experienced in the area of the law involved, would be left with a definite and firm conviction that the fee is substantially in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

(3) The fee customarily charged in the locality for similar legal services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by the circumstances.

(6) The nature and length of the professional relationship with the client.

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.

(8) Whether the fee is fixed or contingent.

(C) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee, except as permitted by S.J.C. Rule 3:05.

DR 2-107 Division of Fees Among Lawyers.

(A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless:

(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.

(2) Reserved for future use.

(3) The total fee of the lawyers does not exceed reasonable compensation for all legal services they rendered the client.

(B) This Disciplinary Rule does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement.

DR 2-108 Agreements Restricting the Practice of a Lawyer.

(A) A lawyer shall not be party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits.

(B) In connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that restricts his right to practice law.

DR 2-109 Acceptance of Employment.

(A) A lawyer shall not accept employment on behalf of a person if he knows or it is obvious that such person wishes to:

(1) Bring a legal action, conduct a defense, or assert a position in litigation, or otherwise have steps taken for him, merely for the purpose of harassing or maliciously injuring any person.

(2) Present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law.

DR 2-110 Withdrawal from Employment.

(A) In general.

(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.

(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.

(3) A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.

(B) Mandatory withdrawal.

A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:

(1) He knows or it is obvious that his client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously injuring any person.

(2) He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.

(3) His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively.

(4) He is discharged by his client.

If DR 2-110 (B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:

(1) His client:

(a) Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law.

(b) Personally seeks to pursue an illegal course of conduct.

(c) Insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules.

(d) By other conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively.

(e) Insists, in a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules.

(f) Deliberately disregards an agreement or obligation to the lawyer as to expenses or fees.

(2) His continued employment is likely to result in a violation of a Disciplinary Rule.

(3) His inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal.

(4) His mental or physical condition renders it difficult for him to carry out the employment effectively.

(5) His client knowingly and freely assents to termination of his employment.

(6) He believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.

CANON 3 A Lawyer Should Assist in Preventing the Unauthorized Practice of Law. DISCIPLINARY RULES

DR 3-101 Aiding Unauthorized Practice of Law.

(A) A lawyer shall not aid a non-lawyer in the unauthorized practice of law.

(B) A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

DR 3-102 Dividing Legal Fees with a Non-Lawyer.

(A) A lawyer or law firm shall not share legal fees with a non-lawyer, except that:

(1) An agreement by a lawyer with his firm, partner, or associate may provide for the payment of money, over a reasonable period of time after his death, to his estate or to one or more specified persons.

(2) A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer.

(3) A lawyer or law firm may include non-lawyer employees in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.

DR 3-103 Forming a Partnership with a Non-Lawyer.

(A) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.

CANON 4 A Lawyer Should Preserve the Confidences and Secrets of a Client. DISCIPLINARY RULES

DR 4-101 Preservation of Confidences and Secrets of a Client.

(A) "Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(B) Except when permitted under DR 4-101 (C), a lawyer shall not knowingly:

(1) Reveal a confidence or secret of his client.

(2) Use a confidence or secret of his client to the disadvantage of the client.

(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.

(C) A lawyer may reveal:

(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.

(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.

(3) The intention of his client to commit a crime and the information necessary to prevent the crime.

(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.

(D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101 (C) through an employee.

CANON 5 A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client. DISCIPLINARY RULES

DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.

(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.

(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:

(1) If the testimony will relate solely to an uncontested matter.

(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.

(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.

(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.

DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness.

(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101 (B) (1) through (4).

(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.

DR 5-103 Avoiding Acquisition of Interest in Litigation.

(A) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he is conducting for a client, except that he may:

(1) Acquire a lien granted by law to secure his fee or expenses.

(2) Contract with a client for a reasonable contingent fee in a civil case.

(B) While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to his client, except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.

DR 5-104 Limiting Business Relations with a Client.

(A) A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.

(B) Prior to conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which he acquires an interest in publication rights with respect to the subject matter of his employment or proposed employment.

DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.

(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105 (C).

(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105 (C).

(C) In the situations covered by DR 5-105 (A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.

(D) If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner or associate or any other lawyer affiliated with him or his firm may accept or continue such employment.

DR 5-106 Settling Similar Claims of Clients.

A lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of or against his clients, unless each client has consented to the settlement after being advised of the existence and nature of all the claims involved in the proposed settlement, of the total amount of the settlement, and of the participation of each person in the settlement.

DR 5-107 Avoiding Influence by Others Than the Client.

(A) Except with the consent of his client after full disclosure, a lawyer shall not:

(1) Accept compensation for his legal services from one other than his client.

(2) Accept from one other than his client anything of value related to his representation of or his employment by his client.

(B) A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.

