BBA Files as Amici in Two New Cases – and Praises SJC Decision in a Third

This was a busy week on the amicus front at the BBA, with two new filings—one brief, one letter—and a decision from the SJC on a case where we filed a brief this spring.

Starting with that last item, we reported previously on Commonwealth v. Johnson, in which the BBA submitted an amicus brief arguing that the state law on access to post-conviction testing to remedy wrongful convictions (known as Chapter 278A) was enacted specifically to facilitate access, and the SJC should therefore adopt a broad interpretation of its standing requirements.

Johnson—who was required to register as a sex offender as a result of a 1994 conviction—maintains his innocence and seeks the opportunity to test DNA evidence of which he was unaware at the time of trial, in the hope it will lend evidentiary support to his wrongful-conviction claim. The law limits access to testing to those who have been convicted in Massachusetts of a criminal offense and are “incarcerated [or] on parole or probation or whose liberty has been otherwise restrained as the result of a conviction.” Johnson’s petition was denied at the lower level when the judge found that he did not meet this threshold requirement, because he was then incarcerated as a result of failing to register as a sex offender and not as a direct result of his conviction.

Although the defendant here completed his Massachusetts sentence and is not currently on parole or probation, the BBA argued that his liberty continues to be restrained by his requirement to register as a sex offender, and that his claim—and claims of all similarly-situated individuals—should therefore be allowed to proceed.

On August 20, the SJC released its decision ruling that the defendant met the threshold requirements and is entitled to move forward with his application for DNA testing—and while the Court did not reach the issue raised in our brief, we were heartened by the inclusive interpretation the Court applied to Chapter 278A. This ruling, consistent with SJC jurisprudence in past cases, applies an appropriately broad interpretation that allows anyone whose liberty is restrained as a result of a Massachusetts conviction to pursue such testing and ensures that the Massachusetts law providing access to post-conviction testing of forensic evidence will be interpreted as the Legislature intended.

The SJC is set to hear oral argument on September 6 in Rawan v. Lala, a case that tests whether an insurance company must honor a clause in certain policies, granting the insured the right to refuse any settlement offer the insurer proposes, even when liability is reasonably clear—and whether such clauses ought to be unenforceable altogether, as against public policy.

Under G. L. c. 176D, § 3(9)(f), it is considered an unfair claim settlement practice for a liability insurer to fail to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear. In this case, an engineer was sued and gave only limited authority to his insurance company to make settlements, pursuant to a “consent to settle” clause in his insurance policy. The plaintiffs prevailed at trial, and the engineer’s insurer paid their coverage limit, with the insured paying the difference. After the verdict, the plaintiffs also brought a claim against the insurance company, under Chapter 176D, arguing that the insurer had violated its statutory obligation to act reasonably and in good faith to pursue a settlement, once its client’s liability had become reasonably clear.

The BBA last week filed a brief offering the perspective of attorneys, for whom such policies are common, and arguing that they benefit the profession as well as clients by encouraging attorneys to obtain liability coverage and to fashion policies to suit their needs. These insights are not offered through the briefs filed by the parties in the case, but the BBA wanted to make sure that the Court considers what is at stake here for the practice of law—which is one of the issue areas the BBA’s Amicus Committee looks at closely when considering whether to recommend filing a brief.

The brief, drafted by Maureen Mulligan, Allen David, and Steven E. DiCairano of Peabody & Arnold, LLP, states:

Consent-to-settle provisions promote public policy in two distinct ways. First, consent provisions enable lawyers to exercise their professional discretion in striking the appropriate balance among a host of unique, individualized considerations presented by malpractice claims. Second, consistent with the unique implications of such suits, well-established freedom to contract principles protect professionals’ abilities to tailor the terms of their liability insurance coverage.

Consent provisions ultimately incentivize the procurement of optional professional liability insurance in Massachusetts because they enable professionals to enjoy insurance protections while preserving autonomy in controlling the resolution of a malpractice suit. To invalidate consent provisions within the Chapter 176D context or otherwise would be to divest professionals of an important malpractice claim management device which inures to the benefit of the insured, not the insurer.

It goes on to note that, like certain other professionals, attorneys are especially susceptible to the adverse reputational effect of a malpractice claim, and may thus choose to seek out insurance policies that grant them some measure of control over the handling of such a claim, “consistent with their individualized calculus”—especially since word of a settlement may only invite more additional claims.

Commonwealth v. Heywood presents questions surrounding the seating of a blind juror in a case with photographic evidence of the victim’s injuries, where the seriousness of such injuries was relevant to the charge for which the defendant was convicted. The SJC solicited amicus briefs on the following issues:

Whether the judge erred in determining that a blind juror was competent and qualified to be seated on a case involving a charge of assault and battery causing serious bodily injury, where the evidence included two photographs and other documentary evidence; whether appropriate accommodations were made to permit a blind juror to be seated as a juror; whether the evidence was sufficient to warrant a finding of serious bodily injury.

However, the BBA chose, on the recommendation of our Amicus Committee, to take a step back from these case-specific questions in order to look at the broader picture—and to do so in the form of an amicus letter, rather than a full brief.  As noted in our letter:

The BBA submits that having the benefit of the diverse views of citizens with physical disabilities is essential to a fair and impartial process and, in particular, in a trial before a jury of one’s peers. Given the historical limits that persons with disabilities have experienced in their attempts at serving as jurors, the Court’s questions raise issues well beyond the specific ones in the Heywood case. The BBA thus supports the establishment of a Study Group to evaluate the broader issues of how trial judges should evaluate the feasibility of service by prospective jurors with disabilities and to provide guidance to all stakeholders—judges, attorneys, jurors and litigants—under the myriad of circumstances that may arise when a citizen with a physical disability is summoned for jury service in both criminal and civil cases.

The letter goes on to suggest that such a panel could “examine the current best practices in accommodating jurors who have physical disabilities in an effort to standardize statewide procedures for the Court,” noting that “there does not appear to be any guidance available to trial judges or attorneys on how best to accommodate [such] jurors.” These best practices could cover questions for jurors, whether preliminary or at voir dire, and the use of peremptory challenges and challenges for cause.  After this initial groundwork has been laid, “the BBA envisions that the Study Group might recommend that the Court create a Standing Committee or Committees” to develop training programs on these issues, monitor improvements in technological accommodations, and the like.

The amicus letter closes by emphasizing, “The BBA believes it is the responsibility of the bench, the bar and the legislature to provide equal access to jury service to our citizens with physical disabilities. Equal justice under the law and the right to an impartial jury of one’s peers demands nothing less.”

The letter to the SJC was sent by BBA President Jonathan Albano of Morgan Lewis, with the assistance of Amicus Committee member Scott Lopez, of Lawson & Weitzen.

Oral argument will be held at the SJC on September 9, though we may have to wait for a decision to know whether the SJC intends to act on our suggestion, since—as with Rawan—the parties are not expected to address the issues raised in the BBA’s letter.

 —Michael Avitzur
Government Relations Director
Boston Bar Association