Posts Categorized: Amicus Brief

BBA Government Relations Year in Review: Part I

As 2016 draws to a close, we wanted to take a quick look back at our year in Government Relations.  If you want to see a Boston Bar Association and Boston Bar Foundation-wide view of the world, I highly recommend checking out Our Year in Review, which provides both a look back and a look ahead at some of our biggest initiatives.

So what was on our minds in GR?  By the numbers, amicus cases ruled the day.  Roughly grouping our 63 Issue Spot posts of 2016 by subject matter, the numbers look like this:

  1. Amicus Cases (including Commonwealth v. Wade and Bridgeman v. District Attorney): 12 posts
  2. Criminal Justice Reform: 9 posts
  3. Rules Changes and BBA Comments thereon: 7 posts
  4. A three-way tie between: Court News, Diversity and Inclusion, and Budget Advocacy: 6 posts a piece
  5. Civil Legal Aid: 5 posts
  6. The remaining 12 posts cover an array of topics including the future of the legal profession, legislation of interest to certain Sections, and programs at the BBA.

Amicus Committee

So let’s start with the top – 2016 was a huge year for the BBA’s Amicus Committee.  Led by Co-Chairs Tony Scibelli, Barclay Damon, and Liz Ritvo, Brown Rudnick, the Committee celebrated the release of three major decisions in-line with our briefs, filed another brief in one of the most important currently pending cases, and received a BBA award that honored its history, marking 20 years of taking part in seminal cases.

  • March 10: BBA Seeks Justice for Vulnerable Youths Through a Two-Pronged Strategy – In early March, the SJC released its full opinion in Recinos v. Escobar. The ruling held in line with our brief, which we signed onto with a coalition of concerned organizations and individuals, and which was drafted by former BBA President Mary Ryan along with her team at Nutter, McClennen & Fish, LLP – BBA Business and Commercial Litigation Section Steering Committee member Cynthia Guizzetti (now at E Ink Corp.) and Mara O’Malley. It argued that the Probate and Family Court has equity jurisdiction over abused, abandoned, and neglected youths up to the age of 21 to enter the necessary findings as a predicate for status as special immigrant juveniles (SIJ’s).  It also made the case that the Massachusetts Declaration of Rights supports this sort of equitable remedy. The brief further argued that such individuals are “dependent on the court” to make such a finding because they have been mistreated and because such a finding is required to qualify for SIJ status.
  • June 23: Increasing Diversity in Legal Practice at the US Supreme Court – In June, the US Supreme Court released its decision in Fisher v. University of Texas (II), upholding the school’s race-conscious admissions policy with a finding that it does not violate the Equal Protection Clause. The Court reached the outcome we argued for in our amicus brief, drafted by BBA Secretary Jon Albano (who had previously drafted our brief in the related case known as Fisher I) and Sarah Paige, both of Morgan Lewis, that experimentation in admissions is necessary to balance the pursuit of diversity with constitutional requirements of equal treatment.  This ruling means that the University of Texas, as well as other schools across the country, may continue to experiment with admissions policies intended to create a more racially inclusive classroom, and society.

The 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.

  • October 26: BBA Amicus Advocates for Resolution in Dookhan Scandal – On October 24, we filed a brief, written by our Amicus Committee Co-Chairs, arguing for a so-called global remedy in Bridgeman v. District Attorney (SJC-12157), the latest case related to the Annie Dookhan/Hinton Drug Lab scandal. The remedy proposed in our brief would place the burden on the Commonwealth to re-prosecute within a set time period (to be determined by the Court) any Dookhan cases with dispositions adverse to the defendant 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.  Oral argument was held on November 16 and we look forward to a ruling from the court in the coming months.

Criminal Justice Reform

Always a major issue for us, criminal justice reform was the subject of frequent discussions in the Sections and amongst leadership, and this is likely only the beginning as we look forward to playing a large role in advocacy related to the forthcoming criminal justice reform package anticipated this legislative session.