(C) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) A non-lawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) A non-lawyer is a corporate director or officer thereof; or

(3) A non-lawyer has the right to direct or control the professional judgment of a lawyer.

CANON 6 A Lawyer Should Represent a Client Competently. DISCIPLINARY RULES

DR 6-101 Failing to Act Competently.

(A) A lawyer shall not:

(1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.

(2) Handle a legal matter without preparation adequate in the circumstances.

(3) Neglect a legal matter entrusted to him.

DR 6-102 Limiting Liability to Client.

A lawyer shall not attempt to exonerate himself from or limit his liability to his client for his personal malpractice.

CANON 7 A Lawyer Should Represent A Client Zealously Within the Bounds of the Law. DISCIPLINARY RULES

DR 7-101 Representing a Client Zealously.

(A) A lawyer shall not intentionally:

(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101 (B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.

(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.

(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102 (B).

(B) In his representation of a client, a lawyer may:

(1) Where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client.

(2) Refuse to aid or participate in conduct that he believes to be unlawful, even though there is some support for an argument that the conduct is legal.

DR 7-102 Representing a Client Within the Bounds of the Law.

(A) In his representation of a client, a lawyer shall not:

(1) File suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.

(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.

(4) Knowingly use perjured testimony or false evidence.

(5) Knowingly make a false statement of law or fact.

(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.

(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.

(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.

(B) A lawyer who receives information clearly establishing that:

(1) His client has, in the course of representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication.

(2) A person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.

DR 7-103 Performing the Duty of Public Prosecutor or Other Government Lawyer.

(A) A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause.

(B) A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.

DR 7-104 Communicating with One of Adverse Interest.

(A) During the course of his representation of a client, a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.

DR 7-105 Threatening Criminal Prosecution.

A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.

DR 7-106 Trial Conduct.

(A) A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.

(B) In presenting a matter to a tribunal, a lawyer shall disclose:

(1) Legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel.

(2) Unless privileged or irrelevant, the identities of the clients he represents and of the persons who employed him.

(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:

(1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.

(2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.

(3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.

(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.

(5) Fail to comply with known local customs of courtesy or practice of the bar on a particular tribunal without giving to opposing counsel timely notice of his intent not to comply.

(6) Engage in undignified or discourteous conduct which is degrading to a tribunal.

(7) Intentionally or habitually violate any established rule of procedure or of evidence.

DR 7-107 Trial Publicity.

(A) A lawyer participating in or associated with the investigation of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that does more than state without elaboration:

(1) Information contained in a public record.

(2) That the investigation is in progress.

(3) The general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim.

(4) A request for assistance in apprehending a suspect or assistance in other matters and the information necessary thereto.

(5) A warning to the public of any dangers.

(B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not, from the time of the filing of a complaint, information, or indictment, the issuance of an arrest warrant, or arrest until the commencement of the trial or disposition without trial, make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to:

(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused.

(2) The possibility of a plea of guilty to the offense charged or to a lesser offense.

(3) The existence of or contents of any confession, admission, or statement given by the accused or his refusal or failure to make a statement.

(4) The performance or results of any examinations or tests or the refusal or failure of the accused to submit to examinations or tests.

(5) The identity, testimony, or credibility of a prospective witness.

(6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.

(C) DR 7-107 (B) does not preclude a lawyer during such period from announcing:

(1) The name, age, residence, occupation, and family status of the accused.

(2) If the accused has not been apprehended, any information necessary to aid in his apprehension or to warn the public of any dangers he may present.

(3) A request for assistance in obtaining evidence.

(4) The identity of the victim of the crime.

(5) The fact, time, and place of arrest, resistance, pursuit, and use of weapons.

(6) The identity of investigating and arresting officers or agencies and the length of the investigation.

(7) At the time of the seizure, a description of the physical evidence seized, other than a confession, admission, or statement.

(8) The nature, substance, or text of the charge.

(9) Quotations from or references to public records of the court in the case.

(10) The scheduling or result of any step in the judicial proceedings.

(11) That the accused denies the charges made against him.

(D) During the selection of a jury or the trial of a criminal matter, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial, except that he may quote from or refer without comment to public records of the court in the case.

(E) After the completion of a trial or disposition without trial of a criminal matter and prior to the imposition of a sentence, a lawyer or law firm associated with the prosecution or defense shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by public communication and that is reasonably likely to affect the imposition of sentence.

(F) The foregoing provisions of DR 7-107 also apply to professional disciplinary proceedings and juvenile disciplinary proceedings when pertinent and consistent with other law applicable to such proceedings.

(G) A lawyer or law firm associated with a civil action shall not during its investigation or litigation make or participate in making an extrajudicial statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication and that relates to:

(1) Evidence regarding the occurrence or transaction involved.

(2) The character, credibility, or criminal record of a party, witness, or prospective witness.

