Monthly Archives: October 2016

Partners in Justice: The Bar and the State of the Courts Address

SJC Chief Justice Ralph Gants was a model of efficiency last Thursday, managing to attend our Annual Meeting Luncheon where he saw our Amicus Committee honored for 20 years of outstanding advocacy and heard a keynote address from his friend and former law school classmate Professor David Wilkins shortly before giving his annual State of the Judiciary Address in the Great Hall of the Adams Courthouse.  His speech created some headlines (see e.g. Boston Globe, CommonWealth, WBUR, Mass Lawyers Weekly) with an announcement that the Courts would be launching a study on racial disparities in imprisonment statistics.  However, that was only a small fraction of the substance covered at the event, which also featured speeches by Chief Justice of the Trial Court Paula Carey and Court Administrator Harry Spence.  Between the three addresses, the speakers discussed how the Courts have developed and changed in recent years and provided a road map for where they are headed.  We are excited for the future prospects in store as these dynamic leaders have made tremendous strides in recent years to improve legal practice and access to justice.

Reflecting on the Last Four Years

Court Administrator Spence, giving his last address at this event before his five-year term ends in April, spoke about the effectiveness of his collaboration with Chief Justice Carey.  The Trial Court has indeed made great strides under their leadership including:

  1. Installing MassCourts in every courthouse to serve as a unified case management system, the first step to a “fully automated digital operation,” which the courts are aiming to complete by the end of 2019.
  2. Adopting evidence-based practices and risk assessment tools in the Probation Department.
  3. Combatting the opioid crisis through drug courts whose graduates are nearly two times less likely to recidivate than defendants in drug-related cases in other courts.
  4. Opening six court service centers to assist pro se litigants.
  5. Improving the capacity and capabilities of the Trial Court’s Facilities Management and Security Departments to assure safety and security in courthouses that continue to serve the public despite a severe shortage of capital investment.
  6. Implementing professional hiring and review procedures to assure highly qualified and professional court staffs.

Spence acknowledged the culture that paved the way for these and other changes, describing the 6,300 court employees as a “community that is committed to working in partnership with each other to improve the quality of justice.”  He described the Court’s commitment to constant improvement, driven by data gathering and analysis, and the increasing distribution of leadership points within what used to be a purely hierarchical structure.

We applaud Administrator Spence for his remarkable devotion to these causes and the incredible strides he has helped the Trial Court take in a short period of time.  We look forward to welcoming his replacement in the spring who we hope will meet the incredible expectations Spence has established for the position.

Looking to the Future

Chief Justice Carey spoke about her hopes and goals for the coming years.  Foremost, the Courts will focus on four “umbrella themes or principles:”

  • Continuous improvement
  • Racial and ethnic disparities
  • Public trust and confidence, and
  • The user experience

She explained that the Trial Court will be looking at its policies and practices to examine how decisions are made in cases and court administration in order to improve the administration of justice and ensure public safety.  This includes a number of initiatives aimed at increasing access to justice such as:

  • Expanding Court Service Centers which help pro se individuals navigate the court system.
  • Promoting the increased use of limited assistance representation, whereby clients can hire attorneys to assist them with a select part of their case.
  • Continuing to develop the language access plan to assure that everyone can read and understand important forms and documents.
  • Examining court fines and fees and the impact they have on certain populations.
  • Supporting the work of Specialty Courts which help defendants address the issues underlying criminal behavior in order to reduce recidivism.

The Chief Justice is also thinking about the court user experience, implementing trainings on domestic violence for judges, clerks, and court staff and the “Signature Counter Experience” program for all clerks’ offices which aims to instill best services practices for interactions with litigants, lawyers, law enforcement and other court house guests.

She closed by applauding the bar for its continued support and collaboration.  We look forward to continuing these efforts and look forward to all of the positive changes she has in store for the Trial Court.

The SJC Chief Justice Weigh-In

SJC Chief Justice Ralph Gants combined the two views, looking at the Court system today, where it’s been, and where he hopes it will go.  He began by acknowledging recent major changes as three justices were replaced with new appointees.

Next, he followed-up on a major issue from his 2014 address, the creation of expanded options aimed at streamlining civil litigation across court departments.  In the last year, the Superior, District, Boston Municipal, Probate and Family, and Land Courts all assembled working groups that proposed rules and practice changes that have the potential to save lawyer’s time and client’s money with more efficient practice.  The BBA played an active role in many of these, offering comments (read our recent blog posts on our comments to the Land Court and Superior Court).

Chief Justice Gants noted that the SJC just approved the final Superior Court rule changes that would allow parties to request an early nonbinding judicial assessment of a case, a case management conference, the immediate scheduling of a trial date, earlier pretrial deadlines, limits on discovery, and other opportunities to reduce the cost of litigation and obtain a quicker resolution.  It is now up to you all to take advantage of these changes.  In conversations at our Steering Committee meetings, we commonly heard that though people might not have articulable concerns about certain of these measures, they were skeptical that lawyers would use them (or that their clients would stand for them).  We hope you will give them a second look and try to incorporate them into your practice.

The Chief then turned his attention to access to justice issues.  As mentioned above, he made his biggest media splash by unveiling a plan to have Harvard Law School Dean and member of the BBA Statewide Task Force Expand Civil Legal Aid in Massachusetts, Martha Minow, lead a team to lead an independent research team to explore reasons for racial and ethnic disparity in the incarceration rate in Massachusetts.  While we are certainly excited at the findings of this report, the Chief Justice also covered a host of other access to justice issue of similar import.  He spoke about how the Courts will continue to examine the fines and fees associated with the justice system to make sure that they are not overburdening those who can least afford it.  The Courts will also attempt to continue expanding Court Service Centers to assist pro se litigants and Housing Court Statewide (with our help) to assure that the entire state can access this valuable legal resource.

As always, we look forward to continuing to work with the courts on these and other initiatives, and in particular, we share the Chief Justices’ enthusiasm to review the forthcoming criminal justice reform proposals borne out of the Council of State Governments’ comprehensive study of Massachusetts criminal justice policies.  Quite simply, we will strive to live up to the title he bestowed to the entire bar, to be the Courts’ “partner in the pursuit of justice.”

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Applauds SJC for Enhancing Attorneys’ Roles in Judicial Ethics

Yesterday, the BBA submitted comments to the SJC voicing its support for proposed amendments to SJC Rule 3:11, which establishes and governs the Committee on Judicial Ethics (CJE).  This rule underwent substantial changes last year, in which the BBA was involved.  At that time, we submitted a letter noting our support for the changes and also requesting some clarifications for how certain procedures would run.  The current proposed revisions seem to be in line with that request, specifically shedding light on processes and expanding privileges for how bar associations can be involved in seeking ethics opinions and advisories.

