Juvenile Justice Through Diversion

A couple of weeks ago, we were pleased to report on our Juvenile Restorative Justice Symposium, a half-day program focused on restorative justice approaches for young offenders.  Restorative justice represents a paradigm shift in understanding and approaching justice.  It shifts the focus onto the needs of the injured party rather than a sort of generalized societal need to carry out a punishment. Central to the restorative justice system is the so-called “circle” approach (this video includes more information on the circle process), whereby the impacted individuals sit in a circle to have a dialogue mediated by a trained facilitator.

Today, we are excited to report on our latest program, a July 19 forum on diversion and evidence-based approaches to juvenile justice, hosted by the BBA’s Civil Rights and Civil Liberties Section along with Citizens for Juvenile Justice.  Diverting juveniles is the practice of referring them to various programs that hold them accountable without having the go through the traditional justice system.  The restorative justice approach explained in our prior post is one example of a diversion approach.  The goal is to hold youths accountable without creating a criminal record.

This is especially important in Massachusetts, which does not permit record expungement.  The day before our program, the Boston Globe posted an informative article on this very issue, explaining the challenges individuals with juvenile records can face for many years after their cases are resolved in the justice system.  On July 12, the Senate supported a bill (S2424) by a vote of 31-9 that would, among other reforms, permit expungement of misdemeanor offenses from juvenile records.

Regardless of whether the bill is enacted, the take-away from our forum was clear – diversion, when executed correctly, can be more effective at achieving justice, promoting rehabilitation, and reducing recidivism than traditional justice systems.  The fact that it avoids creation of a record that can hinder a young people for the rest of their lives is only an added benefit.

DSC_0083 croppedSana Fadel Delivers Opening Remarks

Massachusetts is making progress on diversion, but the presenters made clear that there is still a long way to go.  At this point, Sana Fadel, Deputy Director of Citizens for Juvenile Justice, who’s Executive Director Naoka Carey provided closing remarks, explained that diversion programs are established ad hoc and vary by county.  As a result, we have instances of “justice by geography,” in the words of First Justice of the Middlesex Juvenile Court, Jay Blitzman, whereby geography plays a disproportionate role in determining juvenile justice outcomes (check out his July 20 editorial on juvenile record expungement from Commonwealth Magazine).  This also hinders the collection of clear data on effectiveness and outcomes.  Yet while uniformity is still a goal, Fadel reported that things seem to be moving in the right direction, in large part thanks to support from the District Attorneys who have implemented diversion programs in 10 of 11 jurisdictions.

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Judge Blitzman

One of the key points made by multiple panelists was the need for individualized and graduated responses in diversion.  While diversion done well has repeatedly resulted in positive outcomes, diversion done poorly can have the opposite effect.  The key is to require the appropriate level of engagement for the youthful offender.  Too little and the point doesn’t get across, too much and the diversion program can stifle a youth’s positive connections outside the justice system and build resistance and resentment.  However, with the proper amount of diversion programming, youths exhibit a remarkable tendency to learn from their mistakes, make victims whole again, and avoid future criminal behavior.

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Panelists (left to right): Kara Hayes, Vincent Schiraldi, and Judge Blitzman

Vincent Schiraldi, Senior Research Fellow at the Harvard Kennedy School’s Program in Criminal Justice, spoke about how he worked to increase diversion as New York City’s commissioner of probation.  Through collaboration with the probation department, schools, courts, police, and even big box stores, the leaders of which he convinced to not prosecute all juvenile shoplifters, he was able to divert 41% of juvenile cases, an increase of more than 15%.  A large part of his success appeared to be driven by his tireless efforts toward bringing the community together to embrace diversion as a reasonable justice system alternative and also by tracking and regularly reporting data demonstrating the effectiveness of his work.

Massachusetts is still far from these levels of diversion, but panelists made clear that it is increasingly being accepted as a reasonable alternative to traditional justice.  Kara Hayes, Chief of Community Engagement at the Suffolk County District Attorney’s Office, reported that 25% of juveniles in Suffolk County are currently diverted before being arraigned.  This seems to place us in a similar position as New York City prior to Vincent’s arrival, and the stars appear to be aligning for further increases.  As Kara explained, diversion programs are also beneficial to victims, who often gain more satisfaction and closure than through the justice system, which can be impersonal and leave them feeling cast aside.  As a result, the Suffolk County District Attorney’s office is starting a pilot diversion program in the county that it hopes to have up and running by the start of the school year.  The pilot will include a dedicated program coordinator whose goal is to continue the thoughtful and strategic expansion of diversion to best fulfill the needs of the community.

We are devoted to continuing to provide thought provoking and timely programs and discussions on these sorts of developing areas of justice.  We hope program attendees left feeling informed and empowered to make an impact and we look forward to keeping you apprised of the latest developments in juvenile justice practice.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Celebrating Enactment of the Transgender Rights Bill

We’re thrilled that last Friday Governor Charlie Baker signed the Transgender Rights Bill (S2407) into law.  Massachusetts joins 17 other states and the District of Columbia, along with more than 200 cities and counties, explicitly prohibiting discrimination based on gender identity.  Here is a brief breakdown of the various provisions of the bill:

  • Section 1 prohibits public accommodation discrimination for gender identity.
  • Section 2 requires proprietors of public accommodations segregated by sex to provide the accommodation consistent with individuals’ gender identity.
  • Section 3 adds gender identity to the list of actionable public accommodation transgressions, making discrimination punishable by a fine of up to $2,500 and/or imprisonment up to 1 year and potentially liable for additional damages for the victim.
  • Section 4 calls on the Massachusetts Commission Against Discrimination (MCAD) and the Attorney General’s Office to make rules and regulations by September 1, 2016, that effectuate the purposes of the act, including defining when and how gender identity may be evidenced and guidance for legal action against any person who asserts gender identity for an improper purpose.

The new law will be phased in, with Sections 1 and 4 taking effect immediately and Sections 2 and 3 taking effect on October 1, 2016.

This compromise version of the bill emerged from a legislative conference committee on July 6.  The committee was chaired by the Judiciary Committee Co-Chairs, Senator William Brownsberger and Representative John Fernandes, and included Senators Sonia Chang-Diaz and Bruce Tarr and Representatives Sarah Peake and Sheila Harrington.  They were tasked with amalgamating the House (H4343) and Senate (S735) versions of the bill, which had different effective dates (Senate: immediately, House: January 1, 2017).  Furthermore, the House version included language similar to the current Section 4, requiring the MCAD and Attorney General to consider rules for enforcement and misuse, that was not in the Senate version.  The Senate passed its version by a vote of 33-4 on May 12.  The House passed its version, 116-36, on June 1.

The law was passed despite some opposition centered on the use of bathrooms, which had previously had an impact in 2011, when public accommodations protections were removed from a broad transgender-rights bill before it passed that year.  The BBA supported that law (read our testimony here), which was enacted without the public-accommodations piece, taking effect on July 1, 2012.

Even without public accommodation protections, that bill took important steps forward, giving transgender people clear legal recourse if they face discrimination at work, in public housing, education, or when applying for credit.  At the time, Massachusetts became the 16th state to add gender identity to its non-discrimination laws in these areas.  It also added gender identity to the Massachusetts hate crime statutes.

We weighed in shortly afterwards, holding a number of programs on the impacts of the new law and publishing an article in the Boston Bar Journal highlighting ways lawyers could try to combat public accommodation discrimination for transgender victims, even without explicit legal protection.  We are pleased that, finally, lawyers representing transgender discrimination victims will no longer have to face the challenges and uncertainty highlighted in that article.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Budget Update

On July 8, the Governor signed the budget amid news that the Commonwealth faces a nearly $1 billion budget deficit.  Despite vetoing $256 million from the Legislature’s conference committee budget (H4450), the Governor maintained a $1 million increase for civil legal aid funding and highlighted the increase in his budget message.