(3) The performance or results of any examinations or tests or the refusal or failure of a party to submit to such.

(4) His opinion as to the merits of the claims or defenses of a party, except as required by law or administrative rule.

(5) Any other matter reasonably likely to interfere with a fair trial of the action.

(H) During the pendency of an administrative proceeding, a lawyer or law firm associated therewith shall not make or participate in making a statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication if it is made outside the official course of the proceeding and relates to:

(1) Evidence regarding the occurrence or transaction involved.

(2) The character, credibility, or criminal record of a party, witness, or prospective witness.

(3) Physical evidence or the performance or results of any examinations or tests or the refusal or failure of a party to submit to such.

(4) His opinion as to the merits of the claims, defenses, or positions of an interested person.

(5) Any other matter reasonably likely to interfere with a fair hearing.

(I) The foregoing provisions of DR 7-107 do not preclude a lawyer from replying to charges of misconduct publicly made against him or from participating in the proceedings of legislative, administrative, or other investigative bodies.

(J) A lawyer shall exercise reasonable care to prevent his employees and associates from making an extrajudicial statement that he would be prohibited from making under DR 7-107.

DR 7-108 Communication with or Investigation of Jurors.

(A) Before the trial of a case a lawyer connected therewith shall not communicate with or cause another to communicate with anyone he knows to be a member of a venire from which the jury will be selected for the trial of the case.

(B) During the trial of a case:

(1) A lawyer connected therewith shall not communicate with or cause another to communicate with any member of the jury.

(2) A lawyer who is not connected therewith shall not communicate with or cause another to communicate with a juror concerning the case.

(C) DR 7-108 (A) and (B) do not prohibit a lawyer from communicating with veniremen or jurors in the course of official proceedings.

(D) After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.

(E) A lawyer shall not conduct or cause, by financial support or otherwise, another to conduct a vexatious or harassing investigation of either a venireman or a juror.

(F) All restrictions imposed by DR 7-108 upon a lawyer also apply to communications with or investigations of members of a family of a venireman or a juror.

(G) A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror, or by another toward a venireman or a juror or a member of his family, of which the lawyer has knowledge.

DR 7-109 Contact with Witnesses.

(A) A lawyer shall not suppress any evidence that he or his client has a legal obligation to reveal or produce.

(B) A lawyer shall not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein.

(C) A lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of:

(1) Expenses reasonably incurred by a witness in attending or testifying.

(2) Reasonable compensation to a witness for his loss of time in attending or testifying.

(3) A reasonable fee for the professional services of an expert witness.

DR 7-110 Contact with Officials.

(A) A lawyer shall not give or lend any thing of value to a judge, official, or employee of a tribunal except as permitted by Section (C) (4) of Canon 5 of the Code of Judicial Conduct.

(B) In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:

(1) In the course of official proceedings in the cause.

(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.

(3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.

(4) As otherwise authorized by law.

CANON 8 A Lawyer Should Assist in Improving the Legal System. DISCIPLINARY RULES

DR 8-101 Action as a Public Official.

(A) A lawyer who holds public office shall not:

(1) Use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest.

(2) Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.

(3) Accept any thing of value from any person when the lawyer knows or it is obvious that the offer is for the purpose of influencing his action as a public official.

DR 8-102 Statements Concerning Judges and Other Adjudicatory Officers.

(A) A lawyer shall not knowingly make false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office.

(B) A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer.

CANON 9 A Lawyer Should Avoid Even the Appearance of Professional Impropriety. DISCIPLINARY RULES

DR 9-101 Avoiding Even the Appearance of Impropriety.

(A) A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.

(B) A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.

DR 9-102 Preserving Identity of Funds and Property of a Client.

(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the State in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:

(1) Funds reasonably sufficient to pay bank charges may be deposited therein.

(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.

(B) A lawyer shall:

(1) Promptly notify a client of the receipt of his funds, securities, or other properties.

(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.

(3) Maintain complete records of the handling, maintenance and disposition of all funds, securities and other properties of a client coming into the possession of the lawyer from the time of receipt to the time of final distribution; preserve such records for a period of ten years after final distribution of such funds, securities of other properties; and render appropriate accounts to the client regarding them.

(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

DEFINITIONS

"Confidence" and "secret" are defined in DR 4-101 (A).

As used in the Disciplinary Rules of the Code of Professional Responsibility:

(1) "Differing interests" include every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.

(2) "Law firm" includes a professional legal corporation.

(3) "Person" includes a corporation, an association, a trust, a partnership, and any other organization or legal entity.

(4) "Professional legal corporation" means a corporation, or an association treated as a corporation, authorized by law to practice law for profit.

(5) "State" includes the District of Columbia, Puerto Rico, and other Federal territories and possessions.

(6) "Tribunal" includes all courts and other adjudicatory bodies.