The 2015 revisions to SJC Rule 3:11 laid out a multi-tiered system of ethics advice, whereby judges can request Informal or Letter Opinions from the CJE and the SJC has superseding authority to issue Ethics Advisory opinions on its own initiative or at the request of a judge, lawyer, or group of lawyers or judges.  The current proposed revisions extend the right to request Informal Opinions to organizations or associations of lawyers or judges.  This means that bar associations will now benefit from an expanded ability to request opinions related to judicial ethics questions and at multiple levels, allowing for greater opportunity for review of any one issue.  We are confident that this proposed change will benefit the profession and practice of law in Massachusetts and thank the SJC for their thoughtful response to our 2015 letter.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Amicus Advocates for Resolution in Dookhan Scandal

On Monday, the BBA filed an amicus brief in Bridgeman v. District Attorney (SJC-12157), the latest case pertaining to the misconduct of Massachusetts Department of Public Health’s Hinton Drug Laboratory chemist Annie Dookhan.  Our brief, written by our Amicus Committee Co-Chairs, Elizabeth Ritvo (Brown Rudnick) and Anthony Scibelli (Barclay Damon) argues for a global solution, that the Court should vacate, without prejudice, the adverse disposition on all drug related charges where Dookhan was the primary or secondary chemist, but that the Commonwealth should be granted a period of at least one year, or longer as the Court deems appropriate, to allow the District Attorneys to re-prosecute individual charges.  Any charges not re-prosecuted within that time period should be automatically dismissed with prejudice and further prosecution barred.

This solution places the burden on the Commonwealth, rather than on Dookhan defendants, in addressing the adverse disposition affected by Dookhan’s misconduct.  It is based in principles central to the BBA’s mission – access to justice and the fair administration of justice.

Background

In 2012, stories of misconduct at the Hinton Drug Lab first broke.  Soon, news stories revealed that Dookhan had engaged in criminal misconduct regarding drug evidence seized in connection with thousands of Massachusetts state and federal criminal cases.  Specifically, Dookhan mishandled drug samples, failed to conduct tests on samples she nevertheless labelled as controlled substances, contaminated unknown suspected drug samples with known drugs before running tests to identify those unknown drugs, falsified evidence logs and reports regarding drug testing and quality control steps regarding laboratory equipment, and bypassed mandatory office procedures.

In December 2012, Dookhan was indicted on 27 criminal counts, including obstruction of justice, tampering with evidence, and perjury.  In November 2013, she pled guilty to all 27 counts and was sentenced to 3 to 5 years in prison, from which she was recently released.  In the meantime, the entire justice system has struggled with how to handle the fallout.  Dookhan could not identify the specific cases where she engaged in all of this malfeasance, and it has been impossible to independently determine the specific cases at issue.  Some affected cases involve multiple defendants; some defendants have multiple affected cases.  The most recent numbers submitted by the ACLU and CPCS indicate that there are about 24,000 outstanding cases with adverse dispositions (conviction, plea, CWOF) where Dookhan was either the primary or secondary chemist.  These numbers were derived from lists submitted by all seven of the DA offices that prosecuted Dookhan cases.  These cases involve about 18,000 individual defendants (some have multiple cases).

Effect on the Justice System

In response to the Dookhan scandal, in October 2012, the Chief Justice of the Superior Court assigned specific judges in seven counties to preside over special “drug lab sessions” to deal with post-conviction filings by defendants who had cases where Dookhan worked on controlled substance samples.  From October 15 to November 28, 2012, the judges presiding over the drug lab sessions held 589 hearings, which placed a significant burden on the courts.  In November 2012, the Chief Justice of the Superior Court also appointed five retired Superior Court judges as “special judicial magistrates” to preside over post-conviction proceedings regarding the Dookhan scandal.  The enumerated powers of these special magistrates included handling arraignments, setting bail, supervising discovery, and conducting hearings on motions.  Over six weeks in the fall of 2012, Superior Court judges held 589 hearings, and in the following three months, special magistrates held over 900 hearings.  These hearings were targeted to handle cases of affected individuals who were still in custody at the time, and primarily dealt with motions to either vacate or stay sentences.  However, these numbers (though very significant and reflective of the hard work of the magistrates), involved only a relatively small fraction of the cases affected by the Dookhan scandal.  The outcomes of these cases were mixed, with some defendants receiving stays and vacated convictions, others not, and some cases pleading out.

As these cases started to be litigated, several appellate decisions by the SJC created at least a partial framework for resolving the cases.

In Commonwealth v. Charles, 466 Mass. 63 (2013), the SJC resolved certain questions concerning the powers of the special magistrates.  For example the SJC held that the special magistrates did not have authority to allow a defendant’s motion to stay the execution of his sentence pending a motion for a new trial, but could report findings of fact and law to a judge of the Superior Court (who did have such authority).  Also, special magistrates could conduct plea colloquies and report findings about the voluntariness of the proposed pleas (and the factual basis for the pleas) to a judge of the Superior Court.

In Commonwealth v. Scott, 467 Mass. 336 (2014), the defendant pled to sufficient facts and entered into a plea agreement with the Commonwealth.  He was charged with possession of cocaine, and the Hinton drug lab certificate identified the controlled substance as cocaine.  After the Dookhan scandal came to light, the defendant filed a motion to vacate his plea, which was granted by the lower court.  The Commonwealth appealed, arguing in part that the defendant has an obligation to show that there was specific misconduct in his case, i.e., that Dookhan had falsified his test results in some way.  In response, the SJC held two things. First, in any case where Dookhan signed a drug certificate as either the primary or secondary chemist in a defendant’s case, the defendant is entitled to a conclusive presumption that Dookhan’s misconduct occurred in that case, that it was egregious, and that it is attributable to the Commonwealth.  Second, the defendant must still demonstrate a reasonable probability that knowledge of Dookhan’s misconduct would have materially influenced his decision to tender a guilty plea.  The defendant’s case was remanded for proceedings on the second issue.  In short, the SJC established a global standard for finding misconduct, but still required a specific showing that knowledge of the misconduct would have influenced his decision to plea.

In the first Bridgeman case (Bridgeman v. Suffolk DA, 471 Mass. 465 (2015)), the SJC established other principles to guide resolution of the Dookhan cases.  In that case, the petitioners filed suit asking the SJC to protect defendants challenging an adverse disposition in any Dookhan case from facing more severe charges or greater punishment.  In response, the SJC held that “a defendant who has been granted a new trial based on Dookhan’s misconduct at the Hinton drug lab cannot be charged with a more serious offense than that of which he or she initially was convicted under the terms of a plea agreement and, if convicted again, cannot be given a more severe sentence than that which originally was imposed.”  However, the SJC specifically declined to enter a “global remedy” under its general superintendence powers, and declined to vacate all the Dookhan adverse dispositions.