  • February 4: Focus on Reducing Recidivism – In late January, we used the honoring of Roca, a community based non-profit organization committed to helping 17-to-24-year-olds succeed in re-integrating to society, at the 2016 BBA Adams Benefit (Reminder: please join us on January 28 for the 2017 Adams Benefit, honoring former SJC Chief Justice Margaret Marshall), as a springboard to discuss the BBA’s own efforts toward reducing recidivism. We discussed our longstanding opposition to mandatory minimums, and the possibility of bail reform, evidence-based risk assessment tools to help determine the security classifications of inmates behind bars, and their appropriate level of supervision upon release; as well as ways to reduce recidivism and promote successful re-entry of the 90-plus percent of those currently incarcerated who will ultimately return to society.
  • April 7: BBA Recommends Modernization and Reform of Wiretap Statute – Responding to concerns expressed by the SJC in decisions in both 2011 and 2014, and by the Attorney General in a 2015 statement, and to the simple fact that the wiretap statute, L. c. 272 §99 has existed in substantially the same form since 1968, even as technology has undergone revolutionary changes, the BBA’s Criminal Law Section, along with the Civil Rights and Civil Liberties Section drafted a statement of principles for the Legislature, making a number of recommendations for potential revisions to the wiretap statute. In a May post, we detailed how a redrafted bill (H1487) incorporated many of these proposals.  The bill (final number H4313) ended session tied up in the House Committee on Ways and Means.  We will continue to advocate for amendments to the statute to incorporate the recommendations in our principles.
  • December 8: Discussing the Death Penalty – Recently, we reaffirmed our position in opposition to the death penalty in a new medium – a podcast that shares the same Issue Spot name as this blog. This post discusses our 40-year history advocating on this issue, including our 2013 report opposing the federal death penalty.  Our position is, and always has been, based on principled analysis:
    • The inevitability of error in criminal cases makes it overwhelmingly likely that reliance on the death penalty will lead to the execution of innocent defendants;
    • In practice, the death penalty has a disproportionate impact on members of racial and ethnic minorities; and;
    • Death penalty prosecutions are more expensive, more subject to prolonged delays, and unlikely to produce a different result than cases where the prosecution seeks life without parole.

Stay tuned for part two next week when we look back at the role we played in promoting diversity in the legal profession, advocating for civil legal aid funding, and improving legislation and practice rules!

Happy New Year!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Discussing the Death Penalty

As you likely know, the BBA has long opposed the death penalty, for more than 40 years to be exact.  Our reasoning is based on sound and practical principles – that the death penalty 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 with our 2013 report, The BBA and the Death Penalty and now we are proud to announce the release of the BBA’s first ever podcast, which takes the discussion of this position to the next level. With conviced murderer Gary Lee Sampson currently facing the death penalty at the Moakley Courthouse, the Co-Chairs of the BBA’s Death Penalty Working Group that produced that report, Martin Murphy (Foley Hoag) and retired Superior Court Judge Margaret Hinkle (now at JAMS), discuss their experiences with the death penalty and on the Working Group, and BBA President Carol Starkey shares her thoughts.

We have advocated against the death penalty through public education, such as in the aforementioned report and our 2015 press release urging the Department of Justice to seek a life sentence without parole instead of the death penalty for Boston marathon bomber Dzhokhar Tsarnaev.  We have made the same point when the Legislature has considered reinstating the death penalty and in amicus briefs including:

  • 1975 –Commonwealth v. O’Neal – 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 rejected 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 –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.

Despite a general trend away from capital punishment recently, in the last few days, the death penalty has again made headlines. Georgia executed its U.S. leading ninth inmate of the year.  The Georgia case described in the article suffers from some of the hallmarks we’ve highlighted in our opposition.  For example, the crime took place in March 1990, but the defendant was not sentenced to death until his second trial eleven years later.  Even more concerning, the case raises major due process issues:

[Defendant William Sallie’s] lawyers argued that he should, once again, be granted a new trial because a woman who ultimately ended up on the jury during the second trial lied during jury selection and failed to disclose her own history of domestic violence, messy divorces and child custody fights — traumatic events that they said were “bizarrely similar” to Sallie’s case.

