Legal Fumble? Deflategate and the Law

As we enter week three of the NFL season with the Patriots a pristine 2-0 thanks to the promising work of Jimmy Garoppolo and Jacoby Brissett, it is important to remember what brought us here: the (in)famous Deflategate controversy.  We here at the BBA have decided that now is the optimal time for us to cover the legal issues at stake in the case.

For those of you who have been living under a football-shaped rock for the last 18 months, Deflategate is the controversy over Tom Brady and the New England Patriots using under-inflated footballs.  It all started on January 18, 2015, in the AFC Championship game between the Patriots and Indianapolis Colts.  About six minutes into the second quarter, Colts linebacker D’Qwell Jackson intercepted a pass from Tom Brady and carried the ball to the sideline.  He noticed that the ball felt softer than usual and inquired about the level of inflation.

This led to an investigation by the league, the results of which were released on May 6, 2015, concluding that the ball at issue, as well as all of the other Patriots’ balls in use at that game, did not meet league inflation specifications of 12.5 to 13.5 pounds per square inch (psi).  Investigators found it “more probable than not” that two Patriots equipment employees deliberately broke league rules by using a needle to deflate the balls and that Tom Brady was “at least generally aware” of their actions.  The report went on to state that the equipment personnel would not “personally and unilaterally engage in such conduct in the absence of Brady’s awareness and consent.”

On May 11, 2015, the NFL announced that it would suspend Tom Brady four games and penalize the Patriots organization by eliminating a future first- and fourth-round draft pick and issuing a $1 million fine for “violations of the NFL Policy on Integrity of the Game and Enforcement of Competitive Rules.”  A few days later, Brady and the NFL Players Association (NFLPA) filed a joint appeal of his suspension and shortly thereafter NFL Commissioner Roger Goodell announced that he would hear the appeal himself.

In late July, Goodell upheld the four-game suspension, prompting successful appeals, first by Brady and the NFLPA to the U.S. District Court, and then by the NFL to the Second Circuit Court of Appeals.  To make sense of the situation, we brought in the experts to a program at the BBA earlier this week, discussing the arbitral law behind these decisions.  Led by moderator Lou Mandarini, Segal Roitman, LLP, presenters Joseph E. Santucci Jr., Schwartz Hannum PC, arbitrator Elizabeth Neumeier, and Jasper Groner, Segal Roitman, LLP, had a spirited discussion on the law in this area and its application to what has become one of the most (in)famous cases in New England.

The one clear takeaway from our distinguished panel was that the law in this area is unique and courts are reluctant to intervene or overturn arbitrators’ decisions.  Modern labor-arbitration law was founded in the 1960s with the so-called Steelworkers Trilogy, a series of Supreme Court cases establishing that disputes between unions and employers should, if at all possible, be handled through arbitration, and that arbitrators’ decisions should be subject to great deference.  The cases lay out precedent that Courts will not overturn arbitrators’ decisions even if they disagree with the decision or contract interpretation.  This deference also extends to professional sports leagues, demonstrated most notably in 2001 in Major League Baseball Players Association v. Garvey in which the Court stated that “judicial review of a labor-arbitration decision … is very limited.”

And this deference is for good reason in organized labor, where a typical case may pit an hourly wage earner against a large corporation.  With such a great power imbalance, it makes sense for unions to push for deference to arbitrators, since appeals can present prohibitive costs for their members.  As one presenter put it, arbitration is a substitute for courts everywhere, except in labor, where it is a substitute for a strike.  Obviously, most of the parties in arbitrated labor cases do not have anywhere near the spending power of the NFLPA or Tom Brady.

Yet, despite all this supposed deference, the District Court ruled for Brady and the NFLPA, nullifying the four-game suspension.  Judge Richard M. Berman found that Brady did not receive sufficient notice of the severity of the discipline handed down in this case.  While the holding warmed the hearts of Pats fans, our panelists were in agreement that it did not comport with established case law, a trend they say is sometimes seen in District Courts, where judges may not be as well versed in how to handle appeals, especially from arbitrations.  This is not a knock on the District Courts, as our presenters went on to explain: District Court appeals from labor arbitrations are fairly rare, and increasingly so, as private-sector unions have shrunk in proportion to the overall workforce.  The practice in this area is increasingly esoteric and thus it is reasonable to expect judges and clerks to not be up to speed on the case law.

In late April 2016, a three-judge panel of the Second Circuit Court of Appeals ruled 2-1 to reinstate Brady’s four-game suspension, getting it right in the eyes of our presenters.  The Court found that Commissioner Goodell acted within his powers under the collective bargaining agreement and that he did not deprive Brady of fundamental fairness.  The Court defaulted to the proper deferential standards stating,

The basic principle driving both our analysis and our conclusion is well established: a federal court’s review of labor arbitration awards is narrowly circumscribed and highly deferential — indeed, among the most deferential in the law. Our role is not to determine whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the commissioner should have been for three games or five games or none at all.  Nor is it our role to second-guess the arbitrator’s procedural rulings.

Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.

A subsequent petition for a rehearing in the Second Circuit was denied, and on July 15, Tom Brady announced on Facebook that he had decided to accept the suspension.

So, did it all work out?  While our experts thought so, their discussion led into some Monday morning quarterbacking, pointing out a couple of weak spots in the case.  Though Brady and the NFLPA hired a veritable who’s-who of top lawyers at an estimated cost of around $5 million, commenters noted that they were short on experience dealing specifically with employment arbitration issues.  Furthermore, the NFL’s collective bargaining agreement is extremely detailed, and contains a number of articles explicitly calling for arbitrators, and at times, neutral arbitrators, to handle certain situations, such as injury grievances.  However, the article at issue here (Article 46, Commissioner Discipline) does not actually mention arbitrators or arbitration at all.  Instead, it lays out a process for handling certain disputes and “action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football,” such as occurred here.  The article gives the Commissioner power to appoint one or more hearing officers of his choosing.