From here, the budget returns to the Legislature, which can override the Governor’s vetoes with a two-thirds vote in each branch.  The House votes first, followed by the Senate. Here is a breakdown of where things currently stand (updated to reflect the Governor’s final budget):

Massachusetts Legal Assistance Corporation (MLAC)

  • Request: $27,000,000
  • Governor’s Budget: $17,170,000
  • House Ways and Means Budget: $18,000,000
  • House Final Budget: $18,500,000 ($500,000 added through a floor amendment)
  • Senate Ways and Means Budget: $17,000,000
  • Senate Final: $18,000,000 ($1,000,000 added through a floor amendment)
  • Conference Committee Final: $18,000,000
  • Governor Final: $18,000,000

We are thrilled that the Governor included an extra $1 million in funding for legal services over last year’s figure.  Given the extremely challenging budget situation, this increase is truly remarkable and demonstrates a clear commitment from legislators to assist those in need of civil legal aid.  It also continues to show the message of our BBA Task Force to Expand Civil Legal Aid in Massachusetts—that MLAC funding produces a positive return on investment by preventing “back-end” costs—has gotten through.

Trial Court

  • Request: $654,374,856 + Modules for additional initiatives
  • Governor’s Budget: $638,606,000
  • House Ways and Means Budget: $639,900,000 (including Specialty Courts module)
  • House Final Budget: $639,900,000 (including Specialty Courts module)
  • Senate Ways and Means Budget: $643,484,303
  • Senate Final Budget: $643,484,303
  • Conference Committee Final: $639,762,683
  • Governor Final: $632,969,055

It is unfortunate that this number was not higher, but we nevertheless appreciate that this funding amount is a slight increase over last year’s appropriation of $631.5 million.  In order for the courts to continue to provide the highest level of justice for the people of Massachusetts, they need adequate funding.  Underfunding of the courts will present a number of challenges, from infrastructure problems (many court houses need significant repairs and updates as well as security updates) to stifling innovations such as the Specialty Courts program, which addresses the issues underlying criminal behavior and produces great outcomes by reducing recidivism.

Statewide Housing Court Expansion

  • Request: $2,400,000
  • Governor’s Budget: $1,000,000
  • House Ways and Means Budget: $0
  • House Final Budget: $0
  • Senate Ways and Means Budget: $1,194,614
  • Senate Final Budget: $1,194,614
  • Conference Committee Final: $0
  • Governor Final: $0

The BBA has been advocating for the statewide expansion of Housing Court for the last year. Housing Court has statutory jurisdiction over civil and criminal cases that involve the health, safety, or welfare of the occupants or owners of residential housing, as well as code enforcement cases. One of its greatest strengths is that its judges are experienced in these issues and best able to address the complexities and nuances of each case.

The total cost to the state for the expansion is estimated to be roughly $2.4 million per year.  The Governor’s budget proposal included $1 million for Specialty Court, enough to get it started and operational for the last 6 months of FY17, but the House did not follow his lead, leaving this measure out of its budget entirely.  The Senate provided similar language and funding to the Governor’s proposal, but disappointingly, the Conference Committee did not.  We hope this measure will resurface at a later stage in this year’s session, even if only in the form of legislative language authorizing the expansion (but with no money attached).

We look forward to keeping you updated on the latest budget developments and, as always, urge you to make your voice heard at the State House.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Criminal Justice Reform through Juvenile Restorative Justice

It was quite a week here at the Boston Bar Association and we’ve got you covered here in case you missed any of the action.  First is a write-up from our Juvenile Restorative Justice Symposium, a half day program developed by the BBA’s 2015-16 Public Interest Leadership Program (PILP).  Further below is a breakdown of our Benefits of Judicial Diversity program followed by an explanation of a recent Appeals Court decision on reopening settlement agreements in divorce cases.

PILP assembles an annual class of young attorneys with interest in civic engagement and public service who are looking to embrace the leadership role of lawyers in service to their community, their profession, and the Commonwealth.  PILP participants connect with prominent community leaders at meetings and events, learn about the challenges confronting local organizations and take part in efforts to address specific community needs.  After completing the 14-month program, graduates enter a growing network of accomplished alumni who provide mentoring and support to their successors.

This year’s PILP class took an interest in restorative justice, a model used as an approach to criminal justice and community harm that emphasizes repairing the damage done by a criminal event as opposed to just handing down a punishment.  It is a collaborative decision-making process that brings together the offenders, victims, and other affected community members.  It seeks to hold offenders accountable by acknowledging and taking responsibility for their offenses.  Studies have shown that recidivism rates are significantly reduced for participants in restorative justice programs, and the costs are far lower than traditional court processes such as prosecution and incarceration.

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Erin Freeborn

The symposium began with an introduction by Erin Freeborn, Executive Director of Communities for Restorative Justice (C4RJ).  She explained the four principles of restorative justice, a process that has existed in some form or another since the dawn of human society.  They are:

  1. Voluntary participation
  2. Crime, meaning a violation of people and relationships creating a harm that needs to be rectified.
  3. Inclusion and empowerment of those most affected. Part of the process is to find out how to rectify the situation, sometimes with information (an explanation for why the crime was committed) and/or sometimes with material needs.
  4. An understanding that the harm cannot be undone, but that all parties will strive to make things as right as possible to try to put the situation back into balance and collaboratively restore order.

Restorative justice represents a paradigm shift in understanding and approaching justice.  It shifts the focus onto the needs of the injured party rather than a sort of generalized societal need to carry out a punishment for the offender.

Traditional ApproachRestorative Justice Approach
What law was broken?  How will the offender be charged?Who has been hurt?
Who did it?What are the victim’s needs?
What should we do to them?  What will be their punishment/sentence?Who is obligated to meet those needs and how can they do so?

Central to the restorative justice system is the so-called “circle” approach (this video includes more information on the circle process), whereby the impacted individuals sit in a circle to have a dialogue mediated by a trained facilitator who sets their expectations and lays the ground rules:

  • Everyone takes turns talking and has their chance to speak without interruption.
  • There is no hierarchy, so the facilitator or judge, the victim, and the accused individual are all on equal footing.
  • The circle can include supporters of each party, so in the juvenile context this may mean family members or friends of the offender, as well as the victim.
  • Everyone must take part voluntarily and can pull out at any time and insist on the traditional justice methods.
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Panelists discussing juvenile restorative justice

An extensive panel discussion followed with an examination of current applications of juvenile restorative justice in the Commonwealth.  It was moderated by Northeastern University School of Law Professor Susan Maze-Rothstein and featured five leaders in the restorative and criminal justice field:

The panelists began by considering the appropriateness and effectiveness of restorative justice.  There seemed to be consensus that restorative justice can and often does work better than traditional methods, and that once arraignment takes place and juveniles are given a record, their lives are forever changed, so it is especially important to consider carefully what happens before that step.  Furthermore, restorative justice can serve as a means of reconsidering juvenile justice generally and the need to discuss and change behaviors for youths.  As Commissioner Dolan explained, the traditional response was to simply remove youthful offenders from their situation and hold them in detention for a certain amount of time without providing any help to resolve the incident or underlying issues.  Now, thanks at least in part to the ideas underlying restorative justice, there is a far greater focus on intervening with a holistic approach to solve problems – both to restore balance from the incident leading to the detention and also to resolve underlying issues that prompted the behavior.

While the panelists spoke of their positive experiences with juvenile restorative justice in Massachusetts, they also repeatedly spoke of New Zealand, an international leader in restorative justice, which passed legislation to completely overhaul its juvenile criminal justice system in order to focus its time and resources on restorative justice practices.  As Ziyad Hopkins explained from his own research there, the New Zealand law requires that juvenile offenders take part in a restorative justice program before they can possibly enter the court system, and often provides a means for them to avoid the traditional justice system altogether.  As a result, the number of cases in juvenile court dropped by 80% and juvenile arrest rates did as well.

