COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Student v. Marshfield Public Schools
BSEA # 22-09242
RULING ON PARENT’S MOTION TO DISQUALIFY COUNSEL FOR MARSHFIELD PUBLIC SCHOOLS
This matter comes before the Hearing Officer on Parent’s Motion to Disqualify Counsel for Marshfield Public Schools, filed on April 9, 2022. In her motion, Parent seeks to disqualify Murphy, Hesse, Toomey & Lehane (MHTL), Marshfield Public Schools’ (the District) legal counsel, from representing the District in this matter. On April 21, 2022, the District filed Marshfield’s Response to Parent’s Motion to Disqualify Marshfield’s Counsel, asserting that the Bureau of Special Education Appeals (“BSEA”) does not have jurisdiction to disqualify counsel to a party. Assuming arguendo that the BSEA does have such authority, the Parent has not set forth any plausible claim nor has any evidence been offered that would otherwise warrant disqualification of counsel.
A three-hour hearing on the Motion took place via a virtual platform on April 14, 2022. A court stenographer maintained a record of the proceedings, and the Hearing Officer audio recorded the session.[1] Parent was allowed additional time to supplement her original filing in support of this Motion. On April 25, 2022, Parent filed Parent’s Memorandum of Law in Support of Their[sic] Motion to Disqualify Counsel of Murphy, Hess[e], Toomey & Lehane (Memorandum of Law).[2]
For the reasons set forth below, the Parent’s Motion is hereby DENIED.
PROCEDURAL HISTORY AND RELEVANT FACTS
The District, represented by MHTL, and Parent have a long history at the Bureau of Special Education Appeals (BSEA). Most recently, in 2020, Hearing Officer Raymond Oliver issued a Decision in which concluded that Parent failed to meet her burden of proof to demonstrate that Student could not be educated within a program in a public school setting as proposed in Marshfield’s 2020 IEPs, or that Student required either a private day school or residential school placement to address her special education needs. He also found that the District’s proposal of placement for Student at neighboring school districts Norwell, Duxbury or Hanover was appropriate.[3] Parent appealed the matter to the United Stated District Court, District of Massachusetts.
On February 8, 2022, Judge Leo Sorokin entered summary judgment in favor of the Bureau of Special Education Appeals. He affirmed the appropriateness of the District’s 2020 IEPs, including placement at neighboring school districts which had accepted Student. Judge Sorokin addressed several additional issues. Specifically, he did not find Student was entitled to compensatory services and noted that Parent’s argument in favor of same was “flawed”, as her “statements [were] made in the form of argument, not affidavits, declarations, or cites to the records, for example, which are necessary to be considered evidence in support of a motion for summary judgment.” He also found that the Hearing Officer properly denied accelerated status because “other public school systems had agreed to accept [Student] under the January 2020 IEP.” Finally, Judge Sorokin agreed with the District that Parent’s discovery allegations against the District failed because they were neither properly preserved nor was there basis in fact for her allegations. He noted that “[e]ven assuming, without deciding, that the discovery allegations were properly preserved, [Parent] [had] not adequately shown how the allegedly withheld documents would change the Court’s conclusion that the 2020 IEPs provide[d] FAPE in the LRE. After de novo review of these documents that [Parent sought] to admit, the Court conclude[d] that they would not change the Court’s determination.” With respect to Parent’s Motion for Summary Judgment, Judge Sorokin observed that it was “flaw[ed] in that it [was] largely devoid of evidence.” [4]
A Hearing Request in the present matter was filed by Parent on April 9, 2020.[5] Parent’s request for accelerated status was denied on April 11, 2022.[6] Parent’s Refiled and/or Amended Administrative Law Due Process Hearing Request (Hearing Request), included several counts, including, but not limited to, a motion to disqualify MHTL in the instant matter. As grounds thereof, Parent argued that the District’s counsel is “a direct witness and state-actor in some of the matters relevant to this case.”