So, was this arbitration?  Should it have been subjected to such an extreme level of deference by the courts?  The NFLPA lawyers did not even make an argument along these lines.

They also never argued about the severity of the four-game suspension, which is a common issue in sports suspension arbitrations.  Given the brevity of both the NFL regular season (only 16 games) and the average NFL player’s career (roughly 3-4 years), suspensions can have a major impact on players’ earning power.  A suspension of the length handed down here could be argued to being akin to barring a typical employee from working at their job for two-to-three prime earning years.  While it may not be the most sympathetic argument in Brady’s case, given his wealth and uncommon longevity, this sort of argument has been used effectively in similar cases in the past.

Going forward, it will be interesting to see whether this issue will become a sticking point in the NFL’s next round of collective bargaining in 2021.  Will players be willing to take a stand to decrease the Commissioner’s power in these cases and demand neutral arbitrators?  Will they be willing to take a hit in other aspects, especially economically, to have greater say in these sorts of procedures?  The debate is something to look forward to in a few years, but for now, we’ll focus on October 9, when Tom Brady is scheduled to make his return against the Browns.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Welcome Back SJC

 

The start of our program year coincides with the start of the new session of the Supreme Judicial Court, which runs until May 2017.  The Justices held their first oral argument on September 6, when Chief Justice Ralph Gants welcomed three recently confirmed justices to the bench for the first time – Frank Gaziano, David Lowy, and Kimberly Budd who replace retired Justices Frank Spina, Robert Cordy, and Fernande Duffly.  They join returning justices Barbara Lenk, Margot Botsford, and Geraldine Hines, the latter two of whom face mandatory retirement in 2017.

Here are some cases we’ll be keeping a close eye on this session:

Mandatory Minimum Sentencing

The first case of interest, Commonwealth v. Laltaprasad (SJC-11970), was actually argued last session, but the Court waived its 130-day rule, which requires it to issue a written opinion within 130 days after argument (or submission without argument), and still has not issued its holding.  The case revolves around Superior Court Judge Shannon Frison’s departure from the mandatory minimum sentence for drug crimes of which the defendant was convicted.  On July 23, 2015, the defendant was convicted of possession with intent to distribute heroin, subsequent offense, under G.L. 94C §32(b), and possession with intent to distribute cocaine, subsequent offense, under G.L. 94C, §32A(d).  At sentencing, the Commonwealth recommended 3.5 to 5 years in state prison.  The court departed from the mandatory minimum of 3.5 years in state prison required by G.L. 94C, §32A(d), and G.L. 94C §32(b), and instead imposed a sentence of 2.5 years in the house of correction, explaining in its memorandum of sentence departure:

(1) The defendant does not have a prior conviction for drug trafficking at seriousness levels 7 or 8; and

(2) The facts and circumstances surrounding this matter warrant a lesser sentence.  Specifically, the defendant was arrested with less than 1 gram of the controlled substances.  Further, the defendant was severely injured when the other individual shot a firearm at him.  He suffered 11 gunshot wounds and endured 21 surgeries prior to trial.  Given both the relatively small amount of contraband involved in this arrest and the extreme medical condition of the defendant, the Court will depart downward and impose a sentence of 2.5 years in the House of Correction.

The Commonwealth appealed this decision, arguing that the judge had no discretion to depart from the mandatory minimum sentence because the Legislature has exclusive power to prescribe sentencing penalties, and that separation of powers principles preclude a judge from disregarding the Legislature’s directive.  The Commonwealth also argued that sentencing guidelines recommended pursuant to G.L. c. 211E, which permit a judge to depart from a mandatory minimum sentence, have never been enacted by the Legislature, and thus could not be applied in this case.

In late December, the SJC solicited amicus briefs on “Whether a sentencing judge has discretion to depart from the mandatory minimum terms specified in G. L. c. 94C, § 32 (b), and § 32A (d), under the sentencing guidelines recommended pursuant to G. L. c. 211E or otherwise.”  A large number of organizations submitted amicus briefs making various arguments opposing mandatory minimum sentences, including separation of powers in government, the need for judicial discretion, individualized  and proportional sentencing, and the disparate impact of mandatory minimum drug laws on minority populations.  They also explained that mandatory minimums did not adequately serve the primary purposes of sentencing and argued for safety valves, similar to those in the Federal system and a number of other states, that permit judges to depart from mandatory minimum sentencing schemes under certain circumstances.

Until the decision is issued, it remains unclear why the SJC chose to take this case.  On one hand, it seems clear that the lower-court judge did not follow the law in her sentencing memorandum.  Or did the SJC see here an opportunity to make changes to the current state of mandatory minimum sentencing in the Commonwealth?  From a policy perspective, the BBA has long opposed mandatory minimum sentencing, so we are particularly interested to see if the Court uses this case as a vehicle to move the ball on this issue.

Drug Lab Scandal Solutions

Bridgeman v. District Attorney (SJC-12157) is the latest in the string of cases related to the Annie Dookhan/Hinton Drug Lab scandal, in which convicted chemist Annie Dookhan tainted tens of thousands of drug samples submitted for analysis in criminal cases.  This story broke publicly around 2012, and since then, the Court, CPCS, and the seven District Attorneys (DAs) with affected cases have all struggled with how to handle the voluminous issues that arose.  First, there was the issue of case identification.  Attorney David Meier was assigned the task of gathering information from the drug lab records.  He found that roughly 40,000 samples were affected by Dookhan’s actions.  Over time, that list has been translated into a list of more than 20,000 individuals whose cases remain in limbo.  While the SJC has chipped away at this case slightly, such as through the hard work of a number of retired judges, including BBA Council member, Judge Margaret Hinkle, conducting special drug lab hearings, the remaining numbers are still considerable.