However, best restorative justice practices are still being developed in Massachusetts.  Panelists discussed the importance of protecting confidentiality in restorative justice discussions, especially should the case end up utilizing traditional justice processes.  Potential misuse of restorative justice discussions to fish for evidence would undermine the entire process.  There were also concerns about whether offenders in restorative justice proceedings need representation by an attorney.  On one hand, legal representation ensures that accused juveniles understand the process and that their rights are protected.  As one panelist put it, all diversion programs inherently implicate a certain level of coercion, and thus it is of the utmost importance that a juvenile and their family have someone to explain the process, options, and minutiae to them.  Furthermore, juveniles have underdeveloped verbal and processing skills and the restorative justice process can be intimidating – an attorney assures the offender’s voice is heard.  On the other hand, it starts to make restorative justice proceedings more similar to traditional justice and may stifle the free and willing exchange of ideas these procedures require in order to be effective.

Currently, restorative justice programs vary greatly by location within the Commonwealth.  They have been implemented piecemeal in certain communities and are yet to catch on in others.  The hope seems to be that they will continue to spread on a grassroots level as more communities recognize their value and importance and that eventually legislation may provide for a uniform and adequately funded statewide system.  There currently is legislation pending (S71/H368, An Act promoting restorative justice practices), which panelists supported, though they noted that it stops short of requiring restorative justice proceedings.

The keynote speaker, First Justice of the Middlesex County Juvenile Court Jay Blitzman, has been a pioneer in the restorative justice field.  He told how his views shifted on restorative justice.  When he first heard of the idea as a “hard-charging defense attorney” he was appalled, feeling like youths were giving up their right to have an attorney stand up for their interests.  It was not until he took part in the “circle” process that he realized that in many ways restorative justice was a richer way for young people to be heard.  He found that taking part in the circle made him a more reflective listener, less judgmental, and better able to facilitate traditional justice proceedings.

He noted the importance of engaging youths through restorative justice.  The circle process gives them a voice, balancing accountability with support.  It assists the community both by solving the problem(s) at hand and by bringing the involved individuals more into the community by encouraging them to take responsibility for their actions, devise a solution, and avoid creating a record.  Justice Blitzman described a common scenario in which a juvenile is involved in a domestic violence case against a family member – typically, a parent or sibling.  These cases rarely go to trial, and are often dismissed, but once the juvenile is arraigned, they have a record which can have many negative consequences for their ability to return to their community, such as limits on housing and jobs.  He suggested that an expungement bill currently before the legislature (S64) could fix part of the problem, but noted that the better solution was to avoid creating the record in the first place through restorative justice proceedings.

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Senator Jamie Eldridge

Senator Jamie Eldridge, a legislative leader on criminal justice issues and Co-Chair of the Harm Reduction and Drug Law Reform Caucus, led a lunch discussion on the future of restorative justice in Massachusetts.  He described the aforementioned bills and their status in the Legislature.  As the sponsor of restorative justice legislation himself, he was hopeful that they might move this session and encouraged attendees to reach out to their legislators to voice their support.  However, he was frank that they faced uphill battles to pass in the final month of this legislative session.  He was optimistic that restorative justice measures might be included in a more comprehensive criminal justice overhaul that he predicted would come next legislative session following the full report of the Council of State Governments, which is conducting an in-depth review of the current criminal justice picture in Massachusetts at the request of Governor Charlie Baker, Speaker of the House Robert DeLeo, Senate President Stanley Rosenberg, and Supreme Judicial Court Chief Justice Ralph Gants.

In all, the symposium was a huge success.  The discussion was lively and informative and we are proud to be at the forefront of considering this issue.  We will, as always, keep you posted on what happens with the relevant legislation this session and look forward to reporting on forthcoming criminal justice reforms.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Discussing the Benefits of Judicial Diversity

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BBA Civil Rights and Civil Liberties Section Co-Chair Rahsaan Hall moderating the panel discussion.

On June 27, we were pleased to host another important discussion at the BBA, this one on The Benefits of Judicial Diversity.  It featured a panel of esteemed individuals including:

  • Roderick L. Ireland, Chief Justice (Ret.) of the Supreme Judicial Court and Distinguished Professor, School of Criminology and Criminal Justice, Northeastern University
  • Angela M. Ordoñez, Chief Justice of the Massachusetts Probate and Family Court
  • Andrea C. Kramer, former Chief of the Civil Rights Division, Massachusetts Attorney General’s Office
  • Lon F. Povich, Chief Legal Counsel, Office of the Governor of Massachusetts

The panel was moderated by Rahsaan D. Hall, of the ACLU and Co-Chair of the BBA’s Civil Rights and Civil Liberties Section.

While the idea of judicial diversity is widely lauded, it is important to consider the factual reasons and underlying statistical support for its importance.  Judicial diversity is absolutely necessary for two major reasons – 1) it serves as a descriptive or symbolic representation of society at large, increasing public confidence in the judiciary; and 2) it serves as substantive representation, whereby a judiciary with more diverse judges assures diversity in perspective, experience, and empathy, potentially leading to more fair outcomes.  Related to this latter point, implicit bias, the idea that judges (and everyone else, for that matter) experience subtle cognitive processes that result in biases in judgment or behavior, has been a hot topic recently.  While the courts are taking steps, including trainings and a bench card with strategies for judges to recognize and overcome these biases as much as they can be eliminated, the argument goes that on a more diverse bench, the competing implicit biases will cancel each other out in order to achieve systemic fairness.

Statistics clearly show the importance of diversity on the bench, especially in certain areas of law.  For example, employment discrimination cases with an African American judge are more than two times more likely to result in a finding of racial harassment than those with only white judges.

judicial diversity slide 1

Similarly, in voting rights cases, having an African American judge on the panel increases the likelihood of finding a civil rights violation by 18%.

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For affirmative action cases before the U.S. Courts of Appeals, the panel is almost twice as likely to vote in favor of affirmative action if it contains at least one African-American judge.

jud diversity slide - appeals court affirmative action cases

In criminal sentencing, the greater the percentage of female judges on a district’s bench, the smaller the gender disparity.  Perhaps this can be explained because female judges are more likely than their male counterparts to see women as able to commit crimes.  In cases on LGBTQ rights, women are more than 20% more likely to find a constitutional violation.

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Chief Justice Ireland gave an example from his time as a Juvenile Court judge when diversity played a role in providing perspective.  He explained that he regularly made custody decisions and felt that his upbringing may have made him more tolerant.  When a social worker would suggest that a child should be removed from a home that was in relative disrepair or had cockroaches, he explained, an individual from a middle class background might see the situation as abhorrent and meriting removal.  However, Chief Justice Ireland felt that he could sympathize with the lower-income parents who were doing their best in a challenging situation and might be more open to their retention of custody if he felt it was in the child’s best interest.

Judges also face bias.  In a set of 2014 studies completed by Massachusetts General Hospital psychologists and Harvard University professors, 10 years of anonymous judicial evaluations by attorneys demonstrated that black judges are rated far more negatively than their white counterparts.  They concluded, “the general theme that emerged [from focus groups] was the idea that persons of color do not match the expectations of what a judge should look like, and therefore confront more doubt, mistrust, and interpersonal tensions than do non-minority judges.”

Chief Justice Ordoñez explained that though she has gone through four phases of judicial evaluations, the one she remembers most vividly came from early in her career and accused her of being a judge only because of her minority status.  She said it made her feel horrible and was scarring.  She has since worked hard to become part of the solution, working to reform the evaluation questions and process to best and holistically measure the attributes and improvement needs of judges.  Andrea Kramer stressed that the issue is not about diversity versus competency – there are of course many competent judges and candidates across all categories, and with more diverse judges, there will likely be fewer evaluations based solely on negative perceptions of a judge’s background.