(7) "A bar association" includes a bar association of specialists as referred to in DR 2-105 (A).

(8) "Qualified legal assistance organization" means a legal aid, public defender, or military assistance office; a lawyer referral service operated, sponsored, or approved by a bar association; or a bona fide organization that recommends, furnishes or pays for legal services to its members or beneficiaries, provided the office, service, or organization receives no profit from the rendition of legal services, is not designated to procure financial benefit or legal work for a lawyer as a private practitioner, does not infringe the individual member's freedom as a client to challenge the approved counsel or to select outside counsel at the client's expense, and is not in violation of any applicable law.

3:08. DISCIPLINARY RULES APPLICABLE TO PRACTICE AS A PROSECUTOR OR AS A DEFENSE LAWYER.

The following disciplinary rules apply to the conduct of attorneys engaged in the prosecution and defense of criminal cases. They are based largely on certain portions of the American Bar Association's published "Standards Relating to The Prosecution Function [PF] and The Defense Function [DF]," Approved Draft 1971. The rules which follow regulate only such conduct of lawyers engaged in prosecution or defense activities as is designated "unprofessional conduct," that is, conduct which by these rules is made subject to disciplinary sanctions.

The following rules are not published as criteria for the judicial evaluation, to determine the validity of a conviction, of the behavior of prosecutors or of the competence of defense counsel. They may or may not be relevant in such judicial evaluation, or for other purposes, depending upon all the circumstances of a particular situation. Standards, not constituting "unprofessional conduct," found in the ABA 1971 report are not formally or officially adopted by this court for any purposes. They, however, may or may not afford, in particular cases, help and guidance to practitioners in criminal matters.

This rule shall take effect on March 1, 1979, and shall apply only to matters which occur on or after that date, except as the subject matter may be dealt with in rule 3:07 or by statute or customary law.

For reasons of completeness of statement and emphasis, certain matters discussed in rule 3:07 are also stated in the following rules.

STANDARDS RELATING TO THE PROSECUTION FUNCTION.

PF 1 RELATIONS WITH THE COURTS AND THE BAR.

It is unprofessional conduct for a prosecutor intentionally to misrepresent matters of fact or law to the court.

It is unprofessional conduct for a prosecutor to engage in unauthorized ex parte discussions with or submission of material to a judge relating to a particular case which is or may come before him. It is unprofessional conduct for a prosecutor to engage in unauthorized ex parte discussions with any Chief Justice, presiding judge, assignment judge, or person with the power of making assignment of a judge to preside over a criminal hearing, proceeding or trial for the purpose of obtaining or precluding the assignment of any particular judge to preside over a particular criminal matter. The term "unauthorized ex parte discussions" is explained in rule 3:07, DR 7-110 (B).

PF 2 PROMPT DISPOSITION OF CRIMINAL CHARGES.

It is unprofessional conduct intentionally to misrepresent facts or otherwise to mislead the court in order to obtain a continuance.

PF 3 INVESTIGATIVE FUNCTION OF PROSECUTOR.

(a) It is unprofessional conduct for a prosecutor knowingly to use illegal means to obtain evidence or information or to employ, instruct, or encourage others to use such means.

(b) A prosecutor should not discourage or obstruct communication between prospective witnesses and defense counsel. It is unprofessional conduct for the prosecutor to advise any person or cause any person to be advised to decline to give to the defense information which he has the right to give. A prosecutor may properly inform such a person that he has no duty to submit to an interview or to answer questions propounded by defense counsel, and may advise him that, if he decides to talk to counsel for the defense and does so, he (except when responding to lawful process) may impose reasonable conditions, such as those designed to ensure his own safety and the accuracy of any recording of his statements.

(c) It is unprofessional conduct for a prosecutor to secure the attendance of persons for interviews by use of any communication which as the appearance or color of a subpoena or similar judicial process unless he is authorized by law to do so.

PF 4 RELATIONS WITH PROSPECTIVE WITNESSES.

It is unprofessional conduct to compensate a witness, other than an expert, for giving testimony, but it is not improper to make payments to or for a witness for the reasonable expenses of attendance upon court, including transportation and loss of income, provided there is no attempt to conceal the fact of reimbursement or other proper payments. Payment of expenses for relocation or protection of a witness or his family, where required for the safety of one or more of them, or payment to or for the benefit of such a witness or his family for protection or support in such circumstances, shall not be deemed (unless there is other controlling evidence) compensation for the giving of testimony within the meaning of this rule. It is the intention of this rule, in those cases where the safety of a witness or of the family of a witness is involved, to require no more than revelation of the fact of such reimbursement or payment, and not to require disclosure of the details thereof.

PF 5 RELATIONS WITH EXPERT WITNESS.