In 2014, the SJC held in Commonwealth v. Scott (SJC-11465) that every person convicted with Annie Dookhan serving as either the primary or secondary chemist was entitled to a presumption of government misconduct tainting their case, meaning that they wouldn’t have to prove that Dookhan acted illicitly in their specific cases.  In their brief for this case, CPCS recommended a “global remedy” to presumptively vacate all convictions of the impacted defendants, with exceptions in a small number of certain cases.

The current case, Bridgeman has been addressed in pieces.  In May 2015, the SJC issued its decision on one issue – whether Dookhan defendants who wanted to withdraw guilty pleas could face additional sanctions.  The Court created an “exposure gap” to prevent chilling of defendants bringing their cases, such that defendants seeking post-conviction relief could not be convicted of more serious offenses or face harsher sentences than previously imposed.  The remaining issue to be addressed in the still pending Bridgeman case (SJC-12157) is whether there has been unconstitutional delay in dealing with the class of cases impacted by the Dookhan scandal, given that this case was filed in 2015, nearly 15 years after the misconduct began, and four years from the public revelation.

We are very interested to see how the Court deals with this case.  Will they adopt a “global solution”?  Or will they opt to handle the more than 20,000 cases on a case-by-case basis?  If the latter, how will the justice system (courts, appointed counsel, DAs, …) handle a potentially unwieldy number of these appeals by Dookhan defendants?  How will impacted defendants be given notice of this outcome and of their rights?  This case seems to carry even greater potential significance given the revelations of evidence issues in the Sonia Farak drug lab scandal and, most recently, the Braintree Police Department.

Bail Considerations

The third case on our radar is Commonwealth v. Wagle (SJ-2016-0334), on whether it is a violation of the state and federal constitutional guarantees of equal protection and due process of law to hold  an impoverished defendant in jail before trial because she cannot afford money bail (see the Petition for Relief here).  The case is the latest in a series of cases (see, e.g. Commonwealth v. Henry) and discussions on costs and fees in the criminal justice system generally.

In this case, a Single Justice (Hines) issued an interim order, decreasing the bail amount and granting leave to her attorneys to file a revised petition in 30 days (by September 24, 2016), making arguments for “systemic relief” for the class of similarly situated individuals.  Justice Hines requested that the amended petition focus “specifically on the terms of the Massachusetts bail statute and how it is being applied by Massachusetts judges, and why the defendant claims that our statute and its application are unconstitutional.”  After reading this petition and a response from the Commonwealth, and permitting both sides to be heard on the question of reservation and reporting, the Single Justice will consider whether this case should go before the full panel of the SJC.

We’ll be keeping a close eye on this case and the discussion of fees in the criminal justice system generally.  It is important to remember that the courts are only one player here, as we are also looking forward to seeing the criminal justice reform proposals in the Legislature emerging as a result of the forthcoming Council of State Governments report.

Those are just three of a number of cases we are watching, and we can’t wait to see what other issues the SJC takes on this session, as well as what impact, if any, the changing personnel on the Court will have.  We look forward to following up with you on these cases of interest and telling you about more throughout this SJC session.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

2016-17 Program Year Begins!

Welcome to the new program year!  As Section Steering Committee meetings enter full swing, and the BBA again hums with activity, we wanted to take the opportunity to review some of our public-policy procedures while taking a look back on some highlights of our work from last year.

We are always interested in getting involved with matters of public policy to:

  • Increase access to justice
  • Provide fair and efficient administration of justice; and
  • Enhance the quality and practice of the law

While this sometimes entails the BBA taking a formal position in support or opposition of a bill, policy, or rule, more often than not we take a more nuanced stance.  Be it through amicus briefs, comments to the courts, or work on legislation, the BBA strives to represent reasoned positions of legal experts and to offer a unique perspective.  Sometimes that means we present conflicting views together, and we are comfortable with that.

For example, in April, BBA Council approved submission of comments from the Association and a number of Sections to the Trial Court Committee on Public Access to Court Records regarding the Proposed Uniform Rules on Public Access.  We have documented our involvement with this issue a number of times here on the blog.  In brief, we have been involved with this issue for over a year, and called together a special working group to scrutinize the proposed rule over a three month period early this year.  What may have been lost in the shuffle is that our comments reflect the existing oppositional views of the bar.  While practitioners in some areas had specific concerns, the major divide was between those wanting broad online access and those focused more on the privacy concerns that elicits.  We strove to adequately present both views to the courts for their consideration in drafting the rule and were pleased with the results, as the final rules appear to contain a number of amendments based on our suggestions.

In our policy work, one of the biggest consistent challenges we face is timing.  Our policy procedures have at times generated frustration, because it can sometimes take months for us to reach an official position.  We believe, however, that a process allowing us to get input from all our interested Sections, and to register viewpoints that may not initially have been apparent, helps us come to the best outcome.  This is especially important because one of our hallmarks is to stand by our positions, often for decades.  Therefore, we urge you to bring your policy or amicus requests to us with as much time as possible – it makes the process better for everyone.  However, that’s not to say we can’t speed things up when our voice is needed…

In mid-October, when we learned of Recinos v. Escobar, we knew it was a case that aligned with our principles, and that we had something to add to the discussion.  The case was taken up sua sponte by the SJC in expedited fashion to address the jurisdiction of the Probate and Family Court to hear the case of a 20-year old woman seeking federal Special Immigrant Juvenile status before her 21st birthday in December.

Since 1990, the federal government has provided for Special Immigrant Juvenile (SIJ) status to children, defined by federal law as unmarried persons under the age of 21, as a pathway to seek legal permanent resident status.  SIJ status requires a finding of abuse, abandonment, or neglect by a specialized state court, and a determination that the child is dependent on the state court, in order to merit SIJ consideration by a federal immigration agency or federal immigration court. However, because the Massachusetts Probate and Family Court generally does not have jurisdiction beyond age 18, some judges felt constrained from making such findings for individuals who are 18, 19 or 20.