While Massachusetts ranks 11th nationally on a 2016 judicial diversity study conducted by the American Constitution Society, it still has a long way to go.  Currently, 56% of state court judges are white men, 30% are white women, 7% are men of color, and 7% are women of color.  Compare this with the state’s general population, comprised of 36% white men, 38% white women, 12% men of color and 13% women of color.  Still, as is often the case, Massachusetts is outpacing most other states.  Nationally only 30% of state judges are women (37% in MA) and the percentage difference between judicial representation and general population representation for individuals of color is 18% (compared with 11% in Massachusetts).

So what can we do to improve the status quo?  Governor’s Chief Legal Counsel Lon Povich spoke at the event (as he and we have before) about his office’s need for top candidates to  pursue judgeships.  It’s a simple message – the only way to have great and diverse judges is for great and diverse lawyers to apply.  Povich and the Governor have done their part by assembling a diverse Judicial Nominating Commission (likely the most diverse ever) to consider applicants, and by continuing to appoint diverse candidates – of the 17 judges appointed by Governor Baker so far, twelve are women, two are African American, and three self-identified as LGBTQ.  Now it’s up to the bar to apply for future openings.

Chief Justices Ireland and Ordoñez both spoke about their experiences with this process.  Ireland stressed that it was only a job application and urged applicants to keep trying until they get the job, without getting discouraged if at first they do not succeed.  He talked about not making it to the bench on his first application to the Boston Municipal Court and about later applying to the SJC three times before being selected to the state’s highest court, where he was eventually appointed Chief Justice.  Chief Justice Ordoñez and Andrea Kramer noted that organizations like the Women’s Bar Association help candidates with the application process and with mock interviews.

As always, we will do our best to keep you updated on the judicial application and review process.  We hope that diverse candidates will continue to apply so that the judiciary can increasingly reflect the diversity of the society that it serves.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

 

Appeals Court Case Review: Re-Opening Settlement Agreements and Alimony Law

On June 24, the Appeals Court released its decision in Demarco v. Demarco (Appeals Court: 2016-P-0190), a case with fascinating implications for the bar.  As with the cases explained last week – Commonwealth v. Moore on postverdict juror contact and Bryan Corp v. Bryan Abrano on the “hot potato” doctrine, the BBA’s Amicus Committee considered taking part in the amicus process in this case, but ultimately declined.  In case you weren’t aware, the BBA has an extremely active Amicus Committee which reviews requests for amici and can sign onto or write and submit its own briefs at all jurisdictional levels in cases related to BBA’s mission, such as on the practice of law and access to justice.  Here are samples of some of our biggest cases.  If you have a case you think is appropriate for our consideration, please reach out!

The Demarco case revolves around a settlement agreement on alimony issues that was made when interpretation of the recently revised alimony law was still in flux, and whether the Probate and Family Court had the authority to allow the wife’s Rule 60(b) motion to effectively reopen the pre-settlement complaints for contempt and modification.

Case Facts

On May 5, 2010, Katherine and Michael Demarco were divorced after more than thirty years of marriage.  Under their Separation Agreement, signed May 4, 2010, the alimony provision obligated husband to pay wife a base alimony amount and, in addition, 33% annually of his total gross earned income over a fixed amount.  The Separation Agreement provided that the husband’s alimony obligation to the wife would terminate upon the earliest to occur – (a) the husband’s death, (b) the wife’s death, (c) the wife’s remarriage, or (d) at such time as husband has no gross income, after turning age 68.  Further, the Agreement provides that after turning age 68, husband shall continue to pay alimony to wife at the same rate, and if gross income earned after turning 68 is less than the fixed 33% threshold amount, husband shall continue to pay wife 33% of his gross earned income.

On March 1, 2012, the Alimony Reform Act took effect.  The retirement provision codified at G.L. c.208 § 49(f) created uncertainty in family law practice, as to whether it had retroactive effect to Settlement Agreements prior to enactment – in particular, the new provisions on a payor reaching retirement age and a payee co-habitating with a new partner.  On the same date, husband filed a Complaint for Modification, requesting a modification of his alimony obligation.  On February 18, 2013, wife filed a Complaint for Contempt, alleging that husband owed her unpaid alimony and other money and assets.  On February 25, 2013, husband filed an Amended Complaint for Modification seeking to terminate his alimony obligation due to his reaching full retirement age.

On February 19, 2014, the parties appeared for trial on wife’s February 18, 2013, “Complaint for Contempt” and husband’s February 25, 2013, “Amended Complaint for Modification.”  The Court (Judge Casey) encouraged the parties to consider a settlement and expressed its opinion to the parties that Section 49(f) of the Alimony Reform Act applied retroactively, now that the husband had reached retirement age.  The parties came to an agreement on February 19, 2014, whereby the husband was to pay wife $90,000 and thereafter end his alimony obligation to the wife. The Court entered a Modification Judgment on that date ordering the parties to comply with their Agreement.

On January 30, 2015, the Supreme Judicial Court (“SJC”) concluded, in three published opinions, that the retirement termination provision of G.L. c. 208 §49(f) did not apply retroactively.

On August 7, 2015, wife filed a Motion for Equitable Relief and a Motion for Relief from Judgments Dated 2-19-14 under Rule 60(b)(5) and (6).  She argued that the parties’ agreement was based on their and the Court’s incorrect interpretation of the Alimony Reform Act.  On August 13, 2015, husband filed his Opposition to the Motion.

On November 24, 2015, the Probate and Family Court issued a Memorandum of Decision and Order allowing the Motion under Rule 60(b)(6) and reopening both the Complaint for Contempt and Amended Complaint for Modification.  Rule 60(b)(6) states in relevant part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:… (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

The Court reasoned that the wife merited relief under Rule 60(b)(6) and its broad equitable powers.  The Memorandum of Decision explained that it was not equitable to hold wife to an agreement she entered into while relying on the Court’s incorrect interpretation of the law.  Furthermore, it stated that relief was merited under Rule 60(b)(6) both because of the SJC’s clarification of the Act subsequent to the parties’ agreement and because of the Court’s incorrect interpretation of the Alimony Reform Act.  The Court found that the wife’s reliance on the incorrect interpretation was the type of “extraordinary circumstance,” warranting relief under Rule 60(b)(6) because it caused her “serious financial detriment.”

On February 16, 2016, the Appeals Court requested amicus briefs on the following issue by March 18, 2016:

Where a divorce judgment predated the alimony reform act but was later modified by agreement of the parties after the effective date of the act — in order to resolve the former husband’s claim that his alimony obligation terminated under the act’s retirement provision, G. L. c. 208, § 49 (f) — and where their agreement survived the modification judgment, whether a judge could properly relieve the former wife of the agreed modification pursuant to Mass. R. Dom. Rel. P. 60 (b) (6), G. L. c. 215, § 6, or otherwise, based on a “clarification of the law” that occurred when this court subsequently held that the retirement provision does not apply retroactively.

On February 19, 2016, husband/appellant filed his appeal brief.  Oral argument was held April 5, 2016.

The Decision

On June 24, the Appeals Court released its holding in this case, reversing the lower court for incorrectly applying Rule 60(b)(6) to reopen the couple’s settlement.  The Court agreed with the husband’s argument that “subsequent clarification of the law” was not the type of extraordinary circumstance intended to be relieved by the application of Rule 60(b)(6) and noted that it had policy concerns about reopening a settlement without more extreme circumstances:

While Probate and Family Court judges enjoy considerable discretion, that discretion does not extend to vitiating a contract that was negotiated at arm’s length and entered into freely and voluntarily. In the absence of fraud, coercion, or countervailing equities, a signatory to an agreement is bound by its terms.  Knox v. Remick, 371 Mass. 433, 436-437 (1976). Grindlinger v. Grindlinger, 10 Mass. App. Ct. 823, 824 (1980). To hold otherwise would negate the integrity and inviolability of the innumerable surviving agreements relied upon by parties across the Commonwealth. We can never know all of the considerations of parties who elect to resolve their cases in this manner, nor does the record reflect such considerations here. However, to allow an agreement such as the one here to be unwound based on one party’s subsequent determination that she would have fared better if she had tried the case to completion, would deprive the other party of the certainty and finality for which he bargained.