Bridgeman II

We are now in the second Bridgeman case, SJC-12157.  It was born out of issues regarding a notice sent to all Dookhan defendants.  In August 2016, the various DAs sent the SJC, CPCS and the ACLU a notice it intended to send to all Dookhan defendants with an adverse disposition.  CPCS did not agree with this notice, or its wording.  This was a highly contentious issue and CPCS contends that the notice was “so poorly drafted that it will have the predictable consequence of limiting individual cases to a bare minimum. . . It is a poison pill.  Anyone who receives it could be misled, confused or both.”  Their opening brief in Bridgeman II lays out eight “peculiarities” with which it takes issue, including confusing language, lack of important information about rights of defendants and the outcomes of prior cases in the Dookhan scandal limiting their potential exposure, a requirement to contact the DAs for more information even though the DAs are adverse to the defendant, and that the included Spanish translation is unintelligible.

In response, CPCS and the ACLU filed a single justice petition on behalf of Bridgeman and others, asking that the single justice reserve and report the following question to the Court – “whether all cases involving misconduct by Annie Dookhan should be dismissed or subjected to a court imposed deadline.”  This is the second Bridgeman case (SJC-12157).  In short, the petitioners are once again seeking a global remedy.  (The petitioners also filed an emergency motion to stop the notice from issuing, but that motion was denied).

The single justice reserved and reported this matter to the full SJC with oral argument scheduled for November 8.  On September 16, the SJC requested amicus briefs on:

Whether the persons who were convicted of drug-related charges and in whose cases former Hinton Drug Lab Assistant Analyst Annie Dookhan signed the certificate of drug analysis as the analyst, who are collectively referred to as the “Dookhan defendants,” are entitled to a comprehensive remedy, including, whether all cases involving misconduct by Dookhan should be dismissed or subjected to a court-imposed deadline.

BBA Amicus Brief

On October 24, the BBA filed an amicus brief in the case calling for a global solution placing the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any cases that have not been re-adjudicated since 2012, when the scandal first came to light.  If cases are not re-prosecuted within that time period, the brief calls for their dismissal with prejudice, barring further prosecution.

The brief explains that the BBA’s interest in the case is twofold: to facilitate access to justice for all defendants in criminal cases and to ensure the timely, fair, and efficient administration of justice.  Not only will this global solution secure justice for the defendants, but it will also start to relieve the significant burden on the justice system, currently facing the prospect of addressing more than 20,000 unresolved cases individually.

We advocate that the burden in this case must rest with the Commonwealth to re-prosecute certain cases rather than on individual defendants to come forward because the widespread and systemic nature of Dookhan’s misconduct implicates public confidence in the government and justice system.  Furthermore, we express a number of concerns about the current proposition of sending notice to impacted defendants, requesting action by those wishing to challenge their adverse dispositions including:

  • The attenuated timeframe of the case makes the prospect of sending notice to individual defendants unreliable.
  • Even if they should receive adequate notice, it is likely many defendants would not understand their rights or what course of action they should take in challenging their adverse dispositions.
  • Defendants clearing the first two hurdles may still face significant hurdle in challenging their cases because the Committee for Public Counsel Services (CPCS) will struggle to provide attorneys for each of their cases (see CPCS/ACLU Bridgeman Brief, pp. 24-32).

While the Courts have worked admirably and diligently to handle these cases individually, now that the full and pervasive scope of Dookhan’s misconduct is more fully understood, it is clearly an exceptional circumstance meriting the SJC’s use of its extraordinary powers to impose a global remedy.  We conclude that “the net result of the current process will be that a certain and significant number of adverse dispositions that were obtained by ‘egregious’ misconduct attributable to the Commonwealth will remain intact.  Thus, by default, many Dookhan defendants will continue to suffer the consequences of ‘egregious’ government misconduct and, absent a global remedy, such misconduct will not be remedied or abated in any systemic or comprehensive way.”  This outcome is unacceptable – it is inconsistent with due process and undermines the integrity of the criminal justice system.

We look forward to watching oral argument on November 8 and a decision from the SJC in the following months.  We will keep you updated on the latest developments in this case and the work of our Amicus Committee.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Legal Trios: Reflecting on the Legal Profession with Prof. David Wilkins at Annual Meeting

david-wilkins

We were thrilled to welcome Professor David Wilkins, Vice Dean for Global Initiatives on the Legal Profession and Director of the Center on the Legal Profession at Harvard Law School, to provide the keynote speech at Thursday’s Annual Meeting, one of the largest bench-bar events in Massachusetts.  Wilkins is well known for his research on the impact of globalization of the legal market, diversity in the profession and the various career paths of attorneys.  His speech was engaging, and at times funny, depressing, and hopeful.  He demonstrated a remarkable understanding of the trajectory of the legal profession and laid out a number of issues (often in threes) requiring the attention of attorneys, law firms, legal educators, and the public at large.

Where We’ve Been

Wilkins began with a look back at recent developments in the law.  Since 2008, the outlook has been less than optimistic, with scholars talking about “the death of Big Law” and “the end of lawyers.”  However, Wilkins encouraged attendees to expand their scope and think not just about attorneys in private practice but also the entire legal system, including underfunded and understaffed courts, state and federal agencies facing budget cuts, and legal services that are far from being able to meet the needs of their constituencies.  These shortcomings in legal jobs are accompanied by myriad systemic challenges, including mass incarceration, struggles with individual freedoms and rights, and questions about the political process.  In addition, law schools are facing lower enrollment and lower job placement rates.

So the question, Wilkins explained is, are these problems part of a paradigm shift or simply a temporary correction that will soon re-adjust?  And the answer he exclaimed with comic timing is, “Who knows?!”  It’s too early to tell for sure, but it seems likely that a lot of these changes are here to stay and may have been coming more gradually anyway, but were simply pushed into high gear by the recent financial crisis.

Where We Are

These changes are not unique to the legal profession, either.  In fact, they have proliferated in nearly all professions and daily life.  Wilkins described three major developments:

  1. Globalization of the economy and geographical shifts, with increasing focus on emerging markets in developing countries.
  2. A rise in the speed and sophistication of information technology.
  3. The blurring together of traditional knowledge, whereby things that used to be considered separate and distinct are now inextricably linked. He highlighted a few examples, such as public and private spheres, global and local impacts, and more relevantly, law and business.