Thus, in Massachusetts, there was a very small class of young people that would otherwise qualify for SIJ status, but could be barred from doing so since the Probate and Family Court would not make a finding because they were aged 18 to 21.  According to immigration law practitioners, anecdotally, the Probate and Family Court sometimes extended equity jurisdiction to hear these cases, but that was not uniform and judges had no guidance on the matter.

We activated our Amicus Committee to promptly review the case and were able to get their affirmative recommendation and approval from BBA Council within a week to add our voice to the amicus brief just in time for the November 4 filing deadline.  The brief, which we signed onto with a coalition of concerned organizations and individuals, argued that the Probate and Family Court had equity jurisdiction over youths up to the age of 21 to enter the findings needed to be eligible for SIJ status.  Specifically, it argued that the pathway to permanent legal residency for immigrant youths required the state courts to play an essential role and that the Probate and Family Court had equity jurisdiction over these cases.  First, it argued that the Court’s equity jurisdiction was not limited by statute and made the case that the Massachusetts Declaration of Rights supported this sort of equitable remedy.  The brief further argued that children who have been abused, abandoned, or neglected were dependent on the court to make such a finding since they had been mistreated and because such a finding was required to qualify for SIJ status.

On November 9, the SJC released its order, ruling in line with the brief – that the Probate and Family Court had equity jurisdiction to decide the case – and remanding to that court for further proceedings on an expedited basis, so that the appellant could have time to apply for SIJ status before her 21st birthday.  Four months later, the SJC released its full opinion, making clear that the Probate and Family Court has equity jurisdiction over youths between the ages of 18 and 21 for the purpose of making the necessary SIJ findings.

In addition to signing onto amicus briefs, we sometimes draft our own.  Two such cases that we’re especially proud of from this past year are Fisher v. Univ. of Texas (supporting affirmative action in higher education) and Comm. v. Wade (defending attorney-client privilege and access to post-conviction forensic testing). Of course, this requires even more time and work on our part.  Which brings us to…

Finally, we urge you to be flexible.  Especially when working with the Legislature, we only have so much control over the process and outcome.  We will do our best to streamline things as much as possible, but sometimes this means long waits to testify or last minute changes to legislation.  Or both, as was the case with our zoning reform bill, H3611, An Act relative to non-conforming structures.  We were very pleased when the Governor signed the bill into law on August 5, but that was only the final step in a long history.  The BBA has supported this bill in various forms since 1995, behind the leadership of its Real Estate Law Section, as a means of improving the clarity of Massachusetts zoning laws and thereby promoting economic and real estate development.

This bill amends Section 7 of Chapter 40A, concerning the enforcement of local zoning regulations. In particular, Section 7 spells out the circumstances under which violations of Chapter 40A, or a zoning by-law or ordinance, or a variance or permit, can lead to a “non-complying” building being ordered to be removed, altered, or relocated.  Prior to the passage of this bill, the law prohibited a municipality from taking such enforcement action more than ten years from the date after the commencement of the alleged violation.

However, Section 7 was incomplete, and did not explicitly provide that a building which had survived the statutory limitations period became a valid non-conforming structure.  As a result, if a structure which did not comply with current zoning laws was destroyed after ten years, it was not grandfathered under the zoning laws in effect when it was built, and it had to be rebuilt under new zoning requirements, which could be more restrictive or prohibitively expensive.

H3611 corrects this problem by granting legal status, subject to the provisions of G.L. c. 40A §6, as well as local ordinances or by-laws, to non-conforming structures that have survived the applicable statute of limitations.  This will provide clarity and thus offer protection to property owners and their lenders.  In limited circumstances, those structures, as they existed on the date they were erected or altered, would be deemed compliant with Chapter 40A (and any ordinance or by-law adopted in accordance with it) and thus valid, legally non-conforming structures.  By lifting the cloud of uncertainty created by the current law, H3611 will help real estate owners more freely convey or encumber property containing older non-complying buildings or building additions.

At the same time, the measure will have no adverse effect on municipalities, since it leaves unchanged their power to enforce their ordinances in this regard within ten years of the violation.  In fact, Section 3 of the newly enacted bill includes language intended to give municipalities an additional six months to take action on non-conforming structures that have been in existence for between nine and ten years as of the new law’s effective date in November.

But we could not have achieved this success without the devoted efforts of last year’s Section Co-Chairs, Hannah Kilson and Matthew Lawlor, along with Council member (and former Section Co-Chair) Michael Fee.  After the Real Estate Section Steering Committee reviewed the bill and decided to refile it around this time in 2014, we waited until mid-May 2015 for a Judiciary Committee hearing, at which Mike Fee testified.  In June 2015, the bill was reported out of the Judiciary Committee and referred to the House Committee on Ways and Means and shortly thereafter reported to the floor of the House, where it passed 151-0 before being delivered to the Senate Committee on Ways and Means.  There, the bill underwent further review and over the course of a number of emails, phone calls, and meetings, BBA staff and Mike Fee heard legislators’ concerns and worked with them to craft amendments in order to win the support of the full Senate for final approval.  On May 5, the bill was debated and amended on the floor of the Senate and ultimately passed unanimously.  From there it was back to the House, which in late July concurred in the Senate amendment, finally being laid before the Governor on July 26, 2016.  Ten days later it was enacted – with a few tweaks and 20-plus years after initial endorsement by the BBA.  It was a long road, but well worth it.