But no court ever properly considered the alleged juror bias, his lawyers argued in a recent legal challenge, because the issue wasn’t discovered until more than a decade later, and courts had ruled that Sallie’s petitions raising that evidence were procedurally barred because he missed a filing deadline by eight days at a time when he didn’t have a lawyer.

The defense team also made those arguments in a clemency petition to the Georgia Board of Pardons and Paroles, urging it to act as a “fail safe” against a miscarriage of justice. But the board, the only authority in Georgia with power to commute a death sentence, declined to spare Sallie’s life after a clemency hearing Monday.

Earlier in the week, Florida appealed the state Supreme Court’s interpretation of a US Supreme Court decision finding unconstitutional the state’s system of allowing judges, instead of juries, to find the facts needed for a death sentence.  The US Supreme Court held that this gave judges too much power, violating the Sixth Amendment right to trial by jury. From the Miami Herald:

At the time of the January [US Supreme Court] ruling, Florida’s system allowed jurors by a simple majority to recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed, a process known as “weighing.”

Florida lawmakers hurriedly rewrote the law this spring, requiring jurors to unanimously find that at least one aggravating factor exists before a defendant can be eligible for a death sentence and requiring at least 10 jurors to recommend death for the sentence to be imposed.

The Florida Supreme Court then found the new law unconstitutional, because it did not require unanimity in imposing the death penalty (something Judge Hinkle experienced firsthand in a Florida death penalty case and discusses in the podcast).  The state’s attorney general is appealing the ruling to the US Supreme Court for discretionary review.

As always, we’ll be on the lookout for latest developments in capital punishment and continue our advocacy in opposition.  We hope you enjoy the podcast and we’ll keep you posted on the forthcoming second episode which will cover our role in a major state scandal…

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Stepping Up: Bridgeman Argument and the BBA’s Mission

We hope by now you have seen BBA President Carol Starkey’s letter to our members, in which she makes the case that no matter how challenging we may find the tone of the national dialogue, the BBA remains committed to its mission.  This includes our work to assure the protection of due process rights (including for non-citizens, who may be particularly concerned of late about their rights under the law), freedom from discrimination, and access to justice for all.  One place we see these tenets in action is in our amicus work.  From promoting diversity and inclusion to opposing capital punishment to protecting access to justice and attorney-client privilege, we have been, and we will remain, at the forefront of many of the biggest issues in the Commonwealth and country.

In the latest example, we watched oral argument this week on Bridgeman v. District Attorney for Suffolk County (SJC-12157). Our amicus brief argues for a global solution in the so-called Annie Dookhan cases—specifically 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 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.  Read more about our brief and the background of the Annie Dookhan scandal in our recent blog post.

Beyond the arguments contained in the BBA brief, its mere existence was cited at oral argument by Matt Segal, legal director for the American Civil Liberties Union in Massachusetts (ACLUM), as an example of the bar stepping up to meet the many challenges raised by the Dookhan scandal.  Segal’s answer came in response to Justice David Lowy, who had asked whether the bar could “step up” to assist an overburdened Committee for Public Services (CPCS) in handling the remaining unresolved Dookhan cases, which we now know amount to upwards of 20,000.

Segal went on to explain that while the private bar, CPCS, and the courts have all done their part in a tremendous effort toward resolving the mess left by Dookhan, any further “stepping up,” such as through lawyer volunteers to represent Dookhan defendants, would be an inappropriate bail-out for the Commonwealth, which should bear sole responsibility for fixing the problem.  Segal reminded the Court that, this case arises from the Commonwealth’s evidence, the very evidence that in turn has been tainted by a Commonwealth employee.  We couldn’t agree more, and our brief makes that point as well.

