Posts Categorized: Superior Court

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

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

SJC Overhaul

Gov Baker SJC Nominees

It’s been quite a week, with major implications for justice in the Commonwealth for years to come, as the Governor announced his three nominees for upcoming Supreme Judicial Court (SJC) vacancies on Tuesday.  The SJC is not only the highest appellate court in the state, issuing approximately 200 full bench written decisions and 600 single justice decisions annually, but its justices are also responsible for the “general superintendence” of the judiciary and the bar.  This function includes making, revising, and approving rules for the operations of the courts and providing advisory opinions to other branches of government.  For example, over the past few months, the BBA has taken part in commenting on proposed revisions to civil procedures for various court departments aimed at improving the cost-effectiveness of litigation.  This overhaul originated with the SJC and final revisions will be approved by an SJC led committee before being codified.  It is all but impossible to overstate the huge role this court plays for justice and legal practice in Massachusetts.

What is Changing?

Therefore, it is truly remarkable that this Court will be going through such a major change in its makeup in so short a time.  With five of the seven justices leaving by the end of next year, the first three replacements are only part of the picture.  The justices leaving before the court’s next session in September are Robert Cordy, Francis X. Spina and Fernande R.V. Duffly.

  • Robert Cordy – In February, Justice Cordy announced his early retirement (at age 66, four years short of the mandatory retirement age). He was appointed to the SJC by Governor Paul Cellucci in 2001.  Justice Cordy graduated from Harvard Law School and started his legal career with the Massachusetts Public Defenders Office.  He then worked for the Department of Revenue, the State Ethics Commission, as a Federal Prosecutor in the US Attorney’s Office in Massachusetts, as a partner at the law firm Burns & Levinson, and as Chief Legal Counsel to Governor William Weld.  Prior to his appointment to the SJC in 2001 by Governor Paul Cellucci, Cordy was Managing Partner in the Boston office of the international law firm of McDermott, Will & Emery.  He has served as Chair of the SJC Rules Committee and in leadership roles in a number of other court committees, including those focused on media and capital planning.  He has not yet announced his plans after stepping down from the state’s highest court.
  • Fernande Duffly – will retire on July 12, at the age of 67, a move she explained is to help her husband recover from a recent surgery. A native of Indonesia and a graduate of Harvard Law School, Justice Duffly started her legal career at a Boston law firm then known as Warner and Stackpole.  She served on the Probate and Family Court from 1992-2000, the Appeals Court from 2000 to 2011, and was appointed to the SJC in 2011 by Governor Deval Patrick, becoming the first Asian American member of that court.  Throughout her career she has demonstrated a commitment to supporting women and diversity in the law.
  • Francis Spina – From Pittsfield, Justice Spina graduated from Boston College Law School before working in legal services for two years. He eventually became an assistant district attorney before becoming a partner in a Pittsfield law firm.  He was appointed to the Superior Court in 1993, then to the Appeals Court in 1997, and to the SJC in 1999 by Governor Paul Cellucci.  He will reach the mandatory retirement age of 70 on November 13, 2016, but is stepping down on August 12.

Of the seven current SJC Justices, Spina and Cordy are the only two who were nominated to the SJC by Republicans (both by Paul Cellucci).  Obviously that is going to change soon as Republican Governor Charlie Baker starts to shape the court.  His three nominees to fill these spots are all former prosecutors and current Superior Court judges, Kimberly S. Budd, Frank M. Gaziano, and David A. Lowy.

  • Kimberly Budd – A resident of Newton and graduate of Harvard Law School, Budd began her legal career with the Boston law firm Mintz Levin. She then became an Assistant U.S. Attorney before serving as University Attorney for Harvard and later as Director of the Community Values program at Harvard Business School before her appointment to the Superior Court in 2009 by Governor Deval Patrick.  She served as a member of the BBA’s Education Committee from 2006 to 2007 and Council from 2003 to 2005 prior to her appointment to the bench.  After becoming a judge, she served on the Boston Bar Journal Board of Editors from 2012 to 2014.  Budd will be the second black female justice on the SJC after the 2014 appointment of Justice Geraldine Hines.
  • Frank Gaziano – Graduate of Suffolk University Law School, he started his legal career at the Boston law firm of Foley, Hoag & Eliot (now Foley Hoag). He also worked as a prosecutor in the Plymouth County District Attorney’s office and the U.S Attorney’s office.  Gaziano was appointed to the Superior Court in 2004 by Governor Mitt Romney.  He served on the Boston Bar Journal Board of Editors in 2011 and 2012.
  • David Lowy – A resident of Marblehead, and graduate of Boston University School of Law, David Lowy has served as a judge since 1997, first in District Court and then, since 2001, in Essex Superior Court. Prior to his appointment to the bench he worked as an associate at the Boston office of the law firm Goodwin, Procter & Hoar (now Goodwin Procter) and as an assistant district attorney.  He also worked as Deputy Legal Counsel to Governor William Weld from 1992 to 1995, under whom Governor Baker also served as a cabinet secretary.