The law is a lagging, not a leading indicator of change, which is unsurprising given its focus on history and precedent.  Unfortunately, that can also make it slow to recognize change, and even slower to react to it.

Trends

Wilkins identified three areas where the legal profession is currently undergoing changes.

  1. Practice is shifting from mostly solo and small firm practice to large law firms. At the same time, the size of public legal offices such as attorneys general is growing, as is the number of attorneys employed by the courts.  In short, the law is becoming an “institutionalized profession.”  However, the ethical rules and other aspects of practice are still geared towards the historic practice settings and styles.
  2. There is increasing diversity. Though diversity may still lag far behind where we’d like it to be, the legal profession is far more diverse now than it has ever been.  In particular, the number of women in the law and in law school has greatly increased, but legal practice and the typical career trajectory are still laid out best for men who have a homemaker wife.  Furthermore, global diversity continues to increase, as well as the need for interaction with non-lawyers.
  3. Competition is intense, not only amongst lawyers and firms, but also in the pipeline of smart students to become future lawyers. Wilkins discussed the need for retaining the core integrity of the profession in order to continue to attract talented people who want challenging and rewarding service careers, while also considering changes to modernize practice and compete with other fields attracting top students.  He highlighted two main points to consider:
    1. Law is a human capital profession, done by people for people, even if those people work for huge corporations, so lawyers need to think about how they recruit, train, develop, and relate to people.
    2. The need for lawyers today is greater than ever because of globalization and the increasing complexity of the world. However, this also requires lawyers to understand the intersection of law and other issues.

Where We’re Going

Wilkins closed with three issues for consideration going forward:

  1. Access to Justice – There are not enough lawyers to serve all of those in need, largely because the expense of training and developing lawyers prices many out of being able to afford legal services.  Therefore, we need to be open to new ways to more efficiently develop legal skills and provide legal services.  This includes increasing the use of technology, expanding the role for paraprofessionals, and investing in more resources for self-help.
  2. Access to the Legal Profession – We need to increase diversity and strive for true inclusion by shifting our perception that individuals need to change to fit within existing institutions to changing the institutions themselves and the assumptions at their core that inhibit maximization of talent.
  3. Access to the Rule of Law – Lawyers need to move beyond the law itself. They need to reach across boundaries, not only within the legal profession, but also beyond to legal education and non-lawyers.  Wilkins provided another trio – the three roles lawyers need to play:
    1. Astute technicians – Lawyers already do a good job of this – being competent in the law and understanding complex issues.
    2. Wise Counsel – This one is often more challenging, requiring lawyers to combine principles of law and morality.
    3. Leaders – This one also presents challenges, whereby lawyers have to go beyond being merely advisors but to also be the agents of change they want to see.

Wilkins ended with a plea for lawyers to work together.  The only way we can preserve the core principles of the legal profession and excellence in practice, while at the same time advancing to become more diverse and provide more service to broader constituencies is by coming together to effectuate systemic change.  We at the BBA hope to be at the forefront of this movement and hope lawyers will continue coming together at 16 Beacon to discuss and work on these essential issues and we thank Professor Wilkins for leading this discussion.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Carol Starkey on 20 Years of Amicus

Ever since my first meeting at 16 Beacon Street nearly 16 years ago, the Boston Bar Association has been an invaluable resource for me professionally.

As lawyers, we are all in pursuit of professional excellence.  But we also need support and intellectual nourishment outside of our firms or organizations in order to be, and remain, successful in this competitive industry.  And for me, those resources always have been found at the BBA.

In addition to the rich educational programming and the ability to develop a strong network, perhaps what is most exciting about the BBA as an organization is its capacity to bring some of the brightest, most powerful people in the legal industry together, regardless of where they practice or how they identify themselves, in order to help solve problems affecting all of us.

Over my nearly 3 decades of practice, I have experienced how much we can do – as lawyers – when we step outside our own individual practice silos and work together on common issues in the profession.  For me, nothing demonstrates this more clearly than the work of the BBA’s Amicus Committee.

If you’ve been following Issue Spot’s coverage of the Amicus Committee this month, you know that through this important group of volunteers, the BBA has weighed in on some of the most important – and sometimes controversial – issues of our time.

In 2002, we submitted a brief in support of marriage equality in Goodridge v. Department of Public Health, a landmark case which helped paved the way for equality across the nation.

In 2012 – and again in 2015 – the BBA filed a brief in Fisher v. the University of Texas, supporting diversity in higher education as a means of increasing diversity in the legal profession.

The Goodridge and Fisher cases demonstrate that when the BBA takes a position on an issue – like marriage equality or diversity in higher education  – it is not just words to be taken lightly, but a firm belief that is reflected in our core values.

In addition to the issues that attract a national spotlight, our Amicus Committee has allowed the BBA to argue successfully for some of the bedrock principles that affect the very core of what it means to practice law.

In keeping with our long-standing advocacy on behalf of access to justice, in 1990 we filed a brief regarding House Bill 5858 An Act Establishing the Economic Stability and Recovery Compact arguing that a tax on legal services would infringe upon each individual’s ability to, in the words of the Massachusetts Constitution, “obtain right and justice freely, and without being obliged to purchase it.”

And just last year, the BBA filed an amicus brief in Commonwealth v. Wade, a case in which we argued there had been a misinterpretation of a new post-conviction forensic testing law – a law that the BBA helped create – resulting in a forced waiver of attorney-client privilege.  The SJC agreed with our brief, clarifying how the law should be read and protecting the confidence of attorney-client communication.

Over the years, courts have, time and again, cited BBA amicus briefs, both during oral arguments and in their written decisions.

The dedication and talent of our Amicus volunteers have helped shape the BBA into an organization whose opinion matters. We are the ones the legal community turns to – and listens to – in matters of law.

That is why during today’s Annual Meeting, I gave the 2016 President’s Award to the more than 100 volunteer attorneys who have helped contribute to BBA amicus briefs throughout the years as Committee Chairs, members and brief writers.

It is through the talented and dedicated volunteers on our Amicus Committee that we’ve been able to do this work, the collective force of which not only stood up for individuals’ rights, but forever changed all of our lives by re-shaping the legal landscape in which we live.