We applaud the courts for taking on these issues.  We also note that we have been keeping an eye on an alimony reform bill that has already passed the House.  The bill proposes to further clarify some of the confusion from these cases and to overturn the SJC’s January 2015 interpretation  by giving retroactive effect to the provisions terminating alimony on the payor reaching retirement age (G.L. c. 208 §49(f)), and suspending, reducing or terminating alimony upon cohabitation of the recipient spouse for a period of at least three months (G.L. c. 208 §49(d)).  The BBA’s Family Law Section has reviewed the bill and we will let you know how it ends up.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Increasing Diversity in Legal Practice at the US Supreme Court

We are very pleased with today’s decision in Fisher v. University of Texas, upholding the school’s race-conscious admissions policy with a finding that it does not violate the Equal Protection Clause.  The BBA is thrilled that the Court reached the outcome we argued for in our amicus brief, that experimentation in admissions is necessary to balance the pursuit of diversity with constitutional requirements of equal treatment.  This ruling means that the University of Texas, as well as other schools across the country, may continue to experiment with admissions policies intended to create a more racially inclusive classroom, and society.

The BBA has for some time supported the use of race-conscious admissions policies for higher-education institutions, including in the 2003 case, Grutter v. Bollinger and the first iteration of the Fisher case in 2012.  The BBA’s amicus briefs in both cases, drafted by BBA Secretary Jon Albano, Morgan Lewis, (Fisher II with the help of Sarah Paige) argued that race-conscious admissions policies are positive and necessary, especially to achieve increased diversity in the legal profession.  To quote our Fisher I brief:

… Until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

Grutter v. Bollinger was a landmark case in which the Supreme Court upheld the University of Michigan law school’s affirmative-action admissions policy.  In its Fisher I decision, the Court vacated and remanded a Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The ruling effectively upheld race-conscious admissions policies, but also complicated the overall picture by cautioning that race-conscious admissions policies must establish a quantifiable interest in the educational benefits of a diverse student body, and that higher-education institutions must be able to show that “workable, race-neutral alternatives” will not suffice, and demonstrate that the consideration of race is narrowly tailored.  The BBA provided some clarity on the college admissions process going forward with a program in late 2013, but the issue remained open to discussion and interpretation.

In July 2014, a three-judge panel on the Fifth Circuit again upheld the University of Texas admissions plan, and the case returned to the Supreme Court when the Court granted a petition for writ of certoriari in late June 2015.  In early November 2015, the BBA filed its amicus brief with the support of seven diverse Massachusetts bar organizations:

  • Asian American Lawyers Association of Massachusetts,
  • Massachusetts Association of Hispanic Attorneys,
  • Massachusetts Black Lawyers Association,
  • Massachusetts Black Women Attorneys,
  • Massachusetts LGBTQ Bar Association,
  • South Asian Bar Association of Greater Boston, and the
  • Women’s Bar Association.

Our brief in this case is similar to the one we filed in Fisher I, arguing that state efforts to promote diversity in education serve a compelling governmental interest that is directly relevant to the goals of the legal profession, and that diversity of lawyers enhances the legal profession and society as a whole.  It explains that this diversity in the legal profession can be achieved only by the creation of a diverse pipeline of students from undergraduate institutions.

We hope that this case will help to further diversity in the legal profession, one of our core values and a major consideration in much of the work we do.  We look forward to achieving a greater understanding of the implications of this holding for higher education and the legal profession in the coming months.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

SJC Case Review Part I – Hot Potato Doctrine

Last week was a big one for our coverage of the SJC, first because the Governor, as we reported last week, announced his three nominees to fill forthcoming vacancies on that court, and second because of the decisions they released, including Bryan Corp. v. Bryan Abrano (SJC-12003), and Commonwealth v. Moore (SJC-11582).  Both cases were considered thoroughly by the BBA’s Amicus Committee which ultimately recommended not taking part in briefs.  Here we will discuss the Abrano case, and in Part II we look at Moore.  In case you weren’t aware, the BBA has an extremely active Amicus Committee which reviews requests for amici and can sign onto or write and submit its own briefs at all jurisdictional levels in cases related to BBA’s mission, such as on the practice of law and access to justice.  Here are samples of some of our biggest cases.  If you have a case you think is appropriate for our consideration, please reach out!

On June 14, the SJC released its decision in Bryan Corp. v. Bryan Abrano.  The case deals with ethical issues related to representation of a closely held corporation and the minority shareholders of that same corporation in a suit against the majority shareholder.  The SJC requested amici about:

Whether the judge erred in disqualifying counsel for the defendant because of his earlier representation of the plaintiff in a separate action, where counsel began his representation of the defendant before he withdrew from his representation of the plaintiff in the earlier action, but where, allegedly, there would be no harm to the plaintiff; whether, and if so in what circumstances, Massachusetts recognizes the so-called “hot potato” doctrine, which precludes an attorney from resolving a disqualifying conflict by dropping one client in favor of the other.

Background – Case Facts

There are substantial case facts that are in question regarding events within the corporation and the family directors/shareholders, but in briefest terms, here is a timeline of important dates:

  • Late 2013 to early 2014 – the law firm, Yurko, Salvesen, and Remz (YSR) began representing Bryan Corporation (the corporation) in a case (the Waldman litigation). Later that year, YSR began representing the minority shareholders of the corporation after their ouster from the board, and at some point (also in question) YSR withdrew its representation of the corporation in Waldman.
  • June 30, 2014 – the husband of one minority shareholder reached out to YSR to discuss concerns about the continued involvement with the corporation of a former majority shareholder who had been barred from exercising any corporate control as a result of a 2008 criminal settlement.
  • July 1, 2014 – the corporation’s purported outside general counsel and two YSR lawyers participated in a conference call regarding the same issue, as well as the majority shareholder’s decision to withhold end of year compensation checks to the two minority shareholders, whom she accused of wrongdoing, including making unauthorized payments to themselves.
  • July 15, 2014 – the majority shareholder ousted the two minority shareholders from the corporation’s board of directors.
  • July 16 or 17, 2014 (the exact date is unclear in the case facts) – YSR advised the corporation that the majority shareholder’s actions resulted in a conflict of interest and the firm could no longer represent the corporation in the Waldman litigation.
  • July 21, 2014 – YSR sent a demand letter to the corporation on behalf of the ousted minority shareholders alleging a breach of fiduciary duty and a violation of the Massachusetts Wage Act for withholding their end of year compensation checks.
  • July 23, 2014 – YSR sent a letter to the corporation, indicating that it would withdraw its representation of the corporation because of a conflict, and stating that it would resolve a discovery matter in the case.
  • July 31, 2014 – YSR filed a formal notice of withdrawal from representing the corporation.
  • November 7, 2014 – YSR filed a complaint on behalf of the ousted minority shareholders against the majority shareholders for breach of a fiduciary duty and the Wage Act.
  • March 2015 – The corporation filed an action against the minority shareholders alleging that they violated their fiduciary duties while in control of the company by making unauthorized payments to themselves.
  • April 8, 2015 – YSR filed a motion to consolidate the two suits.
  • April 9, 2015 – The corporation served a motion to disqualify YSR as counsel for ousted minority shareholder Bryan Abrano. The corporation alleged that it was improper for YSR to represent the Abrano because YSR had previously been hired by the corporation for the Waldman case that was still currently pending.  The corporation argued that the conflict of interest was not thrust upon YSR because of a merger or transfer issue, but rather was based entirely on YSR’s decision to enter into a conflicted dual representation.  The corporation also argued that the conflict would be at issue in this case because YSR had developed many of its arguments during its dual representation, and the minority shareholders’ retention of YSR formed part of the basis of the corporation’s breach of fiduciary duty claim against the minority shareholders  Finally, the corporation alleged that YSR violated Rule 1.9(c) by using the corporation’s own confidential financial, tax, accounting, and other information it had provided to YSR, when it was represented by YSR, in its representation of Abrano.  YSR argued that it withdrew from its representation of the corporation before there was any conflict of interest and continued to represent Abrano without wrongdoing.
  • May 11, 2015 – The Court consolidated the two suits.
  • August 5, 2015 – At a hearing on the motion to disqualify held on in Suffolk Superior Court, Judge Janet L. Sanders allowed the motion “for the reasons set forth… in the motion itself” without making any findings of facts or explanation.
  • November 12, 2015 – SJC took the case on direct appellate review.