The justices and attorneys also probed a number of other issues pertinent to our brief, mission, and Presidential letter:

  • At what point does systemic misconduct rise to a level meriting the sort of global remedy contemplated here? Attorneys for Bridgeman argued that the sheer number of outstanding cases was important in implicating the integrity of the criminal justice system, conceding that if misconduct affected only one or even, say, 40 cases, they would have more confidence in the type of solution proposed by the District Attorneys of notifying defendants and handling each of their cases individually.  The timing also played a role, as more than four years after the scandal came to light, Bridgeman’s attorneys were understandably unwilling to accept as a viable solution the possibility of re-sending notices to Dookhan defendants giving them the option of challenging their convictions because it would violate principles of timely administration of justice.

Attorneys for the District Attorney’s Office argued that the systemic misconduct had been and would continue to be effectively remedied through the diligent work of many individuals and institutions in the state.

  • Can the justice system handle a case-by-case review of affected defendants? CPCS attorney Benjamin Keehn argued that his agency simply did not have the capacity or funding to handle the volume of cases that would be presented if even a fraction of the defendants seek to exercise their rights to try to challenge their convictions.  The District Attorney’s Office countered that these concerns were speculative as it was up to defendants to come forward and based on early returns, few seem to be doing so.  Defendants argued that this was due to shortcomings in the notice the DA’s Offices sent to defendants, because a large majority of defendants would be expected to come forward if they received and understood the notice.

The District Attorneys claimed that notice had been adequately provided and explained their contention that defendants were affirmatively choosing not to challenge their convictions, an assertion that was met with skepticism from Justice Geraldine Hines.  They also argued that a decision in a prior Dookhan case, Commonwealth v. Scott, 467 Mass. 336 (2014), required defendants to demonstrate a reasonable probability that knowledge of Dookhan’s misconduct would have materially influenced his decision to tender a guilty plea.  A global solution would, they argued, undermine this requirement.

  • What role do collateral consequences play? Both Chief Justice Ralph Gants and Justice Barbara Lenk seemed clearly focused on the indirect impacts that potentially-tainted convictions are having, and may yet have, on Dookhan defendants.  Of particular note is whether they may be susceptible to deportation as a result: Gants pointed out that while a case outcome of Continuance Without a Finding (CWOF) may not technically be an adverse disposition in the state, it could have grave implications for a defendant’s federal immigration status.  Lenk later hit on the same point, explaining that Dookhan defendants could unjustly face deportation or other collateral consequences, such as challenges finding housing or jobs, as a result of such a conviction.

The BBA has considered such collateral consequences before in relation to this case and criminal justice reform generally.  We are continuing that conversation and look forward to taking an active role in the upcoming legislative session, when we anticipate criminal justice reform legislation based in part on the recommendations of the Council of State Governments’ review of Massachusetts laws.

We are extremely proud of the work of our Amicus Committee on this case.  They represent one small slice of the BBA’s membership, but, as with so many of our volunteers, their work touches directly on our core values. As President Starkey described, we are dedicated to our work supporting meaningful access to justice and protecting due process, and we hope you will join us in that commitment.

– 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

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 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

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

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

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

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

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

Case Facts

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

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

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

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

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

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

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

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

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

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

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

The Decision

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

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

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

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

Discussing the US Supreme Court from Inside and Out

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The Supreme Court is Like Mordor … One does not simply walk into it.  This and other insights – Special masters! Hotly contested rivers! Quills!  And everything you need to know to practice before SCOTUS  – emerged at Wednesday’s Conversation on the US Supreme Court program at the BBA.  Moderated by BBA Amicus Committee Chair Tony Scibelli, the event featured a lively discussion of the US Supreme Court by keynote speaker Ethan Torrey, Legal Counsel to the Court, Mark Fleming, WilmerHale, Traci Lovitt, Jones Day, Kevin Martin, Goodwin Procter, and Dalila Wendlandt, Ropes & Gray.