Hopefully this has given you a bit of a window into the work we do and how it happens.  Patience, flexibility, and nuance are all key aspects of successful policy development at the BBA.  With that, welcome back one and all – we hope to be seeing you around the BBA and look forward to working with you on policy issues!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBO Moves to Mandatory Online Registration for Attorneys

We want to give you the inside scoop on a major change being implemented this year that affects all attorneys in the state—that’s right, we’re talking about online registration with the Board of Bar Overseers (BBO).  Over the summer, you should have received an email that looked like this:

 

Mandatory Online Registration for Attorneys Goes Into Effect September 1, 2016

Dear Attorney:

The Board of Bar Overseers (BBO) has announced that all attorneys admitted to practice law in Massachusetts are required to submit their registrations online at massbbo.org effective September 1, 2016. Click here for the notice announcing the new requirement and answers to frequently asked questions regarding online registration. Here are the answers to some key questions that you need to know:

  1. Who is required to register online?
    All attorneys admitted to, or engaging in, the practice of law in this Commonwealth are required to register online, with certain exceptions.
  2. What are the exceptions?
    The requirement doesn’t apply to newly admitted attorneys and attorneys who are registered as “pro bono inactive” and “pro bono retired” statuses. Certain other categories of attorneys are also exempt, including those who are not admitted to practice in Massachusetts, but must register with the BBO. Otherwise, the Board will handle requests to be excused from the requirement on a case-by-case basis.
  3. When do I need to register online?
    You are required to register online if your registration expires onSeptember 1, 2016. If you register in the December, March or June cycles, you will have to register online when you next renew.
  4. What do I do if I have questions?
    Please see attached to read the answers to all of the frequently asked questions about the new requirement or call the Registration Department at (617) 728-8800between 9:00 a.m. and 3:00 p.m. or email at reg@massbbo.org.

“The change makes registration more efficient and cost-effective, and brings the process for attorneys in line with other professional boards that require online registration, including the Board of Registration in Medicine,” said Donna Jalbert Patalano, chair of the BBO and Chief of Professional Integrity & Ethics at the Suffolk County District Attorney’s Office. The Registration Department is ready to help attorneys with the new requirement. We thank you in advance for your compliance with this new initiative.

The information in this email is also available at massbbo.org.

Registration Department
Board of Bar Overseers
99 High Street
Boston, MA 02110
(617) 728-8800
reg@massbbo.org

 

The goal of the BBO is to have all attorneys register on-line.  They recognize, however, that some attorneys will need exemptions.  Attorneys can apply for an exemption by writing to the BBO and must include the following information with the request:

  1. BBO number;
  2. Attorney name (First, Middle Initial, Last, Suffix);
  3. Mailing, business email address and phone number;
  4. A statement under oath demonstrating good cause for the requested exemption;
  5. Documents supporting the request (e.g., from doctor or medical provider, guardian, designated power of attorney, etc.)

During the review of an exemption request, the BBO’s Registration Department will send the requesting attorney a paper registration form for the current cycle.  The BBO will then provide a determination on the exemption, and the requesting attorney will have a year to prepare to register via the required method in the next cycle.

However, we recommend that you make every effort to register online, and for good reason.  Though it may cost you a small extra fee for credit cards (the BBO is using the same payment platform as the City of Boston, which assures the highest level of security but has built-in, unavoidable credit card fees—but no additional fee for an electronic funds transfer), it will save everyone time and money in the long run.  Paper attorney registration is extremely labor intensive, and that comes with a cost.  Over the years, the Board has paid significant overtime and postal costs related paper registrations.  Online registration promises to greatly reduce that expense.  The savings are being passed on to lawyers, as this year the registration fee will again not increase.  That is also why agencies like the Board of Registration in Medicine moved to on-line registration, or OLR, a number of years ago.

For those who are still not convinced, we ask you to review Massachusetts Rules of Professional Conduct (MRPC) Rule 1.1 on competence, which states in relevant part that “competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”  Comment 8 to the MRPC explains further that maintaining competence includes “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

Thus not only is registering online more convenient and significantly more cost-effective than paper registration, but staying abreast with the technology used for OLR (by having an email address and using a computer) is also part of your ethical obligations as an attorney.  We hope that this shift in registration format goes smoothly and look forward to helping facilitate the continuing exchange of concerns and ideas between the BBO and the bar.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Update: Online Access to Court Records

As many of you know, we have been working on the issue of online access to court records for a while and have been very pleased with the outcomes so far.  On August 10, the SJC released Trial Court Rule XIV, which lays out uniform rules on public access to court records, including a number of recommendations proposed by the BBA through an online access working group and its Criminal Law, Delivery of Legal Services, Immigration, and Family Law Sections, such as:

  • The Committee’s recommendation to create a Standing Committee to regularly review the rules in light of recent developments and changes in technology and the addition of language to Rule 5(a)(1)(ii) specifically aimed at these sorts of updates, speaks directly to the second consensus point of the BBA’s Working Group (BBA Comments page 1) recommending periodic review of the database and technology.
  • Editing Rule 1(d) to note that all courts will maintain a public computer kiosk at the Clerk’s office is responsive to our note on inconsistencies in the proposed rules on this point (see BBA Comments p. 12).
  • Revising Rule 2(j)(1) to remove the outright ban on flash photography as recommended on page 8 of the BBA’s Comments given the prevalence and convenience of cell-phone scanners, which may require a small an unobtrusive flash.
  • Adding certain case records to the list of protected documents that cannot be made available online, including mental health reports and certain civil commitment and harassment and domestic abuse records (see BBA Comments p. 11).
  • Updating Rule 6 to clarify the process for court users to correct clerical errors in electronic dockets using language recommended on page 10 of our Comments.