What’s at stake?

One of the most interesting elements of this case is its potential implication of the so-called “hot potato” doctrine. The “doctrine,” has never formally been recognized in the Commonwealth.  It arises because of a gap in the Massachusetts Rules of Professional Conduct (MRPC) between Rules 1.7 and 1.9.  Rule 1.7 provides that a lawyer shall not represent a client if there is a concurrent conflict of interest without informed consent from both clients.  This rule applies even if the lawyer is not on both sides of the adversity.  In other words, if a lawyer represents company A in real estate matters and another lawyer at the firm represents company B in corporate matters and A sues B over some other matter, the law firm cannot represent A or B in the litigation — there is direct adversity and that conflict can be overcome only with informed consent.  For purposes of the Rule it does not matter that the representation of A or B is different from, i.e., not substantially similar to, the litigation.  The heart of this obligation stems from the duty of loyalty to current clients.  You cannot have a duty of loyalty to A and be adverse to A in some other respect.

Rule 1.9 deals with former clients.  It says a lawyer cannot represent a client adverse to a former client “in the same or a substantially related matter.”  That limitation is a lower hurdle to representation than contained in Rule 1.7.  The heart of this obligation is to protect the attorney-client privilege.  Lawyers have privileged information from former clients, and if they represent a new client adverse to the old client in the same or a similar matter, the firm runs the risk of violating the privilege of the former client.

The hot potato doctrine can arise in two ways.  In the aforementioned scenario, the “hot potato” doctrine would bar the law firm from taking client B and dropping client A because it violates the duty of loyalty to client A under Rule 1.7.  The hot potato doctrine also bars a lawyer or law firm from either taking on a second client that is adverse to a pre-existing client or dropping the pre-existing client in favor of taking on the new client under Rule 1.7, regardless of the size or import of either client.

Oral Argument

On March 8, 2016, the SJC held oral argument in the case.  YSR argued that the two representations at issue here – the corporation in the Waldman case and the minority shareholders– were completely unrelated.  According to the firm, its representation of the minority shareholders on July 1, 2014, was solely for the purpose of addressing interference by a former director, representation that was not adverse to the corporation.  Based on this understanding, YSR was representing the corporation in the Waldman action while at the same time advising two individuals who happened to be minority shareholders of the corporation, about board interference by a former director.  Advising the minority shareholders as of July 1 was not adverse to the corporation and presented no conflict in the Waldman action.  YSR argued that a conflict arose only on July 15, when the majority shareholder took action to oust the two minority shareholders.  Thus, adversity was driven by the actions of the corporation, and the firm withdrew from its representation of the corporation within two days after the conflict emerged.

Opposing counsel argued that the conflict arose on June 30, 2014, when the majority shareholder stopped payment on checks to the minority shareholders who were consulting with YSR.  Thus, between July 1 and July 15, YSR violated both Rule 1.7 and Rule 1.9.

SJC Decision

On June 14, the SJC released its decision affirming the order of disqualification under Rule 1.7 only, meaning it did not need to reach the parties’ arguments under Rule 1.9 or the “hot potato” doctrine.  The holding extensively references another recent SJC case, Maling v. Finnegan, explaining that Rule 1.7 serves a dual purpose as both a prophylactic measure to protect confidences that a client may have shared with his or her attorney and as a safeguard of loyalty in the attorney-client relationship.

As applied to the case at hand, the Court found that the disqualified attorney failed his duty as a reasonable lawyer to anticipate potential conflicts, and decline representation of a party adverse to one he currently represented – here the minority shareholder who was adverse to the corporation.  The Court concluded, that “a firm may not undertake representation of a new client where the firm can reasonably anticipate that a conflict will develop with an existing client, and then choose between the two clients when the conflict materializes.  Both the duty of loyalty and the rules clearly forbid such conduct.”  The Court found that sanctioning the attorney by disqualification was not an abuse of discretion in this case and furthered the policy rationale underlying the rules of professional conduct by upholding the principle that a client is entitled to the undivided loyalty of his or her lawyer.

The holding also noted that the absence of oral or written findings by the motion judge made the SJC’s task on appeal more difficult.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

SJC Case Review Part II – Post Verdict Juror Contact

Just two days after it released Abrano, the SJC released its holding in Commonwealth v. Moore.  The case was before the SJC on a report of questions submitted by Superior Court Judge Jeffrey Locke as to whether Rule 3.5 of the MRPC as amended and effective July 1, 2015, overruled Commonwealth v. Fidler, 377 Mass. 192, 203-04 (1979).  The case facts revolve around defendant Dwayne Moore, who was convicted by a jury on four counts of first-degree murder, home invasion, and armed robbery in Superior Court on December 17, 2012.  On November 21, 2013, the defendant filed a direct appeal, and on July 14, 2015, an attorney from the firm representing defendant Moore sent notice to the Assistant District Attorney, which was received on July 17, that he would be contacting the jurors, and included a copy of the letter she would be sending them.  On July 21, 2015, the defendant’s appellate attorneys sent the letter to the discharged jurors seeking information about their jury service.

On July 23, the Commonwealth filed an emergency motion for judicial intervention to prohibit the jury inquiry and the defendant filed an opposition.  On July 24, Judge Locke held a hearing and ruled from the bench that he would report questions to an appellate court.

Prior to July 1, 2015, MRPC Rule 3.5 stated:

A lawyer shall not:

(d) after discharge of the jury from further consideration of a case with which the lawyer was connected, initiate any communication with a member of the jury without leave of court granted for good cause shown. If a juror initiates a communication with such a lawyer, directly or indirectly, the lawyer may respond provided that the lawyer shall not ask questions of or make comments to a member of that jury that are intended only to harass or embarrass the juror or to influence his or her actions in future jury service. In no circumstances shall such a lawyer inquire of a juror concerning the jury’s deliberation processes.

Effective July 1, 2015, Mass. R. Prof. C. 3.5 was revised, and now states:

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

(c) communicate with a juror or prospective juror after discharge of the jury if:

(1) the communication is prohibited by law or court order;

(2) the juror has made known to the lawyer, either directly or through communications with the judge or otherwise, a desire not to communicate with the lawyer; or

(3) the communication involves misrepresentation, coercion, duress or harassment; or

(d) engage in conduct intended to disrupt a tribunal.

The Fidler case states that post-verdict interviews of jurors “should only be initiated if the court finds some suggestion that there were extraneous matters in the jury’s deliberation.”  Since Fidler, the common law has developed to give judges discretion to determine whether post-verdict juror inquiry is warranted – generally requiring “some showing of illegal or prejudicial intrusion into the jury process.”