It is unprofessional conduct for a prosecutor to fix the amount of the fee of an expert witness contingent upon the testimony he will give or the result in the case.

PF 6 DISCRETION IN THE CHARGING DECISION.

It is unprofessional conduct for a prosecutor to institute or cause to be instituted criminal charges when he knows that the charges are not supported by probable cause.

PF 7 DISCLOSURE OF EVIDENCE BY PROSECUTOR.

(a) It is unprofessional conduct for a prosecutor to fail to make timely disclosure to the defense of the existence of evidence, known to him, supporting the innocence of the defendant. He should, at the earliest feasible opportunity, disclose evidence which would tend to negate the guilt of the accused or mitigate the degree of the offense or reduce the punishment.

(b) It is unprofessional conduct for a prosecutor intentionally to avoid pursuit of evidence because he believes it will damage the prosecution's case or aid the accused.

PF 8 AVAILABILITY FOR PLEA DISCUSSIONS.

(a) It is unprofessional conduct for a prosecutor to engage in plea discussions directly with an accused before the accused has a reasonable opportunity to obtain counsel, or to engage in such discussions with an accused who is represented by counsel except with that counsel's approval. If the accused has elected to proceed without counsel and a form established by S.J.C. Rule 1:01A or Mass. R. Crim. P. 8 has been duly filed, the prosecutor may properly discuss disposition of the charges directly with the accused. The prosecutor would be well advised, however, to request that a lawyer be designated by the court or some appropriate central agency, such as a legal aid or defender office or bar association, to be present at such discussions.

(b) It is unprofessional conduct for a prosecutor knowingly to make false statements or representations in the course of plea discussions with defense counsel or the accused.

PF 9 FULFILMENT OF PLEA DISCUSSIONS.

It is unprofessional conduct for a prosecutor to make any promise or commitment concerning the sentence which will be imposed or concerning a suspension of sentence. He may properly advise the defense what position he will take concerning disposition.

PF 10 RELATIONS WITH JURY.

It is unprofessional conduct for the prosecutor to communicate privately with persons summoned for jury duty or empanelled as jurors concerning the case prior to or during the trial. The prosecutor should avoid the reality or appearance of any such improper communications.

A juror improperly approached by counsel or any other person should communicate the circumstances to the judge promptly. A prosecutor or a defense lawyer receiving such a report should refer the juror to the judge forthwith.

PF 11 OPENING STATEMENT.

It is unprofessional conduct for the prosecutor to allude in his opening statement to any evidence unless there is a reasonable basis for believing in good faith that such evidence will be tendered and admitted in evidence.

PF 12 PRESENTATION OF EVIDENCE.

It is unprofessional conduct for a prosecutor knowingly to offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses, or to fail to seek withdrawal thereof promptly upon discovery of its falsity.

PF 13 ARGUMENT TO THE JURY.

(a) The prosecutor may argue all reasonable inferences from the evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence.

(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

PF 14 FACTS OUTSIDE THE RECORD.

It is unprofessional conduct for the prosecutor intentionally at trial to refer to or to argue on the basis of facts outside the record. The prosecutor, on appeal, should not refer to or argue on the basis of facts outside the record. Reference may be made at trial or on appeal to matters of common public knowledge based on ordinary human experience and to matters of which the court may take judicial notice.

STANDARDS RELATING TO THE DEFENSE FUNCTION.

DF 1 INTENTIONAL MISREPRESENTATION.

It is unprofessional conduct for defense counsel intentionally to misrepresent matters of fact or law to the court.

It is unprofessional conduct for defense counsel to engage in unauthorized ex parte discussions with or submission of material to a judge relating to a particular case which is or may come before him. It is unprofessional conduct for defense counsel to engage in unauthorized ex parte discussions with any Chief Justice, presiding judge, assignment judge, or person with the power of making assignment of a judge to preside over a criminal hearing, proceeding, or trial for the purpose of obtaining or precluding the assignment of any particular judge to preside over a particular criminal matter. The term "unauthorized ex parte discussions" is explained in rule 3:07, DR 7-110 (B).

DF 2 DELAYS: PUNCTUALITY.

It is unprofessional conduct for defense counsel intentionally to misrepresent facts or otherwise to mislead the court in order to obtain a continuance.

DF 3 PROHIBITED REFERRALS.

It is unprofessional conduct for defense counsel to accept referrals from law enforcement personnel, bondsmen, or court personnel. This provision shall not be construed to forbid acceptance of referrals (1) by such persons through a bar association or through a recognized public or nonprofit defender agency, or (2) in the usual course of court business by court clerks and others (working under court supervision) pursuant to a standing list of attorneys available for appointment to represent indigent defendants, or on an isolated occasion (not amounting to a general practice) for reasonable cause shown.

DF 4 INTERVIEWING THE CLIENT.