The rule was released shortly after the Court faced some well-documented challenges (see: Courts Cut Online Access to Criminal Cases, Trial Court Fails Transparency Test in Attorney Portal Lockdown, To Block Data Harvesting, Trial Courts Lock Down Attorney Web Portal), having detected instances of unauthorized “data harvesting.”  While the situation was certainly unfortunate, the Trial Court used it as an opportunity to reaffirm their commitment to an open dialogue, following up with a meeting with bar leaders in mid-August.  As they explained, cutting access without warning was not their ideal solution, but was the best they could do under the circumstances, for fear that giving the public more notice would simply have led to more data harvesting until access was cut.

The meeting, led by Chief Justice of the Trial Court Paula Carey and Court Administrator Harry Spence, included a number of relevant Trial Court staff people working on the online access issue from lawyers who helped draft the uniform rules to programmers working to assure that the online platform balances convenience with privacy in order to comply with the law and uniform rule.  Attending were representatives from the bar, various Trial Court departments, and other state organizations involved in the justice system, such as the Attorney General’s Office, District Attorneys, and Committee for Public Counsel Services.

Chief Justice Carey explained that the Court currently (as of 8/17) has three Portals for access to court records:

  1. Intranet portal – available at a public kiosk in every courthouse. This offers full access to court records but requires one to actually go to the courthouse.  The following case types are available and all cases can be searched by name, docket number, or case type:
BMC25 Civil Case Types
District25 Civil Case Types
Housing6 Civil Case Types
Land8 Civil Case Types
Probate and Family15 Civil Case Types
Superior11 Civil Case Types, 2 Criminal Case Types (Indictment, Criminal Complaint), 1 Bail Petition Case Type

 

  1. Two portals provide remote access to court records through masscourts.org. They offer lesser access than the intranet portal, as detailed below:

a. Public Internet Portal – Civil cases can be searched by name, docket number, or case type, while criminal cases can be searched by docket number or date range, limited to a date range of 30 days or less:

BMCCivil, Small Claims, Summary Process, Supplementary Process
DistrictCivil, Small Claims, Summary Process, Supplementary Process
HousingCivil, Small Claims, Summary Process, Supplementary Process
Land8 Civil Case Types
Probate and FamilyEstates and Administration
Superior11 Civil Case Types, 3 Criminal Case Types (Indictment, Criminal Complaint, Probation Transfer)

 

b. Attorney Internet Portal – does not include a search function. Rather attorneys have access to their own cases after logging in.

BMCCivil, Small Claims, Summary Process, Supplementary Process
DistrictCivil, Small Claims, Summary Process, Supplementary Process, Criminal
HousingCivil, Small Claims, Summary Process, Supplementary Process
Land8 Civil Case Types
Probate and Family14 Civil Case Types
Superior11 Civil Case Types, 3 Criminal Case Types (Indictment, Criminal Complaint, Probation Transfer).  In addition, 12 docket entries are now available as images including judgments, findings, and endorsements on dispositive motions.

 

One of the major discussion topics was figuring out the needs and limitations for other potential portals, including a dedicated government portal to give greater access to certain state offices, such as the District Attorneys and Attorney General, fuller access to criminal cases in order to fulfill their needs as prosecutors, and a self-represented litigant portal to give them the ability to track their cases as an admitted attorney would.  The Court is also working on potentially adding access to a daily calendar listing.

Through it all, the Court stressed that they are very interested in hearing feedback from portal users and that online access is a continuously evolving issue.  (We thank those of you who got in touch with us about how the new set-up has affected you.  We shared these experiences with the Trial Court.)  In fact, some pieces are still not finalized, such as Section 5(b) of the online access rules regarding the attorney portal, which currently has only provisional SJC approval.  The Justices of the SJC asked the Chief Justice of the Trial Court to address any concerns that arise and to make a final recommendation no later than the end of October 2016 on whether changes should be made in this section.

Chief Justice Carey is also soliciting feedback from the Chief Justices of the various court departments who, under Rule 5, may seek the approval of the Chief Justice of the Trial Court to exempt otherwise publicly available case types, or to make additional electronic records or information remotely available on the Public Internet Portal.  Their proposals will be in the form of standing orders that will be subject to public comment.  The BBA looks forward to being part of this process and in the conversation on this issue generally.  As always, we will do our best to keep you up to date on the latest developments and our work on this complex issue.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Comments Eliminate Attorney Sanctions and, in Criminal Cases, Protect Identities

On August 10, the SJC released a new rule, SJC Rule 1:24, governing identifying information in court documents.  The rule is modeled on SJC guidelines that have been in place since 2009 and restricts parties and the courts from including certain personal identifying information in court documents.  It will take effect on November 1, 2016.

The BBA’s Criminal Law, Delivery of Legal Services, and Family Law Sections all commented on an initial draft of the proposed rule in October 2015.  Their comments appear to have accounted for at least a couple of major changes in the final version of the rule:

  • Section 6 – The Court removed language permitting non-redaction of the following information in criminal and youthful offender cases as suggested by the privacy concerns raised in our comments:
    • Social Security number
    • Driver’s license number
    • State issued ID card number
    • Passport number
    • Defendant’s parent’s birth name identified as such
  • Section 8 – In response to concerns expressed by some of the Sections, the Court clarified language permitting courts to sanction attorneys for non-compliance through “corrective action.” As the Sections suggested, the Court added accompanying comments to Section 8, and adopted the Sections’ proposals that:
    • a judge should consider, in determining whether to take such action, the harm to privacy/financial interests that has occurred, the nature and amount of information improperly disclosed, and whether the non-compliance was “willful”.
    • a judge be granted broad discretion in determining appropriate action, including the option of requiring the responsible party to correct the redaction and refile the document.

We thank you for all your work on these comments and the courts for including us in their review process. We are pleased to see that these comments are making a difference.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Is Part of the Discussion on Indigency Requirements

On August 6, the SJC released an amended version of SJC Rule 3:10 regarding indigency requirements for the assignment of counsel in criminal cases.  The Civil Rights and Civil Liberties Section Steering Committee, chaired by Philip Catanzano and Rahsaan Hall,  reviewed and submitted comments on the proposed amendments to this rule in April of this year.  Their comments focused on the challenges facing indigent individuals requiring counsel and the need for reasonableness and fairness in these rules.  They expressed specific concerns about procedures in the counsel appointment process including placing the burden of proof of indigency on the indigent individual.