Judge Locke analyzed whether the SJC’s adoption of the revised rule would overrule the common law regime.  He examined the ABA Model Rules on which the revised MRPC rule was based as well as comments on the proposed revision from the Committee for Public Counsel Services (CPCS) and the Massachusetts Academy of Trial Attorneys (MATA).  He noted that the CPCS and MATA comments indicated that the SJC was “at least aware that one of the purposes for amending Rule 3.5 was to allow attorneys to contact discharged jurors to determine whether they were exposed to extraneous influences during trial.”  He then turned to the BBA Ethics Committee’s comments as evidence that the SJC had notice that simply adopting the revised Rule 3.5 might not be enough to supersede the common law.

Judge Locke reported the following questions after the hearing on July 24:

  1. In revising Rule 3.5 of the Massachusetts Rules of Professional Conduct to permit attorney originated communications with discharged jurors, did the Supreme Judicial Court implicitly overrule the prohibition against attorney originated communications with jurors as set forth in Commonwealth v. Fidler, 377 Mass. 192, 203-204 (1979)?
  2. In generally adopting the American Bar Association’s Model Rule 3.5 containing the language “prohibited by law,” did the Supreme Judicial Court intend Commonwealth v. Fidler to be continuing precedent?
  3. If the answer to question two is “no,” then what types of contact with discharged jurors by an attorney, if any, are “prohibited by law” under Rule 3.5 (c)(1)?
  4. If the answer to question one is “yes,” and the answer to question two is “no,” does revised Rule 3.5 permit attorneys to communicate with jurors who were discharged prior to July 1, 2015?
  5. If the answer to question four is “yes,” in light of Commonwealth v. Fidler, are attorneys required to seek approval from the court prior to contacting jurors?

On July 31, the Supreme Judicial Court (SJC) took the case sua sponte.  On October 22, the SJC released a request for amici raising the following issues:

Whether the 2015 amendment to S.J.C. Rule 3:07 (Rules of Professional Conduct), Rule 3.5 – which provides in relevant part that “[a] lawyer shall not . . . communicate with a juror . . . after discharge of the jury if . . . the communication is prohibited by law or court order” – effectively superseded the holding in Commonwealth v. Fidler, 377 Mass. 192, 201-204 (1979), that counsel may not contact jurors after a verdict is rendered except as directed and supervised by the judge; if so, whether the rule now permits attorneys to initiate contact with jurors who were discharged prior to the effective date of the amendment.

Oral Argument

On February 10, 2016, the SJC held oral argument in this case.  Teresa Anderson argued for the Commonwealth that the Court should not overturn the rule laid out in Fidler.  Instead, she claimed, the only advisable change to the pre-2015 version of Rule 3.5 limiting postverdict juror would be to remove the requirement of a showing of “extraneous influence” as a standard to be met before an attorney could ask a court’s permission to contact jurors.  She justified her reading of the current Rule 3.5 because of its language in subsection (c)(1), prohibiting juror contact if “the communication is prohibited by law or court order,” here by the common law as explained in Fidler.

Attorney for the appellant, Chauncey Wood, argued that the Court had the power to overturn its own prior holdings in adopting the revised Rule 3.5.  When asked if he felt there should be any limits on what a lawyer can do in contacting jurors, he quoted from the rule, including that the communication could not involve “misrepresentation, coercion, duress or harassment,” and gave opposing views on whether attorneys could discuss juror deliberations.  He noted that historically juror deliberations were considered basically “sacrosanct” in Massachusetts legal history, but also explained that the Massachusetts Association of Criminal Defense Lawyers (MACDL) amicus brief made a strong argument that the old Rule 3.5 explicitly barred discussing juror deliberations, while the new rule was silent on the issue, leaving the door open.

Wood also spoke on application of the rule, pushing for a “short and sweet” instruction to jurors, retroactive application of the new rule, and certain safeguards such as giving notice to the opposing party, and a recommendation that contact be in writing while acknowledging that other forms of communication may be better suited in certain situations and should be permissible with judicial oversight.

SJC Decision

On June 16, the SJC released its decision, holding that attorneys can have unsupervised postverdict contact with jurors, without special court permission, but with some limits – both those contained in the rule and some from the common law.  To this end, the new Rule 3.5 operates in tandem with Fidler, as argued by Attorney Wood, which provides the common-law principles barring inquiry into the contents of jury deliberations and thought processes of jurors, and the impeachment of jury verdicts based on information that might be gained from such inquiry.  The Court left open the possibility of future restrictions on the rule, but adopted a wait-and-see approach since the rule had been in operation for less than two-years.

On the question of rule application, the Court held that the rule would apply only prospectively from the July 1, 2015, effective date but also to cases in which the jurors were discharged before the effective date if the case was on appeal as of that date or the appeal period had not run.

Finally, the Court offered guidelines for the use of Rule 3.5(c).  In brief they are:

  1. A trial judge will give the jury instructions regarding both their rights and the rights of the attorneys at the request of any party. The opinion includes a sample jury instruction.
  2. An attorney initiating postverdict contact must send prior notice of their intent to the opposing party or parties five business days before contacting a juror regardless of the method of communication. The notice must include a description of the proposed manner and substance of the contact as well as a copy of any letter or other written communication the attorney intends to send.  The preferred method of juror contact is via letter, and should include a statement that the juror may decline any contact with the attorney or terminate contact once initiated.
  3. An attorney wishing to secure an affidavit from the juror concerning alleged extraneous influence on the jury deliberation process may do so without seeking or obtaining prior court approval, but the affidavit must focus on extraneous influence and not on the substance of the jury’s deliberations or the individual or collective thought processes of the juror or the jury as a whole.

In an appendix to the decision, the SJC included a suggested jury instruction.  It begins by stressing to jurors that it is their choice at any time whether or not they want to speak to attorneys.  Next, it prohibits jurors from discussing the substance or content of the jury’s deliberations with attorneys, except to tell an attorney if a juror provided outside information about the case or parties that was not contained in presented evidence.  The instruction goes on to inform jurors wishing to avoid attorney contact that they can do so by telling the judge or a court officer.  Finally, the instruction requests that jurors contact the court if an attorney persists in requests to discuss the case over their objection and/or becomes critical of the juror’s service.

We are interested to see how practice will evolve with this ruling and whether the SJC will end up revisiting it either in future cases or rule changes.  We look forward to keeping you posted on these issues.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

SJC Overhaul

Gov Baker SJC Nominees

It’s been quite a week, with major implications for justice in the Commonwealth for years to come, as the Governor announced his three nominees for upcoming Supreme Judicial Court (SJC) vacancies on Tuesday.  The SJC is not only the highest appellate court in the state, issuing approximately 200 full bench written decisions and 600 single justice decisions annually, but its justices are also responsible for the “general superintendence” of the judiciary and the bar.  This function includes making, revising, and approving rules for the operations of the courts and providing advisory opinions to other branches of government.  For example, over the past few months, the BBA has taken part in commenting on proposed revisions to civil procedures for various court departments aimed at improving the cost-effectiveness of litigation.  This overhaul originated with the SJC and final revisions will be approved by an SJC led committee before being codified.  It is all but impossible to overstate the huge role this court plays for justice and legal practice in Massachusetts.

What is Changing?

Therefore, it is truly remarkable that this Court will be going through such a major change in its makeup in so short a time.  With five of the seven justices leaving by the end of next year, the first three replacements are only part of the picture.  The justices leaving before the court’s next session in September are Robert Cordy, Francis X. Spina and Fernande R.V. Duffly.