Carol Starkey
President

BBA Amicus Brief History, Part II: Advancing Diversity and Inclusion, and Opposing the Death Penalty

In advance of this year’s Annual Meeting Luncheon, where the BBA will be proudly honoring the 20-year history of our Amicus Committee, last week’s Issue Spot kicked off a two-week review of some of the great past work of our amicus volunteers, from Chairs and members of the Committee to the drafters of our many briefs

Here is Part II of that review, covering more of the briefs we filed on some of the most important legal issues of our time:

Diversity and Inclusion

The BBA is committed to advancing diversity and inclusion in the legal profession by honoring exceptional leadership in diversity strategies, offering public service opportunities for lawyers looking to introduce diverse young people into the legal field, and providing valuable mentoring and professional experience to help retain and develop a diverse population of lawyers in Boston.  Some of our diversity and inclusion initiatives include mentoring, the summer-jobs and summer-internship programs, Law Day in the Schools, and group mentoring.  (For more information about this important work, and to get involved, click here.)  But in addition, as with so many other issues, we have also used amicus briefs to address diversity and inclusion in key cases.

Diversity: Grutter v. Bollinger and Fisher v. University of Texas at Austin

The BBA has long supported race-conscious admissions policies in higher education as a means to provide a diverse pipeline, first to law school and then to the legal profession.  In 2003, we filed a brief in Grutter v. Bollinger, a landmark Supreme Court case on the University of Michigan’s admissions policy.  The brief was drafted by Thomas Dwyer (now at Dwyer LLC) and Jody Newman of Dwyer & Collora, LLP (now Collora LLP), and BBA President Joseph Kociubes served as Of Counsel.

The brief argued that the severe underrepresentation of diverse lawyers harms law firms’ economic and professional interests—and society as a whole, because lack of diversity in the legal profession erodes public confidence in the judicial system.  Furthermore, race-conscious admissions policies are vital to the shared mission of law firms to increase the racial and ethnic diversity of their lawyers.  The brief describes some of the work by firms and bar associations aimed at increasing diversity but explains why they alone cannot solve the problem.

The Supreme Court held 5-4 in line with our brief, finding that race-conscious admissions policies that may favor underrepresented minority groups, but that also consider other factors evaluated on an individual basis, were permissible and not an unconstitutional quota system.

Extending the pipeline back a step, we also filed amicus briefs in both iterations of Fisher v. University of Texas at Austin.  In August 2012, the BBA filed a brief in Fisher I, drafted by BBA Vice-President Jonathan M. Albano, a partner at Bingham McCutchen (now Morgan Lewis) and current member of our Amicus Committee, along with his colleagues Deana K. El Mallawany and Caleb Schillinger.  The brief was supported by 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.

The brief argued that the University of Texas admissions policy should be held to a strict-scrutiny standard because state efforts to promote diversity in education serve compelling governmental interests that are vital to the legal profession’s goals of achieving racial and ethnic diversity.  Furthermore, the brief explained, underrepresentation of diverse lawyers harms the legal profession and society as a whole by eroding confidence in the justice system and limiting the breadth of skills and perspectives of practitioners.  To quote the brief directly,

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.

In June 2013, the Supreme 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 certiorari in June 2015.  In November 2015, the BBA filed its second amicus brief, again supported by the affinity bars and drafted by Jon Albano, this time with the help of Sarah Paige.

Our brief in the second Fisher case was 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 explained that this diversity in the legal profession can be achieved only through the cultivation  of a diverse pipeline of students from undergraduate institutions.

In June 2016, the Supreme Court released its decision, again ruling in line with our brief, by upholding the University of Texas race-conscious admissions policy with a finding that it did not violate the Equal Protection Clause.  We hope that our briefs helped sway the Supreme Court and that the upholding of these sorts of policies will have the intended effect of creating a more diverse pipeline of individuals into the legal profession.  And we will continue to stand by, and advocate for, the principles expressed in these amicus briefs.

Inclusion: Goodridge v. Dept. of Public Health, Commonwealth v. U.S. Dept. of Health and Human Services/Nancy Gill v. Office of Personnel Management, and United States v. Windsor/Hollingsworth v. Perry

One of the BBA’s most well-known amicus briefs was filed in Goodridge v. Dept. of Public Health, the landmark case on marriage equality in which Massachusetts became the first state in the country to find that same-sex couples had a right to marry.  Our brief, written by Peter Zupcofska, L. Tracee Whitley, Heidi Nadel, and Corin Swift, all of Bingham McCutchen LLP (now Morgan Lewis), is different from many of our other briefs in that it does not address the issues through their impact on the legal profession.  Instead, it simply argues that legal benefits, rights, and obligations of marriage should extend to same-sex couples, and that denial of them deprives same-sex couples of equal protection under both statutory and constitutional law.  The SJC famously held in line with these arguments in its historic decision issued on November 18, 2003, establishing a precedent that was later adopted piecemeal in thirty-seven states over the next decade.

Only two years later, the BBA was again advocating for inclusion, this time in Cote-Whitacre v. Department of Public Health, which challenged a 1913 law—said to have been targeted originally at interracial couples—denying marriage license to couples whose marriage would not be valid in their state of residence, under which many Massachusetts clerks were denying marriage licenses to same-sex residents of other states.  Our brief, again drafted by a team from Bingham McCutchen (Morgan Lewis) built on our advocacy in Goodridge to make the case that the statute at issue violated provisions of the Massachusetts and United States Constitutions.  The SJC disagreed in a March 2006 decision, upholding the law’s application to out-of-state same-sex couples.  However, two years later, the law was repealed, accomplishing our ultimate goal.

In 2011, and 2013, we took on the federal Defense of Marriage Act (DOMA), which defined “marriage” as a legal union between “one husband and wife,” and “spouse” as “a person of the opposite sex who is a husband or a wife.”  In 2011, we filed an amicus brief in companion cases Commonwealth of Massachusetts v. US Department of Health and Human Services, and Gill v. Office of Personnel Management, in the First Circuit Court of Appeals, opposing DOMA and arguing that classifications based on sexual orientation must be subjected to heightened scrutiny. The brief was drafted by the ACLU and a team from Wildman Palmer LLP (now Locke Lord), including Daryl Lapp and Robert Young.  The First District decision affirmed the trial court ruling that DOMA violated the Equal Protection Clause of the 14th Amendment but stayed enforcement of its decision in anticipation of U.S. Supreme Court review of the Act.

Just about a year later, the Supreme Court weighed in with favorable decisions in two cases on the same day.  In U.S. v. Windsor, SCOTUS declared Section 3 of DOMA unconstitutional as a deprivation of the equal-liberty rights granted under the 5th Amendment of the U.S. Constitution.  In Hollingsworth v. Perry, the Supreme Court ruled that proponents of so-called Proposition 8, California’s ballot initiative to bar same-sex marriage, did not have standing to intervene because they could not demonstrate that they were harmed by the lower court ruling that declared the measure an unconstitutional violation of equal-protection rights.  The BBA signed onto a single brief filed in both cases, with a coalition of bar associations, civil- and human-rights groups, and public-interest and legal-services organizations, arguing for heightened scrutiny based on sexual orientation classifications.  And of course, in 2015, in its Obergefell v. Hodges decision, the Supreme Court made same-sex marriage the law of the land, finding a constitutional right to marry under the 14th Amendment’s Due Process and Equal Protection Clauses.