The rule approved by the SJC includes a number of major revisions such as redefining indigency to include juveniles in child welfare proceedings or in the custody of the Department of Children and Families and 18-22-year-old young adults who are parties in permanency hearings.  The new definition removes the receipt of Medicaid as an automatic determinant of indigency, but permits a judge to consider it as a factor.  It also prohibits questioning parties about their immigration or citizenship status as part of the income determination process.  In addition, the amendments clarify the procedural process to be used in determining indigency and the imposition and collection of various indigency fees.  This page has a more detailed breakdown of the major changes.

According to a statement from the Justice of the SJC, the amendments are intended to update and clarify the rule.  They were proposed by the SJC Committee on Indigency, which was convened in January 2015.  The Committee reviewed recommendations from the Committee for Public Counsel Services (CPCS), which had convened a task force, including representatives from CPCS, the Office of the Commissioner of Probation, the Probate and Family Court and the Department of Revenue, to propose revisions to Rule 3:10.  Prior to this revision, the Rule had last been amended in 1993.

We are pleased to be part of this discussion and will keep you updated on the

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Bill Clarifies Zoning Law and Promotes Real Estate Development

On August 5, the Governor signed into law H3611, An Act relative to non-conforming structures.  The BBA has supported this bill in various forms since 1995, behind the leadership of its Real Estate Law Section, as a means of improving the clarity of Massachusetts zoning laws and thereby promoting economic and real estate development.  During the current legislative session we were pleased to receive help and support from Council member Michael Fee, who testified on the bill at a legislative hearing in May 2015, and Section Co-Chairs Hannah Kilson and Matthew Lawlor.

This bill amends Section 7 of Chapter 40A, concerning the enforcement of local zoning regulations. In particular, Section 7 spells out the circumstances under which violations of Chapter 40A, or a zoning by-law or ordinance, or a variance or permit, can lead to a “non-complying” building being ordered to be removed, altered, or relocated.  Prior to the passage of this bill, the law prohibited a municipality from taking such enforcement action more than ten years from the date after the commencement of the alleged violation.

However, Section 7 was incomplete, and did not explicitly provide that a building which had survived the statutory limitations period became a valid non-conforming structure.  As a result, if a structure which did not comply with current zoning laws was destroyed after ten years, it was not grandfathered under the zoning laws in effect when it was built, and it had to be rebuilt under new zoning requirements, which could be more restrictive or prohibitively expensive.

H3611 corrects this problem by granting legal status, subject to the provisions of G.L. c. 40A §6, as well as local ordinances or by-laws, to non-conforming structures that have survived the applicable statute of limitations.  This will provide clarity and thus offer protection to property owners and their lenders.  In limited circumstances, those structures, as they existed on the date they were erected or altered, would be deemed compliant with Chapter 40A (and any ordinance or by-law adopted in accordance with Chapter 40A) and thus valid, legally non-conforming structures.  By lifting the cloud of uncertainty created by the current law, H3611 will help real estate owners more freely convey or encumber property containing older non-complying buildings or building additions.

At the same time, the measure will have no adverse effect on municipalities, since it leaves unchanged their power to enforce their ordinances in this regard within ten years of the violation.  In fact, Section 3 of the newly enacted bill includes language intended to give municipalities an additional six months to take action on non-conforming structures that have been in existence for between nine and ten years as of the new law’s effective date in November.

We are proud of this latest development and commend the Section for its diligent work on this bill over the last two decades.  We look forward to advocating for more bills backed by your Section in the next legislative session.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Amicus Defends Attorney-Client Privilege and Access to DNA Testing

At the BBA, we pride ourselves on advancing the highest standards of excellence for the legal profession, facilitating access to justice, and serving the community at large – it’s all right there in our mission statement.   Rarely do we have the opportunity to take part in a single cause that covers all three goals, which is why we jumped at the chance to submit an amicus brief in the case of Commonwealth v. Wade (SJC-11913).

The case is of major importance to the BBA not only because it deals with those core issues – including access to justice and attorney-client privilege – but also because it stems from Chapter 278A, the state’s 2012 post-conviction DNA testing law, which the BBA played a pivotal role in drafting and enacting.  Specifically, it addresses whether a criminal defendant qualifies, under the Massachusetts post-conviction DNA testing law, for DNA testing of evidence from a crime he was convicted of in 1997.

Background – BBA Successfully Advocates for Post-Conviction DNA Testing Law

A brief history:

At issue in the case is interpretation of Chapter 278A, Section 3(b)(5), which permits new forensic testing if a defendant can show, inter alia, that the evidence has not already been subjected to the requested analysis.  It sets out five reasons why it would be justifiable for the requested analysis not to have been pursued, such that it should be pursued now.

(i) the requested analysis had not yet been developed at the time of the conviction;

(ii) the results of the requested analysis were not admissible in the courts of the Commonwealth at the time of the conviction;

(iii) the moving party and the moving party’s attorney were not aware of and did not have reason to be aware of the existence of the evidence or biological material at the time of the underlying case and conviction;

(iv) the moving party’s attorney in the underlying case was aware at the time of the conviction of the existence of the evidence or biological material, the results of the requested analysis were admissible as evidence in courts of the Commonwealth, a reasonably effective attorney would have sought the analysis and either the moving party’s attorney failed to seek the analysis or the judge denied the request; or

(v) the evidence or biological material was otherwise unavailable at the time of the conviction.

These prongs are nearly identical to the corresponding recommendation contained in Getting It Right.