  • Robert Cordy – In February, Justice Cordy announced his early retirement (at age 66, four years short of the mandatory retirement age). He was appointed to the SJC by Governor Paul Cellucci in 2001.  Justice Cordy graduated from Harvard Law School and started his legal career with the Massachusetts Public Defenders Office.  He then worked for the Department of Revenue, the State Ethics Commission, as a Federal Prosecutor in the US Attorney’s Office in Massachusetts, as a partner at the law firm Burns & Levinson, and as Chief Legal Counsel to Governor William Weld.  Prior to his appointment to the SJC in 2001 by Governor Paul Cellucci, Cordy was Managing Partner in the Boston office of the international law firm of McDermott, Will & Emery.  He has served as Chair of the SJC Rules Committee and in leadership roles in a number of other court committees, including those focused on media and capital planning.  He has not yet announced his plans after stepping down from the state’s highest court.
  • Fernande Duffly – will retire on July 12, at the age of 67, a move she explained is to help her husband recover from a recent surgery. A native of Indonesia and a graduate of Harvard Law School, Justice Duffly started her legal career at a Boston law firm then known as Warner and Stackpole.  She served on the Probate and Family Court from 1992-2000, the Appeals Court from 2000 to 2011, and was appointed to the SJC in 2011 by Governor Deval Patrick, becoming the first Asian American member of that court.  Throughout her career she has demonstrated a commitment to supporting women and diversity in the law.
  • Francis Spina – From Pittsfield, Justice Spina graduated from Boston College Law School before working in legal services for two years. He eventually became an assistant district attorney before becoming a partner in a Pittsfield law firm.  He was appointed to the Superior Court in 1993, then to the Appeals Court in 1997, and to the SJC in 1999 by Governor Paul Cellucci.  He will reach the mandatory retirement age of 70 on November 13, 2016, but is stepping down on August 12.

Of the seven current SJC Justices, Spina and Cordy are the only two who were nominated to the SJC by Republicans (both by Paul Cellucci).  Obviously that is going to change soon as Republican Governor Charlie Baker starts to shape the court.  His three nominees to fill these spots are all former prosecutors and current Superior Court judges, Kimberly S. Budd, Frank M. Gaziano, and David A. Lowy.

  • Kimberly Budd – A resident of Newton and graduate of Harvard Law School, Budd began her legal career with the Boston law firm Mintz Levin. She then became an Assistant U.S. Attorney before serving as University Attorney for Harvard and later as Director of the Community Values program at Harvard Business School before her appointment to the Superior Court in 2009 by Governor Deval Patrick.  She served as a member of the BBA’s Education Committee from 2006 to 2007 and Council from 2003 to 2005 prior to her appointment to the bench.  After becoming a judge, she served on the Boston Bar Journal Board of Editors from 2012 to 2014.  Budd will be the second black female justice on the SJC after the 2014 appointment of Justice Geraldine Hines.
  • Frank Gaziano – Graduate of Suffolk University Law School, he started his legal career at the Boston law firm of Foley, Hoag & Eliot (now Foley Hoag). He also worked as a prosecutor in the Plymouth County District Attorney’s office and the U.S Attorney’s office.  Gaziano was appointed to the Superior Court in 2004 by Governor Mitt Romney.  He served on the Boston Bar Journal Board of Editors in 2011 and 2012.
  • David Lowy – A resident of Marblehead, and graduate of Boston University School of Law, David Lowy has served as a judge since 1997, first in District Court and then, since 2001, in Essex Superior Court. Prior to his appointment to the bench he worked as an associate at the Boston office of the law firm Goodwin, Procter & Hoar (now Goodwin Procter) and as an assistant district attorney.  He also worked as Deputy Legal Counsel to Governor William Weld from 1992 to 1995, under whom Governor Baker also served as a cabinet secretary.

The Process

These three nominees emerged thanks to the hard work of a special 12-member Supreme Judicial Court Nominating Commission (Special JNC) established by the Governor in February to assist the current Judicial Nominating Commission (JNC) in vetting all of the SJC applicants and nominees.  BBA President Lisa Arrowood is a member of this panel along with a number of former BBA leaders.  The Special JNC is co-chaired the Governor’s Chief Legal Counsel Lon Povich and former BBA President Paul Dacier, who is also chair of the JNC and executive vice president and general counsel of EMC Corporation.  The other members include:

  • Former SJC Chief Justice Roderick Ireland;
  • Roberto Braceras, Vice-Chair, JNC, and Partner, Goodwin Procter LLP;
  • Brackett Denniston, retired General Counsel of GE;
  • Retired Superior Court Justice Margaret Hinkle;
  • Marsha Kazarosian, immediate Past President, Massachusetts Bar Association, and partner, Kazarosian Costello;
  • Joan Lukey, Partner, Choate Hall & Stewart, LLP;
  • Elizabeth Lunt, Of Counsel, Zalkind Duncan & Bernstein;
  • John Pucci, Partner, Bulkley, Richardson and Gelinas, LLP; and
  • Carol Vittorioso, Vice-Chair, JNC, Partner, Vittorioso & Taylor.

We have explained the JNC before, but, to briefly review, the JNC is a group of diverse individuals appointed by the Governor (the regular JNC has 21 members, while the Special JNC has 12), with great knowledge and experience with the court system.  Members of the bar must have at least seven years of practice experience.  The JNC provides a first layer of review for judicial nominees – identifying and inviting applications by qualified individuals, reviewing applications, and interviewing candidates.  The group conducts votes requiring an increasing number of approving Commissioners at various steps of the process, narrowing down the list of individuals until a final vote requiring a 2/3 majority is conducted to see which applicants’ names will be submitted to the Governor for consideration for nomination.  They typically provide between three and six candidates for each vacancy.  The Governor’s Office then selects its candidates, here, Budd, Gaziano, and Lowy.

What’s Next?

The next step is approval by the Governor’s Council, a group of eight individuals elected every two years and the Lieutenant Governor, who serves ex-officio as president of the Council.  The Councilors review the nominee’s backgrounds, interview them, and hold open hearings where their supporters and opponents have the chance to speak.  The three candidates have already been approved by past iterations of the Council as they are all currently on the bench, but nothing can be taken for granted.

In fact, the process is already garnering media attention as the Council has taken issue with Lt. Gov. Karyn Polito’s plan to preside over the confirmation hearings.  Councilors typically preside over confirmation hearings for lower court judges, but it has been common practice in recent years for the lieutenant governor to preside over hearings for SJC nominees.  However, Councilors challenged Polito, alleging that her presence at the upcoming confirmation hearings will be an unfair publicity grab and was disrespectful to the Council members.  Polito cited historical precedent for her intended role.

The schedule for nominee hearings is set and we look forward to keeping you updated on their progress.  The hearings are all at 9:00 am in Room 428 of the State House as follows:

  • July 6: Judge Frank Gaziano
  • July 20: Judge David Lowy
  • August 3: Judge Kimberly Budd

Finally, keep in mind that this is only the beginning.  The SJC overhaul continues next year as Justices Margot Botsford and Geraldine Hines will both reach mandatory retirement age, Botsford in March and Hines in October.  While we don’t know who will come to the fore as nominees then, a couple of qualifications to look for include:

  • A resident of western Massachusetts – Francis Spina, the only Justice from this region, hails from Pittsfield, and is retiring this year. Nominee Kimberly Budd is the daughter of former U.S. Attorney Wayne Budd, a native of Springfield, but she grew up in Peabody and lives in Newton.  When asked about geographical diversity at his press conference to introduce the nominees, the Governor urged patience.
  • A judge from the Appeals Court – Governor’s Councilor Eileen Duff questioned, as did the Boston Herald, why none of the current nominees came from this court, experience she felt would prepare them well for the SJC.

Throughout this process, the Governor has frequently repeated that he is simply looking for the best candidates.  He and his office continue to encourage strong candidates to apply and are committed to continuing the remarkable traditions of the SJC.  However, the maintenance of a great and diverse bench relies on a great and diverse candidate pool.  The Governor has done his part by creating a remarkably diverse JNC and Special JNC under all metrics from geography to demographics to practice field and size.  It is up to candidates now to apply.  We look forward to seeing what the state’s highest court looks like at the end of this process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association