At the April 14, 2022 motion session, Parent argued that District’s Counsel “could be” a necessary witness in the instant dispute. She also asserted that MHTL should be disqualified due to prior unethical “shady” behavior, including, but not limited to, communicating with counsel for Department of Children and Families (DCF) and repeatedly encouraging DCF to file repeated 51As and a Care and Protection petition against Parent; attempting to “use” a No Trespass Order against Parent “to settle” a BSEA case; withholding educational records from production which, in turn, prevented Parent from being able to participate meaningfully in the IEP process; providing “false information” to the BSEA in prior proceedings; and going “beyond” zealous advocacy and acting as a “state-actor.” Parent points to email communications with DCF Attorney Brian Pariser in which Counsel for the District “specifically used their existing relationship … to gain strategic advantage in prosecuting [her family …. This is intimidation of a witness and extortion and obstruction of justice, and was committed for the specific purpose of circumventing [her family’s] BSEA due process rights.”[7] She further asserted that, “on advice of [C]ounsel,” the District refused to hold a team meeting with her in August of 2019, which resulted in her having to file an “emergency BSEA due process hearing request against [the District].”[8]
In addition, Parent alleged that MHTL acted without “candor to the tribunal.” MHTL “used multiple tactics to circumvent [Parent’s] accelerated due process hearing rights, while they used the intervening time period before [Parent’s] much delayed hearing in order to circumvent [her] BSEA due process rights and prejudice [Parent] at hearing or intimidate [Parent] from proceeding to hearing.”[9] In a subsequent May 2020 OCR investigation initiated by Parent, MHTL “put forward fabricated information with the intent that it be relied upon by investigating authorities and with the intent that it unduly prejudice Plaintiffs.” As grounds thereof, Parent points to “false statements” made by the Director of Special Education for the District in her interview with OCR, during which MHTL was present.[10] Parent further argued that by failing to admit Counsel’s previous “unethical” actions to the hearing officer in the instant matter, Counsel acted without “candor to the tribunal.” She also argued that disqualification was appropriate because MHTL owed a “duty of loyalty” to their other clients, Norwell and Hanover, and MHTL’s representation of the District in the present matter would be a conflict of interest for the law firm.[11]
In opposition, the District asserted that Parent’s allegations were unsupported by fact. Counsel asserted that she need not testify in the present matter as her “emails speak for themselves.” The District’s Counsel also argued that she is not the keeper of the records for the District, and that she did not produce her prior communications with DCF counsel because “there is no authority” that they are, indeed, student records. MHTL disputed that a conflict of interest exists due to their representation of Norwell and Hanover; the law firm represents many school districts, and school districts often “partner” for the benefit of a particular student. Although Counsel attended a team meeting for Student, she did so as legal counsel and not a “state-actor.” The District stressed that it has the right to choose its own counsel, and that Parent airs her grievances against counsel in the wrong forum.
In Parent’s April 25, 2022 Memorandum of Law, Parent argued, in part, that “MHTL had a duty of candor to BSEA that they failed, again, on 4/14/2022 when they argued against their disqualification without first offering complete candor to the tribunal.” Parent also reiterated that
“MPS has (1) been using obscure code names within education records since at least 2019 (first discovered by Parent 5/2021) to refer to Plaintiffs to circumvent discovery and production to Parent, (2) MHTL has been engaging in elicit phone conversations with DCF regarding Plaintiffs since at least 2019 (first discovered by Plaintiffs on 8/19/2020 after the close of evidence in the prior BSEA case), (3) MHTL has been concealing material and relevant records regarding Plaintiffs (i.e. 9/20/2019 email communications between Amanda Benard and Nancy Mullen, only first partially discovered by Plaintiffs 8/2021 and fully discovered by Plaintiffs 10/12/2021 when MPS for the first time produced an unredacted version of that email.
Hanover backdated the acceptance letter …, and in their prior BSEA Closing Brief … MHTL held the letter out as authentic to 1/22/2020. This is relevant to the 2022 case, because it brings into question (among other things) what are the available and appropriate pandemic, 2021 and/or 2022 placements in light of the newly discovered information? And further, it’s relevant to MHTL because Hanover is a client of MHTL, yet at issue is why MHTL held the letter out as authentic to 1/22/2022 when MPS and MHTL and Hanover knew the letter to backdated. These are facts issues for hearing to determine whether Hanover was an appropriate placement during the pandemic, 2021 and/or 2022. I would wish to question MHTL regarding this, [but MHTL] has a duty of loyalty to MHTL that conflicts with Hanover, where Hanover has potentially falsified documentation. This also [brings] into question what other documentation was falsified, and how many other placements it implicates for the pandemic, 2021 year and 2022 year. Again, all fact inquiries not appropriate for this instant pleading, but reason why MHTL should be disqualified.”