It is unprofessional conduct for defense counsel to instruct the client or to intimate to him in any way that he should not be candid in revealing facts with the purpose of affording defense counsel free rein to take action which would be precluded by defense counsel's knowing of such facts.

DF DF 5 FEES.

(a) It is unprofessional conduct for defense counsel to imply that compensation of defense counsel is for anything other than professional services rendered by him or by others for him.

(b) It is unprofessional conduct for defense counsel to enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.

DF 6 CONFLICT OF INTEREST.

Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several codefendants, or one of several persons under investigation by law enforcement authorities for the same transaction or series of transactions, including any investigation by a grand jury, except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation. In some instances, as defined in rule 3:07 of this court, accepting or continuing employment by more than one defendant in the same criminal case will constitute unprofessional conduct.

DF 7 ADVICE AND SERVICE ON ANTICIPATED UNLAWFUL CONDUCT.

(a) It is unprofessional conduct for defense counsel to counsel his client in, or knowingly to assist his client in, conduct which defense counsel knows to be illegal or fraudulent.

(b) It is unprofessional conduct for defense counsel to agree in advance of the commission of a crime that he will serve as counsel for a defendant, except as part of a bona fide effort to determine the validity, scope, meaning, or application of the law, or where the defense is incident to a general retainer for legal services to a person or enterprise engaged in legitimate activity.

DF 8 ILLEGAL INVESTIGATION.

It is unprofessional conduct for defense counsel knowingly to use illegal means to obtain evidence or information or to employ, instruct, or encourage others to do so.

DF 9 RELATIONS WITH PROSPECTIVE WITNESSES.

(a) It is unprofessional conduct for defense counsel to compensate a witness, other than an expert, for giving testimony, but it is not improper to make payments to or for a witness for the reasonable expenses of attendance upon court, including transportation and loss of income, provided there is no attempt to conceal the fact of reimbursement or other proper payments.

(b) Defense counsel should not discourage or obstruct communication between prospective witnesses and the prosecutor. It is unprofessional conduct to advise any person, other than a client, or cause such a person to be advised, to decline to give to the prosecutor or counsel for codefendants information which he has a right to give. Defense counsel may properly inform such a person that he has no duty to submit to an interview or to answer questions propounded by the prosecutor or by such counsel, and may advise him that if he talks with the prosecutor or with counsel for a codefendant, he (except when responding to lawful process) may impose reasonable conditions, such as those designed to ensure his own safety and the accuracy of any recording of his statements.

DF 10 CONDUCT OF DISCUSSIONS.

(a) It is unprofessional conduct for defense counsel to fix the amount of the fee of an expert contingent upon the testimony he will give or the result in the case.

(b) It is unprofessional conduct for defense counsel knowingly to make false statements or representations in the course of plea discussions with the prosecutor.

(c) It is unprofessional conduct for defense counsel to seek or accept concessions favorable to one client by any agreement which is calculated to be detrimental to the legitimate interests of any other client.

DF 11 RELATIONS WITH JURY.

It is unprofessional conduct for defense counsel to communicate privately with persons summoned for jury duty or empanelled as jurors concerning the case prior to or during the trial. Defense counsel should avoid the reality or appearance of any such improper communications. As to the duty of defense counsel to whose attention is brought any improper approach to or by a juror, see PF 10.

DF 12 OPENING STATEMENT.

It is unprofessional conduct for defense counsel to allude in his opening statement to any evidence unless there is reasonable basis for believing in good faith that such evidence will be tendered and admitted in evidence.

DF 13 PRESENTATION OF EVIDENCE.

(a) It is unprofessional conduct for defense counsel knowingly to offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses, or to fail to seek withdrawal thereof promptly upon discovery of its falsity. But this paragraph does not apply to the testimony of a defendant.

(b) Defense counsel who knows that the defendant, his client, intends to testify falsely may not aid his client in constructing his false testimony, and has a duty strongly to discourage the client from testifying falsely, advising him that such a course is unlawful, will have substantial adverse consequences, and should not be followed. If defense counsel discovers this intention before accepting the representation of the client, he should not accept it; if he discovers the intention before trial, he should withdraw from employment, seeking any required permission. An application to withdraw appearance on this ground should be made ex parte to a judge other than the judge who will preside at the trial and should be heard in camera, and the record of the proceeding except for an order granting leave to withdraw should be impounded.

DF 14 ARGUMENT TO THE JURY.

(a) In the closing argument to the jury, defense counsel may argue all reasonable inferences from the evidence in the record. It is unprofessional conduct for defense counsel intentionally to misstate the evidence.

(b) It is unprofessional conduct for defense counsel to express his personal belief or opinion in his client's innocence or his personal belief or opinion in the truth or falsity of any testimony or evidence, or, unless such an inference is warranted by the evidence, to attribute the crime to another person.