Opposition to Capital Punishment

For more than 40 years, the BBA has opposed capital punishment, recognizing that the death penalty is simply too fraught with peril—too likely to lead to the execution of the innocent, too likely to result in discrimination against racial and ethnic minorities, and too expensive and time-consuming—to play any role in our criminal-justice system.  We recently reaffirmed this stance and extended it to the federal death penalty in our 2013 report, The BBA and the Death Penalty.

Over the decades, the BBA has used amicus briefs to explain this position to the courts:

  • 1975 – Commonwealth v. O’Neal – For those of you keeping score, the BBA has been involved with amicus briefs since long before the start of its Amicus Committee some 20 years ago. The advent of the Committee simply helped us bolster our ability to consider and take part in more and increasingly diverse cases.
    • Commonwealth v. O’Neal concerned the constitutionality of a law mandating use of the death penalty for a murder committed in the course of rape or attempted rape. The brief argued that the death penalty is not an effective deterrent for a rapist-murderer because such defendants would not consider variations in punishments, given their twisted and psychotic mental state. The brief also established mainstays of the BBA’s arguments against the death penalty: the possibility of mistake, the disparate impact on minorities, and the massive expenses inherent in pursuing the punishment. The court overturned the state’s unconstitutional mandatory death-penalty provision.
  • 1984 – Commonwealth v. Colon-Cruz – Our brief challenged the constitutionality of a 1982 amendment to Article 26 of the Massachusetts Constitution, permitting the death penalty in the state, and related statutes providing for the imposition and execution of the death penalty in certain murder cases. In addition to reiterating our major tenets, the brief explained the major fiscal, emotional, and professional impacts of the death penalty cases on members of the bar:
    • Historically, the vast majority of capital defendants have been indigent. The immense defense costs thus fall on the Commonwealth and the private bar, especially through pro bono contributions.  It is unfair to impose the extraordinary burden of capital defense, often involving 8-10 years of complex litigation, on only a small segment of the bar, and life is too precious to be left to the defense of underpaid volunteers.
    • The psychological and emotional burdens on counsel, particularly on the defense, are immense. Aside from the onerous length and complexity of cases, defense lawyers are torn between close relationships with their clients and wanting to distance themselves in case of a death sentence.  In addition, prosecutors and defense counsel alike face unique community pressures.
    • Death’s severity and finality as a penalty and defense counsel’s failure to understand the nature and use of a bifurcated trial regularly lead to claims of ineffective assistance of counsel. Such claims degrade the bar, but are inevitable when death is at issue, a client poor, and an attorney court-appointed and dependent on the judiciary for a fee.
    • The SJC invalidated the constitutional amendment and statutes, in line with our brief, finding that they violated Article 12 of the Declaration of Rights of the Massachusetts Constitution by impermissibly burdening a defendant’s right against self-incrimination and his right to a jury trial.
  • 2005 – U.S. v. Darryl Green – The BBA submitted an amicus brief in this case that combined our opposition to the death penalty with advocacy in support of both access to justice and diversity. This brief on the federal death penalty, eight years before our aforementioned Report formally declaring opposition to the federal death penalty, was drafted by David Apfel and Julie Wade of Goodwin Procter LLP (now Goodwin).
    • The brief explains that African-American defendants in the Eastern Division of Massachusetts are likely to face an all-white jury, given population statistics, and that social-sciences statistics show that African-American defendants are far more likely to be convicted and sentenced to death when facing an all-white jury.  It details how African-American jurors simply bring a different perspective to their role – they are more likely to: believe minority witnesses are credible, harbor lingering doubts about defendants’ guilt, view defendants as remorseful, and consider mitigating evidence.  Furthermore, the brief opposes the District’s proposed solution – the empanelment of two separate juries: one to determine guilt and the other, totally different in composition, to determine whether to impose the death penalty.  It states that this “remedy” is “a mere baby step” and “little more than a modest gesture” that does not in any way guarantee fairness.
    • The Court ruled in line with this argument, finding that the District Court’s suggestion of multiple juries relied on a misinterpretation of the Federal Death Penalty Act, but it did not address the concerns over disparate racial impact, as expressed in the brief.

This two-part review has offered just a small sample of the BBA’s work on amicus briefs, but it demonstrates why we are choosing to honoring the 100+ individuals who have given their time and talents to our Amicus Committee and their work—the collective force of which has not only defended and protected individuals’ rights, but forever changed the legal landscape in which we live and practice.

The ceremony will take place on October 20th at the BBA Annual Meeting Luncheon—one of the largest annual bench-bar events in Massachusetts.  In addition, we will hear from keynote speaker Professor David B. Wilkins, the Vice Dean for Global Initiatives on the Legal Profession and Director of the Center on the Legal Profession at Harvard Law School.  A prolific author and leading scholar on the profession, Professor Wilkins is well known for his research on the impact of globalization on the legal market, diversity in the profession and the various career trajectories of attorneys.

We hope to see you there!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Amicus Brief History Part I: Protecting Access to Lawyers and Attorney-Client Privilege

We are proud to be honoring our Amicus Committee at the 2016 Annual Meeting Luncheon, one of the largest annual bench/bar events in Massachusetts.  The keynote speaker will be Professor David B. Wilkins, the Vice Dean for Global Initiatives on the Legal Profession and Director of the Center on the Legal Profession at Harvard Law School. A prolific author and leading scholar on the profession, Professor Wilkins is well known for his research on the impact of globalization on the legal market, diversity in the profession and the various career trajectories of attorneys.

However, in this blog we would like to focus on our honorees, the BBA’s amicus volunteers, from Chairs and members of the Committee to the drafters of our many briefs.  For more than twenty years, the BBA has had a voice in some of the most important legal issues of our time through the filing of amicus briefs.  We look forward to honoring over 100 individuals who have given their time and talents to this work – the collective force of which has not only defended and protected individuals’ rights, but forever changed the legal landscape in which we live and practice.  This week and next, we will look at some of the most important themes covered in some of our most well-known briefs.

Access to a Lawyer

Tax on Legal Services

The BBA has long defended access to lawyers for those in need, both the constitutional right to a lawyer for indigent criminal defendants and much-needed representation for low-income civil litigants.  The first of these cases was in 1990, related to a then proposed tax on legal services.  On July 7, 1990, the Massachusetts General Court passed House Bill 5858, “An Act Establishing the Economic Stability and Recovery Compact.”  The legislation sought to impose a tax on certain services rendered by lawyers and consumed within the state.  Two days later, Governor Michael Dukakis, noting “grave doubts” about the constitutionality of the bill, asked the SJC to consider the issue.  The SJC requested amicus briefs specifically from the BBA and MBA, and we were happy to oblige.