The Process

These three nominees emerged thanks to the hard work of a special 12-member Supreme Judicial Court Nominating Commission (Special JNC) established by the Governor in February to assist the current Judicial Nominating Commission (JNC) in vetting all of the SJC applicants and nominees.  BBA President Lisa Arrowood is a member of this panel along with a number of former BBA leaders.  The Special JNC is co-chaired the Governor’s Chief Legal Counsel Lon Povich and former BBA President Paul Dacier, who is also chair of the JNC and executive vice president and general counsel of EMC Corporation.  The other members include:

  • Former SJC Chief Justice Roderick Ireland;
  • Roberto Braceras, Vice-Chair, JNC, and Partner, Goodwin Procter LLP;
  • Brackett Denniston, retired General Counsel of GE;
  • Retired Superior Court Justice Margaret Hinkle;
  • Marsha Kazarosian, immediate Past President, Massachusetts Bar Association, and partner, Kazarosian Costello;
  • Joan Lukey, Partner, Choate Hall & Stewart, LLP;
  • Elizabeth Lunt, Of Counsel, Zalkind Duncan & Bernstein;
  • John Pucci, Partner, Bulkley, Richardson and Gelinas, LLP; and
  • Carol Vittorioso, Vice-Chair, JNC, Partner, Vittorioso & Taylor.

We have explained the JNC before, but, to briefly review, the JNC is a group of diverse individuals appointed by the Governor (the regular JNC has 21 members, while the Special JNC has 12), with great knowledge and experience with the court system.  Members of the bar must have at least seven years of practice experience.  The JNC provides a first layer of review for judicial nominees – identifying and inviting applications by qualified individuals, reviewing applications, and interviewing candidates.  The group conducts votes requiring an increasing number of approving Commissioners at various steps of the process, narrowing down the list of individuals until a final vote requiring a 2/3 majority is conducted to see which applicants’ names will be submitted to the Governor for consideration for nomination.  They typically provide between three and six candidates for each vacancy.  The Governor’s Office then selects its candidates, here, Budd, Gaziano, and Lowy.

What’s Next?

The next step is approval by the Governor’s Council, a group of eight individuals elected every two years and the Lieutenant Governor, who serves ex-officio as president of the Council.  The Councilors review the nominee’s backgrounds, interview them, and hold open hearings where their supporters and opponents have the chance to speak.  The three candidates have already been approved by past iterations of the Council as they are all currently on the bench, but nothing can be taken for granted.

In fact, the process is already garnering media attention as the Council has taken issue with Lt. Gov. Karyn Polito’s plan to preside over the confirmation hearings.  Councilors typically preside over confirmation hearings for lower court judges, but it has been common practice in recent years for the lieutenant governor to preside over hearings for SJC nominees.  However, Councilors challenged Polito, alleging that her presence at the upcoming confirmation hearings will be an unfair publicity grab and was disrespectful to the Council members.  Polito cited historical precedent for her intended role.

The schedule for nominee hearings is set and we look forward to keeping you updated on their progress.  The hearings are all at 9:00 am in Room 428 of the State House as follows:

  • July 6: Judge Frank Gaziano
  • July 20: Judge David Lowy
  • August 3: Judge Kimberly Budd

Finally, keep in mind that this is only the beginning.  The SJC overhaul continues next year as Justices Margot Botsford and Geraldine Hines will both reach mandatory retirement age, Botsford in March and Hines in October.  While we don’t know who will come to the fore as nominees then, a couple of qualifications to look for include:

  • A resident of western Massachusetts – Francis Spina, the only Justice from this region, hails from Pittsfield, and is retiring this year. Nominee Kimberly Budd is the daughter of former U.S. Attorney Wayne Budd, a native of Springfield, but she grew up in Peabody and lives in Newton.  When asked about geographical diversity at his press conference to introduce the nominees, the Governor urged patience.
  • A judge from the Appeals Court – Governor’s Councilor Eileen Duff questioned, as did the Boston Herald, why none of the current nominees came from this court, experience she felt would prepare them well for the SJC.