Parent also argued that
“[the] principle of collateral estoppel estops a bad actor from receiving the benefits of ill gotten gains and unjust enrichment.
The “unclean hands” doctrine bars relief to a party who has engaged in inequitable behavior (including fraud, deceit, unconscionability or bad faith) related to the subject matter of that party’s claim.
Although the unclean hands doctrine is typically an affirmative defense asserted by a defendant, it may also be asserted by a plaintiff in opposition to an equitable defense such as estoppel.
Plaintiffs have asserted and set forth evidence that MHTL is not acting in good faith, is not honoring their duty of candor to the tribunal, is not respecting their obligation of fairness to the opposing party.
MPS is not unduly prejudiced by disqualification of MHTL, where MPS and MHTL have long known of the misconduct and inequitable actions taken by MHTL, and taken by MPS on MHTL’s silent watch, and chosen MHTL to file a notice of representation in this matter any way. Any prejudice created by MHTL’s disqualification is one of MHTL and MPS’s own making.”
According to Parent:
“MHTL’s litigation strategy is to criminally harass pro se Plaintiff(s), obstruct the cooperative intent of the IDEA, obstruct Plaintiffs’ entitlement under the IDEA to full access to education records when some such records are potentially damaging/inculpating MHTL, MPS, or MHTL’s other client(s), to provide “advice of counsel” to their client(s) to effectuate the same, to stand by while MPS claims safe harbor citing “advice of counsel” and in MHTL being a necessary witness, creator, and/or keeper of certain of the Child’s education records, all while MHTL uses their position of Counsel to blanket claim safe harbor of “attorney client privilege” to records and to make themselves an unavailable witness, preying upon the IDEA due process timeline, the generally successful tactic of feigning ignorance to the critical distinction between Massachusetts’ “student records” and IDEA “education records”, preying upon the more informal and relatively lax nature administrative due process proceedings, prettying upon the unrepresented pro se Plaintiffs that are not on a first-name basis with the BSEA hearing officers and that don’t have a staff of attorneys and paralegals to research and draft a shell game of pleadings, run out the clock and then to obstruct Plaintiffs’ entitlement to ask this BSEA to take actions to prevent Plaintiff parent from petitioning the BSEA to protect those same rights.”
LEGAL STANDARD
1. Jurisdiction of the Bureau of Special Education Appeals
20 U.S.C. § 1415(b)(6) grants the Bureau of Special Education Appeals (BSEA) jurisdiction over timely filed complaints by a parent/guardian or a school district “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”[12] In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter[13] concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities.”[14] The BSEA “can only grant relief that is authorized by these statutes and regulations, which generally encompasses orders for changed or additional services, specific placements, additional evaluations, reimbursement for services obtained privately by parents or compensatory services.”[15]
2. Legal Standard for Ruling on Motion to Disqualify
Motions to disqualify by their nature are intensely fact specific.[16] In deciding whether disqualification of counsel is warranted, a judge must “reconcil[e] the right of a person to counsel of his choice on the one hand, and the obligation of ‘maintaining the highest standards of professional conduct and the scrupulous administration of justice,’ on the other.”[17] While “the right of a litigant to counsel of his choosing is not absolute and cannot always predominate,” motions to disqualify “must be considered in light of the principle that courts ‘should not lightly interrupt the relationship between a lawyer and [a] client.’”[18] Because granting a motion for disqualification has “immediate, severe, and often irreparable … consequences” for the party and disqualified attorney, courts have exercised extreme caution in allowing disqualification.[19] As stated in Borman v. Borman, 378 Mass. 775, 787–88, 393 N.E.2d 847, 855–56 (1979):
When disqualification occurs after employment has begun, it temporarily (and possibly permanently) disables the litigant in his effort to prosecute a claim or mount a defense. It is not surprising therefore that the code has been used increasingly as a catalog of pretrial tactics. When needless disqualification occurs as a result of these tactics, the very rules intended to prevent public disrespect for the legal profession foster a more dangerous disrespect for the legal process…. When a lawyer, exercising his best judgment, determines that his employment will not bring him into conflict with the code, disqualification may occur only if the trial court determines that his continued participation as counsel taints the legal system or the trial of the cause before it.[20]