A mere four days after this request, the BBA and MBA submitted a joint brief, authored by  lawyers from Choate, Hall & Stewart (today, Choate) and Hale and Dorr (prior to becoming WilmerHale) successfully arguing against the tax because it violated both the Massachusetts and United States Constitutions.  Specifically, it explained that the bill violated Article XXX of the Massachusetts Constitution regarding separation of powers by overextending legislative authority to the regulation of the practice of law and attorney conduct, which are regulated exclusively by the judiciary.  It also unconstitutionally infringed upon the SJC’s exclusive powers under the same Article by imposing administrative bookkeeping responsibilities upon the legal profession that conflicted with the ethical obligations embodied in the rules of professional conduct contained in SJC Rule 3:07.  Going a step further, in a footnote, the brief explained that enforcement of the bill would require lawyers to violate attorney-client privilege by disclosing confidential information regarding the nature of legal services rendered in particular transactions.  This level of reporting would “chill clients’ willingness to consult their attorneys and, ultimately, undermine public confidence in our legal system.”

The brief also argued that the bill violated the Fifth (limiting police procedures, outlawing unjust imprisonment and double jeopardy, and protecting a person from being compelled to be a witness against himself in a criminal case), Sixth (right to a speedy and public trial, impartial jury, and to know your accusers and the nature of charges and evidence against you), and Fourteenth (equal protection and due process of law) Amendments of the US Constitution.

As applied to legal services, the bill was argued to be unconstitutional under the Massachusetts Constitution for violating the Excise Clause and Article 11 of the Declaration of Rights, which states:

Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.

The language in this Article has been applied to prohibit the “imposition of unreasonable charges” for access to the courts, which the brief argues such a tax would be.  The charges proposed by the statute at issue are unreasonable because they would not be uniformly applied and the difference in taxpayers’ liability was not rationally related to differences in the nature or degree of services provided by the Commonwealth to different taxpayers in connection with the administration of justice.  Also, unlike other court fees and costs, the revenue from the tax would be unrestricted in its use, whereas court fees typically must have a reasonable relationship to the administration of justice.

The legal services tax provision took effect on December 1, 1990, and two days later, Governor Dukakis signed legislation repealing the tax.  Yet this was not the end of the conversation.  In 2011, a Tax Expenditure Commission comprehensively reviewed the state’s then tax structure and considered new taxes, including this sort of tax on services.  The BBA took the opportunity to remind the public of this brief, and ultimately the Commission’s report did not recommend  this sort of tax.

Lavallee v. The Justices of the Hampden Superior Court and Carabello v. The Justices of the Holyoke District Court

Fourteen years later, we were having a similar discussion, this time specifically for attorneys representing indigent criminal defendants.  In Lavallee v. The Justices of the Hampden Superior Court and Carabello v. The Justices of the Holyoke District Court, the BBA submitted a brief by three Choate, Hall & Stewart (today, Choate) attorneys, Jack Cinquegrana, Michelle Dineen Jerrett, and Terrence Schwab.  The case arose out of necessity – thanks to the Gideon decision, all criminal defendants have a right to counsel.  If they cannot afford one, the state has a responsibility to provide one.  In Massachusetts, this has been provided under statute since 1983 by a combination of Committee for Public Counsel Services (CPCS) staff attorneys and contracted bar advocates.

As of summer 2004, the hourly compensation scheme for bar advocates had not changed since 1986.  Due to the low rates ($30 to $54 an hour depending on the case) there was an increasing shortage of lawyers, particularly in western Massachusetts.  In early May, 2004, no attorneys reported for duty in Hampden County court to accept new criminal court case assignments, resulting in at least 19 indigent defendants being held in custody without counsel.  CPCS and the ACLU filed a petition in the SJC on behalf of those defendants.

The BBA stepped up to file a brief arguing that the state needed to adequately fund public defenders in order to attract a sufficient number of competent counsel and thatthe state had been underfunding indigent defense services since their inception.  On July 28, 2004, the SJC found that the defendants in these cases were being deprived of their right to counsel under the Massachusetts Declaration of Rights and urged all three branches of government to work together to fashion a remedy.  In August, the Legislature passed a bill to increase hourly rates for certain types of cases through a $16.3 million supplement to the fiscal year 2005 budget and create a commission to study indigent criminal defendant representation.  The final report recommended further increases over a multiyear period.  (For a more comprehensive history of CPCS and bar advocate compensation, see here).

A familiar debate continues today, and the BBA is continuing to weigh-in, most recently advocating for pay raises for CPCS staff attorneys and Assistant District Attorneys so that their base pay equals that of executive-branch attorneys.

Attorney-Client Privilege

The BBA frequently uses the amicus brief platform to argue for the preservation of the attorney-client privilege.  Attorney-client privilege is one of the oldest privileges recognized under law, with the intent of encouraging open and frank communication between attorneys and their clients to promote the broad public interest in the observation of law and administration of justice (see Upjohn v. United States).  The Ninth Circuit has called the privilege “perhaps the most sacred of all legally recognized privileges and its preservation is essential to the just and orderly operation of our legal system (see United States v. Bauer).

RFF Family Partnership v. Burns & Levinson

Two recent cases best illustrate our commitment to this principle.  In 2013, Bob Buchanan of Choate and also a long time member of the BBA’s Ethics Committee and Board of Bar Editors, led the team authoring our brief in RFF Family Partnership v. Burns & Levinson.  “Of Counsel” drafters included Harold Potter, Jr. of Holland and Knight LLP and William Southard of Bingham McCutchen LLP (now Morgan Lewis).  The case concerned whether confidential communications between law firm attorneys and a law firm’s in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege.  In the case, the law firm Burns & Levinson was accused of malpractice in its representation of plaintiff RFF Family Partnership, LP in a commercial foreclosure property transaction.  After the attorneys on the case received a letter laying out the malpractice allegations, they consulted with Burns & Levinson partner, and BBA Council member, David Rosenblatt, who was designated to respond to ethical questions and risk management issues on behalf of the firm and had not at the time worked on any issues in the RFF matter.  Burns & Levinson did not bill RFF for any of the time devoted to these internal communications.