The Office of Legal Counsel

ET smallTorrey began his keynote address by giving attendees some insight into his job.  He is one of two attorneys for the Court, and they share the services of a single paralegal.  They are responsible for providing legal services to the Court as an institution and advising the Court on certain Court and case related matters.  More specifically, they advise the Justices and the Court on ethics, contracts, police and security issues, litigation (often involving protesters and First Amendment claims), and proposed amendments to the federal rules, as well as monitoring legislation of interest to the Court.

The Office of Legal Counsel also provides the Court guidance on petitions for extraordinary relief (such as writs of habeas corpus and writs of mandamus) and cases arising under the Court’s original jurisdiction, often involving disputes between states.  These disputes have a history dating back to before the Constitution and the Supreme Court’s original jurisdiction was contemplated in Alexander Hamilton’s Federalist Paper number 80.

Nowadays these cases often involve disputes about borders related to geographical and alluvial changes, interstate compacts (which are ratified by Congress and hold the force of federal laws), escheat claims (competing claims to abandoned property), tort claims (often akin to public nuisance claims, addressing such issues as river pollution), water rights, and claims challenging regulations in other states.  Procedurally, states seeking relief from the Court must first file a motion for leave to file, and the Court exercises this jurisdiction sparingly.  If the motion is accepted, the Court generally then appoints a “special master” who gathers evidence, hears testimony, and files a report with the Court.  The parties then file exceptions to the report, and the Court hears oral argument on the exceptions before making its decision, often considering not only the facts of the case, but also the equities involved before fashioning a remedy.

Getting to SCOTUS

KM smallKevin Martin talked about the first step in getting your case to the Supreme Court – the briefing process.  He urged attendees, as angry as you may be after an adverse ruling, to carefully consider whether they should actually file the case for certiorari (“cert”), asking whether there might be any potential strategic advantages to waiting, both from a business or practical perspective – where there’s a conflict among the circuits, might it be better to let an unfavorable ruling stand than to put favorable rulings elsewhere at risk – and also in terms of possible changes on the Court.  Once the decision is made, the most important element of any petition for cert is to convince the Court that there is a split in federal circuit courts that needs immediate resolution.  He suggested involving interested groups, potentially as amici at this early stage.

If you are rejected, don’t lose heart: roughly 10,000 certs are filed annually, and only 60-80 are actually heard by the Supreme Court, so the odds are stacked against you.  Mark Fleming pointed out that this situation is increasingly dire as the Court has recently taken fewer cases annually, and as of now has granted cert in only 12 cases for next Term.

If you are one of the lucky few to be granted cert, the merits briefing stage is similar to that in federal courts of appeals.  The Supreme Court took the case likely in recognition of the circuit split, so the Justices will be looking for you to make strong arguments based on precedent (mostly from the Supreme Court), and policy concerns.  Here again, amici can be helpful in making policy arguments and providing the Court with the information they need to understand complex issues and facts.

You Got There!  Now What…

MF smallMark Fleming gave a complete rundown of what it’s like to have your day before the Supreme Court.  It was a fascinating look at the nitty-gritty elements of this highest practice.  Here is his advice:

  • As with any appellate argument, you need to be ready for any questions . . . and for no questions. He anticipates questions by looking at the opponent’s briefs, lower court opinions, amicus briefs, and briefs and oral arguments in all prior relevant cases.  He also noted the value of moot courts.

He also stressed the importance of knowing EVERYTHING – in one case he argued, Fleming was well served by doing his homework when a Justice asked about a case cited in an amicus brief allowing him to clarify, to a judge who clearly hadn’t gone quite that deep into the record, that the entire opinion offered less than one-half a sentence of analysis on the issue at-hand.

  • Have a plan for oral argument. The Justices rarely let you speak for more than a few minutes at a time without interruption, but be prepared in case that happens.  Also, your plan can serve as a roadmap to help you get back to your main points in between questions.
  • Arguing before the Supreme Court is unlike arguing before any other court.   First off, you face at least 90 minutes of logistics.  Even if you are arguing the first case at 10:00 am, you need to get to the Court around 8:00 am to get through security.  Until 9:00 you are simply held in a public space full of tourist chatter, after which you are brought to a lawyers’ lounge for a briefing before you undergo a second security check (be sure to bring a quarter for the locker to store everything you’re not bringing before the bench!) and are brought to the courtroom.