Hence, disqualification should not be ordered “except when absolutely necessary.”[21] Because there are “severe consequences of stripping a party of chosen counsel[,]” judges are counseled to proceed with “deliberate caution” when considering requests for disqualification.[22] They are also advised to “be alert that the Canons of Ethics are not brandished for tactical advantage,” especially when claims of unethical behavior are offered as grounds for disqualification.[23]
Nevertheless, there are circumstances that require disqualification of counsel. For instance, Rule 3.7 of the Massachusetts Rules of Professional Conduct provides that disqualification is appropriate when a lawyer “is likely to be a necessary witness” in a case. Rule 3.7 further provides that a lawyer may act as a witness and an advocate where “(1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.”[24] In such cases, the court must “reconcile ‘the right of a person to counsel of his choice on the one hand, and the obligation of maintaining the highest standards of professional conduct and the scrupulous administration of justice, on the other.’”[25] The movant bears the burden to show that she “cannot support [her] claim without [the] attorney’s testimony.”[26] In addition, disqualification is “not required in every case in which counsel could give testimony on behalf of his client on other than formal or uncontested matters. We must look to whether the attorney is likely to ‘withhold crucial testimony from his client because he prefers to continue as counsel,’ to determine if the ‘continued participation as counsel taints the legal system or the trial of the cause before it.’”[27]
Similarly, Rule 1.7 prohibits an attorney from representing a client (a) “if the representation of that client will be directly adverse to another client,” or (b) “if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests[.]” The Rule further provides that continued representation nevertheless is appropriate if “(1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.” In such cases, the movant must establish that an “actual” or “genuine” conflict of interest exists such that “the independent professional judgment of trial counsel is impaired, either by his own interests, or by the interests of another client.”[28] Nevertheless, the burden is on the party moving for disqualification “to establish the need to interfere with” the attorney-client relationship.[29]
APPLICATION OF LEGAL STANDARD
The Parent moves to disqualify the District’s legal counsel based on allegations of unethical behavior, a conflict of interest on the part of Counsel, and the possibility of the District’s attorney being called as a witness in the present matter. Because the District enjoys the right to the counsel of its choice, the burden rests with Parent to establish the need to interfere with this relationship. [30] Parent has not met her burden. My reasoning follows.
In determining whether it is necessary to disqualify legal counsel, I must analyze the particular facts of the case at hand.[31] Because the attorney-client relationship “should not lightly”[32] be disrupted, I exercise “extreme caution”[33] in assessing the merits of Parent’s Motion.[34]
With the above legal principles in mind, I turn to the instant matter.
Parent argues that Counsel should be disqualified pursuant to Rule 3.7 of the Massachusetts Rules of Professional Conduct. Parent asserts that Counsel “could be” a necessary witness as she was responsible for communicating with counsel for DCF and encouraging DCF to file repeated 51As and a Care and Protection petition against Parent; attempting to “use” a No Trespass Order against Parent “to settle” a BSEA case; withholding educational records from production which, in turn, prevented Parent from being able to meaningfully participate in the IEP process; providing “false information” to the BSEA in prior proceedings; and acting as a “state-actor.” However, I am neither convinced of the importance of Counsel’s testimony in the present matter nor has Parent demonstrated that information arising from Counsel’s testimony could not be derived from another source. To the contrary, Parent presented as evidence several emails authored by Counsel which could offer similar evidence to that which could be elicited through Counsel’s testimony. In addition, Parent has failed to demonstrate that without Counsel’s testimony, Parent would be handicapped in presenting her claims.