The BBA brief asked the court to state a clear rule applying attorney-client privilege when a lawyer consults with in-house ethics counsel, arguing that clients benefit when lawyers promptly consult in-house ethics counsel, that there is a sound legal basis for applying the privilege in these circumstances, and there is no basis for carving out a “fiduciary exception” to the privilege.  Specifically, the brief lays out a test for immediate application of attorney-client privilege in these sorts of consultations:

  1. In-house counsel has been formally or informally designated to provide advice to the law firm…
  2. In-house counsel does not work on the particular client matter that presents an issue; and
  3. The time spent by in-house counsel on advertising the law firm is absorbed by the law firm and is not billed or charged to any client.

The SJC concluded that confidential communications between law firm attorneys and in-house ethics counsel concerning malpractice claims of a current client are not subject to different standards under a “fiduciary exception” and are protected from disclosure by the attorney-client privilege “provided that (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel, (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter, (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential.”  Look familiar?

This decision and the, shall we say, slightly modified BBA test, have been cited by other states considering the same sorts of issues.  We are proud that our brief had such an impact and feel strongly that these are the sorts of issues on which the BBA must be a thought leader given the import of the privilege to the legal profession.

Commonwealth v. Wade

More recently, we defended attorney-client privilege in the case of Commonwealth v. Wade, in addition to arguing for the correct interpretation of the Commonwealth’s new post-conviction DNA testing law.  Followers of this blog know this case well – see our coverage throughout the case: December 2015 brief filed, January 2016 oral argument, August 2016 breaking down the SJC decision.  For those of you who may have missed it, the case revolves around interpretation of Chapter 278A, in particular, 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.  The BBA advocated for passage of the law establishing this language, starting with our 2008 Task Force to Improve the Accuracy and Reliability of the Criminal Justice System, which published its Getting It Right report in 2010.  In 2012, the Governor signed a law that 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 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, argued 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.

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.”

We couldn’t agree more.  And the SJC apparently feels the same, as the 6-0 decision issued July 29 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” he did not seek the requested analysis. The decision makes clear that the statute’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 Judicial 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 rulings 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 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 again safeguarding one of the most important tenets of legal practice in attorney-client privilege.

And these two cases are merely the tip of the iceberg.  The BBA has protected attorney-client privilege in each of the following cases as well:

  • 2007 – Bismullah v. Gates – The BBA signed onto a brief drafted by the Association of the Bar of the City of New York and filed on behalf of a group of detainees at the U.S. Naval Base at Guantánamo Bay, Cuba, in the U.S. Court of Appeals for the D. C. Circuit. The brief sought a protective order governing proceedings against Respondent Secretary of Defense Robert M. Gates in order to reasonably protect access to classified information while addressing communications between the detainees and their counsel. The brief argued that legal representation is impaired if lawyers are not able to visit their clients as they find necessary to obtain the information they need and to consult with and inform their clients, as well as to establish the trust necessary to effective representation. On July 20, 2007, the appeals court ruled in line with our brief, that the Guantanamo captives’ attorneys should be allowed to review all the classified evidence in their clients’ cases.
  • 2007 – Hanover Ins. Co. v. Rapo & Jepsen Ins. Svcs., Inc. and Arbella Mutual Ins. Co. – This interlocutory appeal from the entry of a discovery order in an automobile dispute between insurers presented issues regarding attorney-client privilege and work product doctrine in the context of a joint defense agreement: whether Massachusetts law recognizes a joint defense privilege and whether an oral joint defense agreement is enforceable. The brief, authored by John Shope and Katherine Schmeckpeper of Foley Hoag, supported the appellants’ position that Massachusetts recognizes the common interest doctrine, sometimes known as the joint defense privilege. This doctrine, which is recognized in the majority of other states and federal law, permits parties with common interests to share communications protected by attorney-client privilege or the attorney work product doctrine without waving applicable immunity from disclosure. This facilitates the efficient resolution of litigation by increasing the sharing of information and division of labor among counsel working towards a common goal.  The SJC decision recognized the use and validity of joint defense agreements, and the exception to waiver of the attorney-client privilege under the common interest doctrine.
  • 2006 – ACLU v. NSA – the BBA signed onto this brief behind the leadership of then Amicus Committee Chair Deborah Birnbach, Goodwin. The brief challenged the National Security Agency’s wiretapping program on the grounds that it violated attorney-client privilege.  The issue arose out of a classified NSA foreign intelligence program, in existence since at least 2001, which was used to intercept international telephone and internet communications of numerous people and organizations within the United States without warrants, allegedly because of their history of communicating with people in or from the Middle East.  The amicus brief argued that the surveillance program undermined attorney-client privilege because the individuals accused by the government of wrongdoing should have access to legal advice, but such advice can be effective only if lawyer-client communications are conducted in confidence, uninhibited by fears of government wiretapping.  The Sixth Circuit Court of Appeals ruled against the brief, finding that the plaintiffs could not show that they had been or would be subjected to surveillance personally, and therefore lacked standing before the court.  One year later, the US Supreme Court turned down an appeal from the ACLU.
  • 2006 – Suffolk Construction Co. v. Commonwealth of Massachusetts, Division of Capital Asset Management – in a brief authored by Edward Colbert III, then of Looney & Grossman LLP, now with Casner & Edwards, the BBA supported DCAM’s position that government attorneys and their clients should not be exempted from attorney-client privilege. The brief argued on policy grounds that documents of government agencies/employees should enjoy protection from disclosure under the public-records law if the documents are subject to attorney-client privilege.  Aside from the hallowed position of the privilege in the history of law, the brief argued that clients of government attorneys include members of the public served by public agencies who deserve the privilege.  In addition, public officials and employees would be unfairly disadvantaged if their attorney communications were not protected.  Finally, the public interest is served by placing government attorneys on equal professional and intellectual footing as private attorneys, promoting the highest standards of legal excellence among all attorneys, whether they are engaged in public or private practice.  The SJC ruled in-line with our brief, protecting attorney-client privilege for government lawyers.
  • 2000 –U.S. v. Legal Services of New York City – the BBA signed onto a brief defending attorney-client privilege for legal services recipients. The case revolved around a dispute on whether the Inspector General could subpoena legal-services lawyers at Legal Services for New York City (LSNY) about their clients’ particular needs, in order to link clients’ names to their needs.  The brief argued that forced disclosure of this information would violate attorney-client privilege, harming clients and deterring them from seeking legal counsel, especially in sensitive cases such as domestic abuse, public benefits, child abuse or neglect, or mental health and disability rights.  The District of Columbia Court of Appeals held against our amicus brief, permitting enforcement of the Inspector General’s subpoena.

As you can see, the BBA’s appellate advocacy through amicus briefs has had a major impact on the law in Massachusetts and beyond.  Stay tuned for more amicus highlights next week, when we will cover briefs on diversity and inclusion and opposition to capital punishment.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association