Throughout this process, the Governor has frequently repeated that he is simply looking for the best candidates.  He and his office continue to encourage strong candidates to apply and are committed to continuing the remarkable traditions of the SJC.  However, the maintenance of a great and diverse bench relies on a great and diverse candidate pool.  The Governor has done his part by creating a remarkably diverse JNC and Special JNC under all metrics from geography to demographics to practice field and size.  It is up to candidates now to apply.  We look forward to seeing what the state’s highest court looks like at the end of this process.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association

BBA Weighs-in on Proposed Superior Court Practice Changes

Ever since he became Chief Justice of the Supreme Judicial Court, Ralph Gants has been talking about reforming civil litigation.  In his first State of the Judiciary address in late 2014, he laid out a plan to form working groups in various Trial Court departments that would examine creating a “menu of options” for cost effective civil litigation.  Soon thereafter, we began fieldling calls from the various departments requesting the service of BBA members.  We were pleased to place a number of interested individuals on these panels.  They spent the next year meeting and discussing ways to improve practice in the courts, and now we are beginning to see the results.

Superior Court was the first to submit its working group’s draft proposal to the public comment process.  The proposal consists of three parts:

  1. Menu of Options – provides a right to individual case management and tracking at the option of the parties and with approval of the Court. The parties would have the opportunity to agree to vary standard procedures in one or more ways, including the procedures that otherwise govern discovery, trial, and post-trial events.  For example, the parties could agree to an early and firm trial date, with or without a jury, and with a variety of limits on the quantity and kind of evidence.
  2. Pilot Program for Early Case Management Conferences – would require an early case management conference in four case categories: real estate, construction, products liability, and employment discrimination. The proposed pilot program would provide an opportunity to assess the value of early case management conferences and the time required to conduct them.  In each case included in the program, the Court would convene a conference with the judge and counsel within 90 days after service of process.  Prior to the conference, the parties would be required to confer, to exchange written settlement proposals and responses, and to complete a standard form addressing case management.  An amendment to Superior Court Standing Order 1-88 would establish procedures for the conferences, and provide the form for the parties to prepare and submit. In addition, to facilitate conducting the conference early in the life of the case, as provided in the proposed amendment to the standing order, the Superior Court would recommend that the Supreme Judicial Court amend Rule 4(j) of the Massachusetts Rules of Civil Procedure to reduce the time limit for service of process from the present 90 days to 30 days, or to provide for a more expeditious alternative similar to the process now used in federal court, where service is required only when a defendant fails to respond to notice by mail.
  3. New Rule on Expert Disclosure – as is already required by the court’s “Notice to Appear for Final Pre-Trial Conference” in Superior Court Standing Order 1-88, the new rule would require that unless the parties agree, or the court orders otherwise, each party shall set forth certain information in the final pre-trial conference memorandum relating to any expert that a party intends to call at trial.

The proposed Superior Court initiatives were reviewed by all BBA Sections.  The Business and Commercial Litigation and Insurance and Tort Litigation Sections drafted comments that were reviewed and approved by BBA Council and submitted to the Court on March 16.  Members of both Sections were generally supportive of the proposals and felt that proposal #2 had the most potential.

They also had some specific concerns.  For example, on proposal #1, some members felt that it was unclear how the rules would work within the Superior Court’s judicial circuit system, in which judges rotate through courts, despite that fact that the proposal calls for increased judicial involvement.  Members also voiced concerns about the implications of the non-binding judicial case assessments in which it was unclear whether the judge would just be giving their “off-the-cuff” thoughts about the case, how wedded they might be to those early opinions, whether there would be any uniform formal process, or whether procedural decisions would all be in the hands of the individual judge and attorneys.

Some members voiced concerns about the reduction of time to effect service of process from 90 days to 30 days contemplated in proposal #2, which would cut down on the time often used for case resolution.  Finally some members felt that proposal #3 would not make a significant change in practice.  To read the full comments, click here.

We look forward to keeping you updated when the Superior Court releases its final plan for more cost-effective civil litigation, and analyzing the implications for practice.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association