DF 15 FACTS OUTSIDE THE RECORD.

It is unprofessional conduct for defense counsel intentionally at trial to refer to or to argue on the basis of facts outside the record. Defense counsel, on appeal, should not refer to or argue on the basis of facts outside the record. Reference may be made at trial or on appeal to matters of common public knowledge based on ordinary human experience and to matters of which the court can take judicial notice.

3:09. CODE OF JUDICIAL CONDUCT. CANON 1 A Judge Should Uphold the Integrity and Independence of the Judiciary.

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective without any limitation upon the Supreme Judicial Court in the exercise of its power of general superintendence, whether statutory or inherent, in areas not delineated in the Code.

CANON 2 A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities.

(A) A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(B) A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.

CANON 3 A Judge Should Perform the Duties of His Office Impartially and Diligently.

The judicial duties of a judge take precedence over all his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply:

(A) Adjudicative Responsibilities

(1) A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism.

(2) A judge should maintain order and decorum in proceedings before him.

(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity, and should require similar conduct of lawyers, and of his staff, court officials, and others subject to his direction and control.

(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law. He should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application.

(5) A judge should dispose promptly of the business of the court.

(6) A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.

(7) A judge should prohibit broadcasting, televising, recording, or taking photographs in the court room and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may permit:

(a) the broadcasting, televising, recording or photographing of investitive, ceremonial, or naturalization proceedings; and

(b) when authorized by rules of court the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, for other purposes of judicial administration, or for the preparation of materials for educational purposes.

(B) Administrative Responsibilities.

(1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.

(2) A judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him.

(3) If a judge shall become aware of unprofessional conduct by a judge or a lawyer

(a) he shall in the instance of a judge report his knowledge to the Chief Justices of this court and of the court of which the judge in question is a member, and

(b) in the instance of a lawyer, he shall initiate appropriate investigative or disciplinary measures.

(4) A judge should not make unnecessary appointments. He should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism. He should not approve compensation of appointees beyond the fair value of services rendered.

(C) Disqualification.

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) he served as a lawyer in the matter of controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial or other property interest in the subject matter in controversy or in a party to the proceeding, which interest could be substantially affected by the outcome of the proceedings;

(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding.

(2) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

(3) For the purposes of this section:

(a) the degree of relationship is calculated according to the civil law system;

(b) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian;

(c) "financial interest" means ownership of a substantial legal or equitable interest, or a relationship as director, advisor, or other active participant in the affairs of a party, except that:

(i) ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund;

(ii) an office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest" in securities held by the organization;

(iii) the proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest;

(iv) ownership of government securities or of less than one-hundredth of one per cent of the total shares issued and outstanding of any corporation or of its parent or subsidiary corporations is a "financial interest" in the issuer of such securities or its parent or subsidiaries only if the outcome of the proceeding could substantially affect the value of the securities.

(D) Remittal of Disqualification.

A judge disqualified by the terms of Canon 3 (C) (1) (c) or Canon 3 (C) (1) (d) may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If, based on such disclosure, the lawyers, after consultation with their clients independently of the judge's participation, agree in writing that the judge's relationship is immaterial or that his financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement, signed by all lawyers, shall be incorporated in the record of the proceeding.

CANON 4 A Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice.

A judge, subject to the proper performance of his judicial duties, may engage in the following quasi judicial activities, if in doing so he does not cast doubt on his capacity to decide impartially any issue that may come before him:

(A) He may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.

(B) He may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and he may otherwise consult with an executive or legislative body or official, but only on matters concerning the administration of justice.

(C) He may serve as a member, officer, or director of an organization devoted to the improvement of the law, the legal system, or the administration of justice. He may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities. He may make recommendations to public and private fund granting agencies on projects and programs concerning the law, the legal system, and the administration of justice.

CANON 5 A Judge Should Regulate His Extrajudicial Activities to Minimize the Risk of Conflict with His Judicial Duties.

(A) Avocational Activities.

A judge may write, lecture, teach, and speak on non-legal subjects, and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of his office or interfere with the performance of his judicial duties.

(B) Civic and Charitable Activities.

A judge may participate in civic and charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties. A judge may serve as an officer, director, trustee, or nonlegal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

(1) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or will be regularly engaged in adversary proceedings in any court.

(2) A judge should not solicit funds for any educational, religious, charitable, fraternal, or civil organization, or use or permit the use of the prestige of his office for that purpose, but he may be listed as an officer, director, or trustee of such an organization. He should not be a speaker or the guest of honor at an organization's fund raising events, but he may attend such events.

(3) A judge should not give investment advice to such an organization, but he may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.

(C) Financial Activities.

(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.

(2) Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity permitted by Canon 4, but should not serve as an officer, director, manager, advisor, or employee of any business.