Parent also contends that the District’s attorney has engaged in unethical behavior. She alleges lack of “candor to the tribunal” and a “conflict of interest” resulting from MHTL’s legal representation of other school districts, including Norwell and Hanover. Because courts have warned that disqualification motions may be rooted in strategic, legal “tactics,” in order for me to allow Parent’s Motion, I must determine that the “continued participation [of MHTL] as counsel taints the legal system or the trial of the cause before it.”[35] Here, I cannot make such a finding. First, the BSEA has no authority to review the professional conduct of attorneys who appear in this forum.[36] Specifically, in Massachusetts, it is the responsibility of the Board of Bar Overseers and the Office of the Bar Counsel to ensure that the Rules of Professional Conduct are followed.[37] Even if I had the authority to oversee Counsel’s conduct and were to rely solely on her professional behavior in the current proceeding, I could not find, as Parent suggests, that Counsel has failed to act with “candor to the tribunal.”[38] Based on the information presented by Parent and the limited interactions of the parties to date in the present matter, I am unable to conclude that Counsel has acted in a manner that “undermine[s] the legitimacy of the judicial processes”[39] or which any objective, responsible attorney would describe as anything other than zealous advocacy.[40]
Parent has not met her burden to establish that disqualification of the District’s legal counsel is necessary or appropriate.
ORDER
Parent’s Motion to Disqualify Counsel for Marshfield Public Schools is DENIED.
So ordered,
By the Hearing Officer,
________________________________________
Alina Kantor Nir
Date: April 26, 2022
[1] Per Parent’s request, the motion hearing was open to the public. However, due to repeated disruptions by public attendees, the Hearing Officer, following numerous warnings, terminated the open session after one hour. The Hearing Officer immediately reconvened a closed motion session which included the court stenographer, the Hearing Officer, the District’s legal counsel, an MHTL staff attorney, the District’s Director of Special Education, Parent, and approximately 8 additional participants invited by Parent with permission from the Hearing Officer.
[2] In her filing, Parent makes several arguments unrelated to the issue before the Hearing Officer in this Ruling. The Hearing Officer declines to rule on any issue other than the issue of disqualification at this time.
[3] See Ruth v. Marshfield Public Schools, BSEA #2005814 (Oliver 2020).
[4] C.F. v. Amy Scolaro, Civil No. 20-12259-LTS (D. Mass. 2022).
[5] Parent’s original request for hearing was amended and refiled on same date.
[6] A motion on this issue is pending before the Hearing Officer.
[7] Email from Parent to the Hearing Officer and counsel for the District dated April 11, 2022.
[8] Id.
[9] Id.
[10] Id.
[11] With Parent’s consent, in January 2020, the District had sent referral packets to the following neighboring school districts: Cohasset, Norwell, Pembroke, Scituate, Duxbury, Hanover and Hingham Public Schools. Ruth was accepted at Hanover on January 22, 2020; at Norwell on January 23, 2020; and at Duxbury on January 24, 2020, all pending Parent’s acceptance. See In re: Ruth v. Marshfield Public Schools, BSEA # 20-05814 (Oliver, 2020).
[12] See 34 C.F.R. §300.507(a)(1).
[13] Limited exceptions not relevant here exist.
[14] 603 CMR 28.08(3)(a).
[15] In Re: Georgetown Public School, BSEA #1405352, 20 MSER 200 (Berman, 2014).
[16] See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981); Coke v. Equity Residential Properties Trust, 440 Mass. 511, 516, 800 N.E.2d 280 (2003); Slade v. Ormsby, 69 Mass. App. Ct. 542, 546, 872 N.E.2d 223, 226 (2007).
[17] Slade, 69 Mass. App. Ct. at 545–46 (internal citations omitted).
[18] G.D. Mathews & Sons Corp. v. MSN Corp., 54 Mass.App.Ct. 18, 20, 763 N.E.2d 93 (2002), quoting from Adoption of Erica, 426 Mass. 55, 58, 686 N.E.2d 967 (1997); see also Slade, 69 Mass. App. Ct. at 546.
[19] See, e.g., Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 719 (1982); Borman v. Borman, 378 Mass. 775, 787–88, 393 N.E.2d 847, 855–56 (1979).