At that point the fun is only beginning.  Once there, you need to figure out what side you will be arguing from – generally, from the bench’s perspective, the petitioner is on the judges’ right and the respondent is on the left . . . but if the federal government is arguing (even as amicus), it and any party it supports are always on the left.  At 10:00 the Justices enter, but you still don’t get to deliver your painstakingly prepared remarks – first, opinions are delivered, and then the court handles bar admissions (“a really nice ceremonial thing” that he recommends pursuing), all before oral arguments begin.  If you weren’t stressed out before, you certainly will be by that time.  And if your case isn’t first on the docket, get enough breakfast and/or coffee to keep you going.  After your 30 minute argument flies by, you at least get a keepsake – by tradition dating back to the Court’s earliest days, goose feather quill pens are laid out on the counsel tables , which lawyers are encouraged to take as souvenirs.  Fleming brought his to show to the group.

MF feather quills smallArguing Before the Court

Traci Lovitt spoke about her experience in the Solicitor General’s office and the techniques they teach their attorneys about arguing before the Court.  Dalila Wendlandt spoke about her experience of working on a Supreme Court case as a new lawyer – so new, she had to be pulled out of her firm’s orientation to start working on the brief.  Here are their pointers for argument:

  • Be ready to make the difficult case. When Wendlandt first read the case against the client, she knew they were facing an uphill climb and it was time to “roll up her sleeves.”  The argument in her case danced around a number of complex issues including flying in the face of popular and long-standing Supreme Court precedent and some challenging factual circumstances.

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  • Know your audience. Wendlandt stressed that the only way she was able to overcome the challenges noted above was by studying the positions of the Justices and attempting to carve out arguments that would earn them the support, one by one, of at least five, the magic number of majority.  Everything was in play and some inconclusive footnotes on obscure opinions ended up playing a major role in revealing arguments that would appeal to certain Justices.
  • Focus on an active bench – if you haven’t fielded any questions for 15 minutes or so, sit down! An absence of questions indicates a conviction for your side; don’t UN-convince them.  This rarely happens, especially recently when Justices often ask (and answer) questions, instead of letting the advocates speak, as they work to figure out their own positions.  Lovitt wondered aloud whether this dynamic might change with the passing of Justice Scalia, and noted that in one of her oral arguments, she fielded (or at least, was asked) 18 questions in the first 10 minutes.
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Thus, the order and form of answering is extremely important.  Lovitt was trained to give answers couched in explanation, first noting how many points she would make and even signaling the number of points with her fingers.  She then tries to give at least a short answer on each point before delving in deeper if given the time.  This roadmap answer format at least gives Justices who support your argument the tip that they can follow up if you are interrupted again, allowing you to complete your answer.

  • Unless you are very experienced, do not use the names of Justices in your argument. You will mess up leading to a sharp rebuke and often a joke.  Kevin Martin shared that when an attorney arguing in Bush v. Gore called Justice Stevens, “Justice Brennan,” and Justice Souter, “Justice Breyer;” Justice Scalia piped in, “I’m Scalia.”
  • Be assertive. Arguing before the Supreme Court is intimidating, but you need to make your points and answer the big questions.  This may mean giving Justices brief answers to their questions before returning to the larger points you want to make, or even *gasp* politely explaining that you need to explain another point before addressing their answer.  And if the light goes on to signal that your time is up, but you haven’t finished responding to the last question, you need to ask, deferentially, for a few seconds more.  Lovitt told the story of one practitioner who froze in that moment, like “a deer in the headlights,” failing to make one final, critical argument.

Thank you again to our panelists and moderator and to everyone who attended this fascinating discussion.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association