(3) A judge should manage his investments and other financial interests to minimize the number of cases in which he is disqualified. As soon as he can do so without serious financial detriment, he should divest himself of investments and other financial interests that might require frequent disqualification.

(4) Neither a judge nor a member of his family residing in his household should accept a gift, bequest, favor, or loan from anyone except as follows:

(a) A judge may accept a gift of nominal value incident to public recognition of him; books supplied by publishers on a complimentary basis for official use; or an invitation to the judge and his spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;

(b) a judge or a member of his family residing in his household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a wedding or engagement gift; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

(c) a judge or a member of his family residing in his household may accept any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before him, and, if its value exceeds $100, the judge reports it in the same manner as he reports compensation in Canon 6 (C).

(5) For the purposes of this section "member of his family residing in his household" means any relative of a judge by blood or marriage, or a person treated by a judge as a member of his family, who resides in his household.

(6) A judge is not required by this Code to disclose his income, debts, or investments, except as provided in this Canon and Canons 3 and 6.

(7) Information acquired by a judge in his judicial capacity should not be used or disclosed by him in financial dealings or for any other purpose not related to his judicial duties.

(D) Fiduciary Activities.

A judge should not serve as the executor, administrator, trustee, guardian, or other fiduciary, except for the estate, trust, or person of a member of his family, and then only if such service will not interfere with the proper performance of his judicial duties. "Member of his family" includes a spouse, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. As a family fiduciary a judge is subject to the following restrictions:

(1) He should not serve if it is likely that as a fiduciary he will be engaged in proceedings that would ordinarily come before him, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which he serves or one under its appellate jurisdiction.

(2) While acting as a fiduciary a judge is subject to the same restrictions on financial activities that apply to him in his personal capacity.

(E) Arbitration.

A judge should not act as an arbitrator or mediator.

(F) Practice of Law.

A judge should not practice law.

(G) Extra-judicial Appointments.

A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. The foregoing is subject to any limitations imposed by the Constitution of the Commonwealth with respect to any such appointment. A judge, however, may represent his country, State, or locality on ceremonial occasions or in connection with historical, educational, and cultural activities.

CANON 6 A Judge Should Regularly File Reports of Compensation Received for Quasi Judicial and Extra Judicial Activities.

A judge may receive compensation and reimbursement of expenses for the quasi judicial and extra judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge in his judicial duties or otherwise give the appearance of impropriety, subject to the following restrictions:

(A) Compensation.

Compensation should not exceed a reasonable amount nor should it exceed what a person who is not a judge would receive for the same activity.

(B) Expense Reimbursement.

Expense reimbursement should be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by his spouse. Any payment in excess of such an amount is compensation.

(C) Public Reports.

A judge should report on or before April 15 of each year, with respect to the previous calendar year, the date, place, and nature of any activity for which he received compensation, and the name of the payor and the amount of compensation so received. Compensation or income of a spouse attributed to the judge by operation of a community property law is not extrajudicial compensation to the judge. His report should be made and should be filed as a public document in the office of the Administrative Assistant to the Supreme Judicial Court (G. L. c. 211, § 3A).

CANON 7 A Judge Should Refrain from Political Activity.

(A) Political Conduct in General.

(1) A judge should not:

(a) act as a leader or hold any office in a political organization;

(b) make speeches for a political organization or candidate or publicly endorse a candidate for public office;

(c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, for functions conducted to raise money for incumbents of or for candidates for election to any political office, or for any other type of political function.

(2) A judge should resign his office when he becomes a candidate either in a primary or in a general election for elective office.

(3) A judge may engage in activity in support or on behalf of measures to improve the law, the legal system, or the administration of justice.

Compliance with the Code of Judicial Conduct.

(A) Retired Judges.

(1) A judge whose name has been placed upon the list of retired judges eligible to perform judicial duties, pursuant to G. L. c. 32, §§ 65E-65G, should comply with all provisions of this Code of Judicial Conduct during the term of such eligibility.

(2) A judge who has retired or has resigned from judicial office should not enter an appearance in any court of the Commonwealth for a period of six months following the date of retirement, resignation or most recent service as a retired judge pursuant to G. L. c. 32, §§ 65E-65G.

Effective Date of Compliance.

The effective date of compliance of this Code is January 1, 1973.

4:01 SECTION 3 [First sentence]

Each act or omission by an attorney, individually or in concert with any other person or persons, which violates any of the Canons of Ethics and Disciplinary Rules Regulating the Practice of Law (see rule 3:07) or any of the Disciplinary Rules Applicable to Practice as a Prosecutor or as a Defense Lawyer (see rule 3:08) shall constitute misconduct and shall be grounds for appropriate discipline even if the act or omission did not occur in the course of an attorney-client relationship or in connection with proceedings in a court.