[20] Borman, 378 Mass. at 787–88 (internal citations omitted).
[21] Slade, 69 Mass. App. Ct. at 546; Masiello v. Perini Corp., 394 Mass. 842, 850 (1985).
[22] Smaland Beach Ass’n, Inc. v. Genova, 461 Mass. 214, 220, 959 N.E.2d 955, 962-63 (2012).
[23] See Serody v. Serody, 19 Mass. App. Ct. 411, 414 (1985).
[24] Rule 3.7(a).
[25] Smaland Beach Ass’n, Inc., 461 Mass. at 220.
[26] Byrnes v. Jamitkowski, 29 Mass. App. Ct. 107, 110, 557 N.E.2d 79, 81 (1990).
[27] Id. at 109–10 (internal citations omitted).
[28] Commonwealth v. Perkins, 450 Mass. 834, 852, 883 N.E.2d 230, 246 (2008) (quotations omitted).
[29] Byrnes, 29 Mass. App. Ct. at 110.
[30] See Id.
[31] See Firestone Tire, 449 U.S. at 377.
[32] G.D. Mathews & Sons Corp., 54 Mass.App.Ct. at 20.
[33] See, e.g., Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 719 (1982); Borman, 378 Mass. at 787–88.
[34] Parent argues that “MPS [would not be] unduly prejudiced by disqualification of MHTL.” Nevertheless, lack of prejudice from disqualification is not the legal standard on which the Hearing Officer must rely when ruling on a motion to disqualify legal counsel.
[35] Borman, 378 Mass. at 787–88 (internal citations omitted).
[36] Parent also argued that “Plaintiffs have provided evidence that indicates that MHTL engaged in a campaign to harass and intimidate a disabled student and her disability-advocate and to falsify information, or produce information that is known to be fabricated, with the intent that it be relied upon, is indisputably fraud.” However, nothing in the pertinent federal or Massachusetts laws and regulations grants the BSEA authority to hear matters concerning allegations of fraud perpetuated by opposing legal counsel. See, e.g., In Re: Student v. Maple School District, BSEA # 12-7653 (Figueroa, 2013); In Re: Student v. Dennis Yarmouth Regional School District, BSEA # 16-07923 (Figueroa, 2016).
[37] I take administrative notice of the role of the Board of Bar Overseers and the Office of the Bar Counsel.
[38] In her Memorandum of Law, Parent also argued for “vicarious disqualification” , asserting that “MHTL represents 2 of the 3 municipal entities (Hanover and Norwell) to whom its client, MPS, has suggested the Child should be placed in their out-of-district public high schools, and after-discovered evidence reflects that (a) MPS’s interests are in conflict with those out-of-district public entities, (b) at least one of those two entities (Hanover) potentially committed fraud in relation to the underlying matter, (c) it is reasonable to impute contemporaneous knowledge of such misconduct to MHTL.” Parent failed to complete the fourth reason in her argument, as her sentence was incomplete: “(d) that cli.” (Memorandum of Law) As such, the Hearing Officer could not decipher the fourth rationale offered by Parent. Parent relies on DR5-105 of the ABA Committee on Ethics and Professional Responsibility in arguing for “vicarious” or imputed, disqualification
Rule 1.10 of the Massachusetts Rule of Professional Conduct states, in part, that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), or 1.9 and that when a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, except under specific circumstances. Again, the Hearing Officer has no authority to review the professional conduct of attorneys who appear before her.
[39] See, e.g., In re Discipline of Att’y, 442 Mass. 660, 668, 815 N.E.2d 1072, 1079 (2004) (conduct by attorney must be “so ‘egregious’ and ‘flagrantly violative of accepted professional norms’ as to ‘undermine the legitimacy of the judicial process’”).
[40] See, e.g., id. at 670, citing Sussman v. Commonwealth, 374 Mass. 692, 696, 374 N.E.2d 1195 (1978) (“[W]e must balance the … obligation to protect the processes of orderly trial with the attorney’s obligation zealously to protect the client’s interest. In determining whether [punishment] is justified, we must give due weight to the importance of vigorous advocacy. To do otherwise would chill the less courageous attorney in his efforts to represent his client effectively”).