BBA Amicus on the Practice of Law and Attorney Sanctions

It’s been a little while since we last updated you on our Amicus Committee.  As of a few months ago, they were busy discussing the merits of an amicus brief arguing for a right to counsel for indigent parents of minor children in private guardianship actions.  They ultimately decided to recommend that the BBA sign on to a brief supporting this right, which also quoted from three different BBA working group and task force reports, including our Investing in Justice report on civil legal aid.  We did sign the brief, and the SJC recently adopted our position, as BBA President Julia Huston explained in her most recent blog post.

Since then, the BBA’s Amicus Committee has been extremely busy, most notably with the case of Wong v. Luu (SJC No. 11789).  Though the facts are complex and often somewhat unclear from the record, the appeal arises from two orders issued by a Superior Court Justice for sanctionsof $239,928.40 against an attorney in a case involving the attempted sale of a chain of Boston-based Asian food markets.  After lengthy discussions, the parties claimed to have reached a framework for settlement.  However, at a later date, certain parties informed the court that the settlement had collapsed and pointed the finger at an attorney involved in the settlement who had made a written solicitation to all known trade creditors of the grocery chain informing them of his having achieved a 100-cents-on-the-dollar recovery for his client, and inviting them to contact him if interested in retaining his services.

These other lawyers sought sanctions, claiming that the solicitation caused their clients to rescind their settlement agreement.  The Court agreed and, following oral argument where no witnesses appeared, the Superior Court Justice issued the aforementioned monetary sanction, explaining that the attorney had acted unreasonably, delayed the administration of justice, wasted court and attorney resources, and breached his duties of good faith and fair dealing to opposing counsel, and his duty of candor to the court.  As a result, the Justice concluded, the Court had been materially prejudiced.

The sanctioned attorney appealed and in December 2014, the SJC granted direct appellate review.  Shortly thereafter, the SJC issued a formal request for amicus briefs to address: (1) whether the Superior Court judge exceeded his authority by imposing the fine on the grounds that the sanctioned attorney had interfered with an emerging global settlement through his actions and (2) whether the judge erred in assessing sanctions without first conducting an evidentiary hearing, and without adherence to any existing standard.

The Amicus Committee was first contacted about this case in late December 2014.  After thorough deliberation and input from a number of the attorneys involved in the litigation, as well as from members of the BBA’s Litigation and Civil Rights and Civil Liberties Sections and Ethics Committee, the Amicus Committee decided to recommend filing an amicus brief.  The Committee concluded that the case raised serious concerns regarding the practice of law, specifically, whether an attorney could be sanctioned for violating an assumption of confidentiality and whether a full evidentiary hearing should be held before a judge can issue sanctions, especially sanctions of this magnitude.

The Amicus Committee, along with the BBA Executive Committee and Council, all worked closely with their chosen drafter, Debra Squires-Lee, Sherin and Lodgen LLP, to draft the BBA’s brief.  The record in this case is a bit tangled, and it took a lot of discussion to identify which issues the brief should focus on, but we couldn’t be happier with the result.  The brief requests clarification from the SJC on the scope of a Superior Court’s inherent authority to sanction an attorney for out-of-court conduct that was not in violation of a court order. In addition, it argues that, before resolving disputed facts in such cases, a trial court should ordinarily conduct an evidentiary hearing to try to establish a basis for finding prejudice to the administration of justice and bad faith.

BBA leadership unanimously approved the brief and it was filed on February 13.  Oral argument is scheduled for March 3, and we hope that the SJC will find our brief helpful as it considers these complex issues.  As always, we will keep you posted on the latest developments.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association