The Basis for Wade

The trial judge in the Wade case interpreted Ch. 278A Section 3(b)(5) to require a lawyer to prove all of the prongs, rather than applying the disjunctive reading, as our brief argues and we believe the Legislature intended, that a lawyer must prove only a single prong.  Furthermore, the trial judge interpreted the fourth prong to require the attorney to show the “primary cause” or “actual reason” that DNA testing was not pursued at trial, applying a subjective standard to the “reasonable attorney” test.  Based on this interpretation, the trial judge required the defense attorney to violate attorney-client privilege by testifying on why the now requested DNA testing was not sought at the initial trial.

Our amicus brief, authored by a team from K&L Gates including former BBA Council member Mike Ricciuti, Kathleen Parker, and Patrick McCooe, argues that the fourth prong calls for an objective standard and that the law does not actually require a “primary cause” finding – the test is not to determine why the defendant’s attorney did not seek a different type of DNA testing at the time of trial, but rather, whether a reasonably effective attorney would have sought the requested analysis.  Thus, the judge erred in violating attorney-client privilege, and, in doing so, frustrated the purpose of the law in a way that could potentially chill future claims, denying wrongfully-convicted individuals a pathway to establish their innocence.

Oral Argument

The SJC heard oral argument on January 11 (watch the video here).  The Justices pushed both sides to explain where to draw the line on protecting attorney-client privilege.  Counsel for the defendant argued, much like our brief, that an attorney should never have to violate the privilege to testify, because the law’s standard is objective, asking only what a reasonably effective attorney would do, and not whether the attorney in a particular case was or was not reasonably effective.  In her words, “the piercing of the attorney-client privilege was extreme judicial overreaching. It was excessive.”  While she conceded that it would be appropriate for the court to ask the lawyer about his or her decision making, the “attorney-client privilege should be sacrosanct.”

Counsel for the Commonwealth took the opposite view, arguing in line with the Superior Court judge that the correct reading of the statute requires defense counsel to name the “primary cause” why testing was not pursued and that a judge would be justified in requiring them to speak on the issue regardless of privilege.  Furthermore, the Commonwealth “can always” call counsel to testify as to their reasoning in not getting then-available testing, even if the defendant is not claiming that the a reasonably effective trial attorney would have sought testing (see clause (iv) above).

The Decision

On July 29, the SJC issued its 6-0 decision (Chief Justice Gants was not present).  We were extremely pleased to find that it held in line with the arguments of our brief, that it was an abuse of discretion for the trial judge to deny Wade’s motion for DNA testing based on his misinterpretation of the statute requiring the attorney to demonstrate the “primary reason” why he did not seek the requested analysis.

The decision makes clear that the statute statue’s plain language means each of the five prongs in the statute “provides a moving party with alternate pathways to establish that he or she is entitled to the requested [DNA] analysis . . . . Indeed it would be nonsensical to attribute a conjunctive meaning to the word “or” as used in this section… ” (p. 12-13).  On the trial judge’s requirement of finding the “primary reason” or “actual reason” why DNA testing was not pursued at trial, the Supreme Court decision explains that this language does not appear in the act, and there is no other language indicating such a requirement (p.15).  Instead, the statute’s “reasonably effective attorney” test “is an objective one” (p. 16).  Thus, the trial judge erred when finding that attorney-client privilege had been waived, forcing trial counsel to reveal privileged communications, and denying Wade’s motion to strike those answers.  The “reasonably effective attorney” test “does not require testimony or an affidavit from trial counsel” (p.20).

The court reversed the motions denying scientific testing and the motion to strike the protected attorney-client privileged testimony and remanded the case to the Superior Court for an order permitting the requested DNA testing.

The outcome was truly a victory for access to justice and the practice of law.  We are proud to have played a role in helping to protect access to post-conviction DNA testing, a major tool in overturning wrongful convictions, and safeguarding one of the most important tenets of legal practice in attorney-client privilege.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Final FY17 Budget Update

On July 31, the legislative session came to a close, complete with a few overrides, by way of a two-thirds vote in each branch, of Governor Charlie Baker’s line-item vetoes to the budget that legislators had sent him (H4450).

In signing the budget on July 8, amid news that the Commonwealth could be facing as much as a nearly $1 billion budget deficit, the Governor exercised his authority to target many legislative appropriations for cuts amounting to $256 million.  The below numbers reflect the final state for the FY17 budget, after the Legislature reversed a number of those cuts, one by one, in the final days of session.

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
  • FY17 Final: $18,000,000

We are thrilled that the FY17 budget included an extra $1 million over last year’s figure in funding for legal services—a top BBA priority—and grateful to the Governor for not only sparing the MLAC line-item from his veto pen but also highlighting this increase in his budget message.  Given the extremely challenging budget situation, this increase is truly remarkable and demonstrates a clear commitment from both legislators and the Governor 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
  • FY17 Final: $638,940,097

It is unfortunate that this final number was not higher, but we nevertheless greatly appreciate that the Legislature showed its strong support for the judicial branch by overriding the Governor’s vetoes on eight of sixteen Trial Court line-items, restoring roughly $6 million of the $6.8 million in cuts.  Failure to do so would have placed the courts in an alarming position, so we are grateful to legislators for making this a priority during the end-of-session crush of business and despite tough fiscal constraints.  We also note that the Legislature overrode vetoes for two of the four line-items funding the Supreme Judicial Court, restoring over $100,000 in funding for the Commonwealth’s highest court.

The next few years will be very important for court funding in order for the courts to continue to provide the highest level of justice for the people of Massachusetts.  Continued underfunding of the courts would exacerbate a number of challenges, from aggravating long-standing 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
  • FY17 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 $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 include it.  So we will back making the case for Housing Court expansion in the new session, starting next January.  We look forward to the FY18 budget process and, as always, urge you to help us make your voice heard at the State House.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association